IMAGE EVALUATION TEST TARGET (MT-3) // ^ .<^ A DEFENCE TO CRIME, WITH NOTES. BY v., ■^»- JOHK D. LAWSOIS^, •• The Comract/o. CoJ^rcrWers'tr^S"^ '""""'^■"•- " '/'litre I, /". i.awsox, IniheiMrceof ,i,c I.lbran.-m ..f C.njjre,. m. Washington. Tlic (le,« tlic report !i (•riniinal justice in . tlie topic ( wore othei insjinity is contain on t '»'»()!<, there in the trial .'luthorities tion such a i labor and e.\ In the no •'^tatcnient o ('liminal Ca? •*^i. Loiis, J .S7. Lnuis. Mo. Prtss "/ Xiroii Jouts Printing Co. PREFACE. The (1 L'>^iirn of this \v(„.|^ is 1 tlic reported " present i ^''''^^'•"^ wlicr,. insMJiitv hiis I Ji a .siii^'<'»i •^('t up in defence of "H-n passe.l upon hy •'I fourt of '•'tain, r h vre) tl •y reported case of this kin.l. If '0 topic of Insanity the.i the were other ciuestJans involved ive endeavored t f^ ffive the case turned wholly on case is (»()k, therefc '" the trial of >■«'. uiil enable the jud >"ndinthis vol I'opoit.s unie Th Is .'inthorities my cause wheie this or and expense some five 1 inie >e obtained I In the notes I hj umdred volume.^ nee is urged, all the Without this collec- >y procuring at m-ait of .statement of the law rel Criminal Cases ive tried to set out report." fai-cfid and thorou<^h '^ting to the defence of Insanity in St. Lot IS, March, iys4. ''. D. L. Toe Legal The Blude DlUXKEXXE Klei'tomani KVTDENCE A? IXSAN.TY AT CONTENTS. 'V.' •!' CIIAI'TKK I. The Legal Test of Insanity I'Ai.i:. CIIAPTKK II. The Blkden of Pkoof of Insanity . 327-532 (IIAPTKH HI. DiU-NKENNESS 533-7G8 CIIAITKR IV Kleptomania and Sojinambilism . 7()9-781 CilAlTEIi V. KVTDENCE and PRACTICE . 7S.5-8.S0 CHAPTER VI. Insan.ty at Trial ou after Conviction 881-1)11) (V) TABL [TIk; p.'ijro Tims: , Vko r. Stat A'lurican L Vll(l(TSOU V Aiulersou v Vnonynioijs \niiour I', f Arnold's Cii; Cited in 11. ;i(;; ;!:»:) (i Arnold V. St I{.icclgalupo Cited in i5iicon V. Chf IJailcy V. Sta Cited in Ualdwln V. S Cited in 1 (187U) ISall's Case, i lianks V. Goo Hurtholoniow HaxtLT V. Abl Ik'usiey v. St Cited in 1 TABLE AiND COXCORDANCE OF CASES. Tl.u>: Anderson .. State. 4. Cuuu. .14. i. reportcc. iu full on p!^ 12»." ' Vko J-. State, fi Tex. CA|)p.) ;!;.h. p. 84;}. A-urican Life Ins. Co. „. A.ssotts, I Va. St. 17.:, p. 443. ViKlersou V. State, 4i' Gu. :t. p. jic. Amlersour. State, 43 Conn. 514. pp. 129, Jro, 8C!). Viionymou.s, 1 Salk. i:,-j. p. mk<;. \nnoiir i-. State, i\:\ Ala. 17,!. p. htu. >n,ol,IVs C«»c, „; „„„.. St. Tr. „.,-,. „„. ,;;, ,„, ,o«, ,,3, 314, 3„-„ ;:,r, «. Arnold V. State, 1.'3 Jnd. 170. p. 12:,. H.icclgalupo y. Cora., 33 r.ratt. 807. pp. 24,5i'l. Cited in Dejarnette v. Com., 75 Va. 8(;7 (1881). l5acon V. Charleton, 7 Cu.sli. 581. p. 79.). lifiUcy V. State, 2(1 Ind. 422. p. 753. Cited in FLsher 0. State, 04 Ind. 435 (1878). lialdwm .. State, 12 Mo. 223. pp. 13, l.;, 395, 42.;, 428 ^as-.n'' tI' '• ''''' :' ''"• '''' ''' ^''''^ = State .. Redcmeier, 71 Mo 17. (18/ U); Thomas v. State, 40 Tex. (JO (1874). liMlI's Case, 2 City Hall Rec. 85. p. 85(;. li='Mks v. GoodfcUow, L. R. 5 Q. B. 54'J. pp. 82, 83, 84. Hartholomew v. People, 104 IU. (J05. p. 76.S. Haxter V. Abbott, 7 Gray, 71. p. Vlll TAULi: AM) CONCOKUAXCK <»!•' CASKS. Uilliimlianrs Caso, 5 ('. v*c I'. .Jti'.t. pp. CJ, l'.i7, :ilS, lM'.', l'l'o, •_':ll, -jjii, ;i47, ;ifl.', ;i77, Jii.i, \\H, ihii, :;:.i . C/ie(J in State (•. Joiu-s, '.0 N. II. ;;(;;» (IH71); Iloswcll r. State, •:;', Ala. WSJ (lH7'.t); State J'. MeCoy, ;;t Mo. j;l.i (lf'14); Stale /•. ImIIci', L'j Iowa, t;7 (18118); C'liole*' r. .Siatt", ai tiu. 4l'4 (1m(;()); UoIhtIs r. .stale, ;> lia. I'.lo (1847); (Jraliaiu v. Com., HI H. Moii. 587 (18.">.'i); llopps i\ IVople, ;il III. 385 (JHt;;;); state r. itartlelt, J;! N. II. 2l.'4 (IM';I); People t'. I'liiL", L' Marl.. Ct;i; (ls|H); People r. Montiioiiiery, !:! Al)h. Pr. (N. s.) l'o7 (1^70); Peoi.le V. Cuffniuu, -Ji Cal. i.';;o (18t;4) ; U. o. Offonl, o C. Jc P. Iti'.i (lf<;!l). Hcuuett i\ State, Mart. .<; V. i;i;;. pp. o71, 711. Cited in People r. Koliliisoii, -' Park. l';ij (18JJ). Ik-riiiii '". State, ;;i Ohio St. ill. p. .".18. Cited ill Ford r. state (Ala.), H; Uep. (;47 (i8!S:>). • Ikverley'.s Case, 4 Coke, li'.V*. pp. ;'.12, 58t;, (',28, (Kll. Cited in People r. Ko^ers. is \. Y. !• (1858); State r. Pike, 4'.' \. II. ^W (1X70); Coniwell r. Stat*', .Mart. & Y. 147 (l8L'7); State i-. Tatfo, 50 N't. 48i{ (1878). Hilmuirs Case, Whart. C. L. :io. p, :',7. Uml V. State, It Ca. 4.'.. p. 542. lUnlsair.«* Case. p. 741. Biveiis V. State, 11 Ark. 4(;n. p. yM;. Blackhiini )\ State, L';? Ohio St. 14i;. pp. '_'5s, 270, JKU. Cited in Boswcll v. State, c;'. Ala. .121 (187'.') • niaiichard v. Ncstlo, .3 Dcnlo, ;}7'. )). :114. Hlimin v. Com., 7 lliish, :'.2,'. pp. 5^12, 07.», 727. Cited in Siianiiaiiaii r. Com., 8 Hiisli, 4(i;> [8 Am. Rep. 4ilj]. Koarilmaii v. Wooilmaii, 47 N. II. 120. pp. s:!, S4, iU, .■112, r,U. Boml V. State, 2;'. Ohio St. ;'.4'.i. p. 518. Citrd in Heriiiu r. Stati', 111 Oiiio St. Ill (18711); State r. tiroar, 2'.> Miuu.221 (1882). Bond V. State, 17 Ga. I'.i4. p. 54(1. Bonds ?'. State, ^lart. & Y. 14.!. pp. i)04, '.'17. Bonfanti v. State, 2 Minn. 128. pp. I't2, 372, 518, 590, 010. Cited in State v. Feltcr, .^2 Iowa, 40 (1871); State r. Gut, l.S Minn. 34.'? (18(18); Strauder r. State, II W. Va. 745; Boswell's Ca.sc, 20 (iratt. 8(10 (1871); Slate r. drear, 2'.i Minn. 221 (1882). Boswell t). Com. (or Boswell's Case), 20 Gratt. 8(10. pp.24, 521, «92, 727. Cited in Strander v. State, 11 W. Va. 745; Dejarnette v. Com., 75 ^'a. 8(17 (1881); Baeei.iraliip()?'.(;()m., I'.llCratt. 807, lid Am. Hep. 7'.'5 (1880); Pordc Statu (Ala.), l(i Kep. (147 (188;i) ; Statu v. Robinson, 20 \V. Va. 713 (I882i. Boswcll r. State, (53 Ala. 307. pp. 300, 324, 352, ."14. Cited in Ford r. State (Ala.), Id Rep. (147 (iss;;). Bovard Cited I 5'1 .N liowdth r Bradley '•. Citnl (1S7' (lb'' liiinkley v. Briltain v. Brotlierton Cit'd How Brown r. C Cited ii Brown C Bryan v. W Burke r. Al Biiri^e.ss r. ( Burrcll r. S Cnlvin r. St Cannldiael, Carr r. Clou i':irler r. St; Cited in (ls7(V (Ai)p. Cirter v. St Cartwright Chamberlaii Chase v. Pe Cited ii 745; (1871 C47 (: Choice V. Si Cited i (1877 45 Ga Clapp V. Fu TAHLK AM) (H0); (•iiniilunluuii p. State, ot; Mi>.s. L'i;'.i, ;;i Am. \lv\). Wu (Is7!i). Uowdiu r. I'coplf, 12 IIiiii, Kt. pp. H07, ><^'<\ ■ Bradli'y r. Statr, :!1 Iiid. \'X2. \)\). 114, ;'.1'4, 7»s, 7'.M, hiU, h77. Cited in Flslior t. State, lU lud. 4;i,") (1s7h) ; (iiiefiu <'. State,*;;; Iii.l. 27s (IH78); Suwyer r. State, Do Iiul. 80 (l»7l) ; McDougal u. Slate, 88 Iiul. -'♦ (188^). ICinkk-y v. State, 58 (Ja. l".m;. pp. l'.il', hCO. Urittaln w. Allen, li Dev. ll'O. p. 88t;. HrotluTton r. People, 75 N. Y. IJii. pp. 44, 45, 4il, 52, 5.'?, 501, 529. Citrd in O'Coiiiiell v. People, H7 .N. Y. ;177 (I8b,i- People r. O'Coiiliell, 'i-' lluw. Pr. 4;it; (1881); Walker «. People, I .\. V. Ciim. Uep. 7 (1881). IJiowii r. Com., 78 Pa. St. 1_'2. |>p. 2«3, 444, 520. Cited in .Myers r. Com., 8;5 Pa. St. 141; Pani. !< u. Com., 80 P'. St. 2(;()(1S78). Urown Coin., It Hush, ;!it8. p. 517. Uiyaii V. Walker, 20 (la. 4sii. p. 542. Miirke v. Alien, 2:i N. II. Km;, p. :!l;i. Miirge.ss »•. Com., Va. Cas. 28;^. p. 5^7. Miirrell r. State, 18 Tex. 71;!. i». 854. C;ilviii r. State, 25 Tex. 7;t5. p. 710. Carinlchael, In re, :w; Ala. 514. i>. H5. <';irr /•. ClouL'h, 2r, N. II. 4so. p. .".i;!. I'.irter V. State, 12 Tex. 500. p[>. 2(;'.i, 5;i2, 5SS, 711, 74«, 870. Cited in Thomas ?-. State, 40 Tex. "iO (1S74) ; Zenibroil v. State, 25 Tex. 5i;t (1S7II): U'en/. >\ State, 1 Tex. (App.) ;i(l (I87r,) ; Webb v. State, 5 Tex. (Ai)p.) 5'.m; (187'.0. ('.irtcr V. State, SC (ia. 4(;8. ji. 874. Cartwrlght v. State, 8 Lea, 37t;. pp. 652, 754. Chamberlain of London c. Evans, 5 Bl. Com. 14:». pp. .'513, 570. Cha.se v. People, 40 111. 352. pp. 372, 4<;2, 471), 52(1, 5'.'!i. Cited in State o. Fclter, 32 Iowa, 4!) (1871); Strander v. State, 11 W. Va. 745; State r. Crawford, 11 Kas. ;'.2 (1875); Boswell'.s Case, 20 (iratt. sr.o (1871) ; Wright v. People, 4 Neb. 40U (1871)) ; Ford v. State (Ala.), hi Uep. 647 (1883). Choice V. State, 31 Ga. 424. pp. 232 301), 538, 8(;0. Citrd in Pierce r. State, 53 (Ja. 3(15 (1874); Brinkley v. State, 58 Ga. 2!t« (1877); Humphreys v. State, 45 Ga. IHO (1872); Westmoreland v. State, 45 Ga. 225 (1872) ; Estes v. State, 55 Ga. 30 (1876). Clapp V. FuUertou, 34 N. Y. I'JO. p. HI. TABLE AMJ CONCORDANCE OF CASES. Clark V. Ostraiidcr, I Cow. 441. p. H8f!. Clark V. StKc, s Ti-x. (App.) :'..V1. pp. 260, :.:'.l>. Clark I'. State, 12 Ohio, 48.'? (40 Am. Doc. 4KI.) pp. !)o, 2:11, 258, 4;;5, ST'.l. Cited in McAllistiTf. State, 17 Ala 4;$4 (18jn); Slate v. Felter, 25 Iowa, 07 (IHC.S); ThoMia.s V. State, 40 Tex. (!0 (1874 ;•; Bcr^Mu r. State, ;?1 v)liio Si. HI (1>!7(:); Blaekhurii v. State, 23 Ohio St. 14(! (1872): Farrcr v. State, 2 Ohio St. 70 (1853); Loeffner v. State, 10 Ohio St. 5'J8 (1857). Clark V. Sawyer, 2 N. Y. 4'.i8. p. .".U. Clark's Case, 1 Cit}- Hall Kee. 177. pp. 2;;4, 2.S7. Cited ill Macfarland's Case, 8 .Vbb. Pr. (\. s.) 57 (1870). Clary v. Clary, p. 404. Clem V. State, 31 Incl. 480. i)p. 124, 12;) Cluck V. State, 40 Ind. 2(;3. p. 748. Citod in Yisherv. State, (;4 lud. 435 (1878); People r. llobinson, 2(i \V. Va 713 (1882). Coffee V. State, 3 Yers. 283. p. 509. Colbath V. State, 2 Tex. (App.) 3;il. p. 751. (■ol.''s Case, 7 Abb. Pr. (n. s.) 321. pp. 220, 234, 270, 857, 8(10, 8(14. Cited in Macfarland's Case, 8 Abb. Pr. (s. s ) 57 (1870). Com. V. Braley, 1 INIass. 103. pp. 27,881, inc. Cited in J ones V. State, 13 Ala. 153 (1848) ; People v. Kleim, Kdm. Sel. Cas 13. Com. V. Coc, 115 Mass. 418. p. 801. Coin. V. Daua, 2 Mete. 340. p. 4<;it. Com. V. Dorscy, 103 ^lass. 412. p. G(;7. Citfd in llopt v. People, 104 U. S. G31 (1882) ; State v. Kobinson, 20 W. Va. 713 (1882). Com. V. Dougherty, 1 Bro. App. XVIII. p. 728. Com. V, Drum, 8 P. F. Smith, 22. pp. 43'J, 040. Com. V. Kddy, 7 Cray, 583, I'.t Law Rep. t'dl. pp. 301), 3!)4, 413, 489, 5t7, 599, 854, 803. Cited in King i'. State, 9 Tex. (App.) 558 (1880); Boswell v. State, 03 Ala. 325 (1879) ; State v. Iloyt, 47 Conn. 518 (1880) ; State v. Lawrence, 57 .Me. 574 (1870); Strander v. State, 11 W. Va. 745; State v. Vann, 82 N. C. 031 (1880); State v. Bartlett, 43 N. 11. 224 (1801); BoswcU's Case, 20 Gratt. 800 (1871); State v. Klinger, 43 Mo. 127 (1808); State v. Grear, 29 Minu. 221 (1882). Com. c. Fairbanks, 2 ,\Uen, 811. p. ill. Cited in State v. Stiekley, 41 I:i. 232 (1875). Com r. Farkin, 2 Pars. 4;V,i; 2 (.'lark, 20S. pp. 2.>{), 300. Cited in Com. v. Freth, 3 Pliila. 105; 5 Clark, 455 (1858). TAULE AND COXCOHDAXCF OB' r.\si;s. XI ('oi:i. V. Frcucli, Tliatcli. Cr. Cas. n;;;. p. -,si. I'om. V. Froth, ;; I'liila. in:,, r, Clark, 45J. pp. :!7, -Ji,'.), -jo;, 2W). Ciird in Coin. v. Winnoniorc, 1 Jir.'wst. .'!ji; C1H(;!I); Sayri's v. Com f-s Pa St. L'lil (18711). '' ( om. V. Ilairgcrfy, i riark, 1N7. pp. 4;!!), CO!), 741, 742. Cited iti Xlchols v. State, h Ohio St. 4:!5 (1R5«) : Ortwciii v. foin 7(; p.i st 414 (1875). I '0111. 0. Hardy, 'J Mas.s. ;;i7. p. 44(;. Coin. 0. Hart, 'J IJrewst. oh\. pp. l'oI), 520, 72s, Jir,. Com. w. ilaskoll, 4 Am. L. Kfv. 210. j.p. 75, Hi, 127. Cited in State v. Jones, 50 X. II. ;;(;;» (1871); Stevcn.s y. State, ;il Iml. 485 (18G'J); Bradley v. State, ;il Iiid. 4',t2 (I8f;'.i). Com. V. Hathaway, l.'i Ma.s.s. 2;i:t. j). 27. Lited in People v. Kleini, Edm. Scl. Cas. i;!. Com. V. Hawkins, ;? (iray, 408. pj). 407, 4sw, ooo, 728. Cited in Hopt v. People, 104 V. S. I'll (1882) ; KafEerty v. People, 00 HI. 118 (1872); People v. Garliutt, 17 .Mich. 'J (180K); State u. Crear, 2;» .Mhni 221 (1882); State v. liartlett, 43 \. II. 224; State v. Robiusou, 2o W Va 713(1882). , . . Com. V. Heath, 11 Gray, 303. pp. 17, 232, 478, 517. Cited in State v. Hoyt, 47 Conn. 518 (I.S80); Wright v. People, 4 Neh. 40;. (1870); Ilauo V. State, 11 Neb. 537; 38 Am. Hep. 375 (1881); Ford t;. State (Ala.), 10 Rep. 047 (1883). com. I'. Howe, 9 Gray, 110. p. 705. Com. r. Jones, 1 Leigh, 012. pp. 000, 741. Oited in yichols v. State, 8 Ohio St. 435 (1858). Com. V. Kimball, 24 Pick. 300. pp. 372, 400, 41(2. Com. V. Kncplcy. p. 75. Cited in State v. Jones, 50 N. H. 300 (1871). Com. V. Mackie, 1 Gray, 01. p. 304. Com. V. Merriani, 7 Ma.ss. 108. p. 010. Com. r. Moore, 2 I'lttsb. 502. p. 303. Com. r. hosier, 4 Pa. St. 204. pp. 75, DO, 250, 205, 296, 300, ;;o,l, 305, 304, 427 iM, 442, 581, 027. . . , Cited in StatG V.Jones, 50 N. 11.300 (1871); State i;. Rcdomeier, 71 Mo. 177 (1870); Beasley v. State, 50 Ala. 153 (1873); Roswell v. State, C3 Ala. 321 (1870) ; State v. Felter, 25 Iowa, 07 (180H) ; Fonts ,-. State, 4(1. Greene, 500 (1854); Com. v. Moore, 2 Pittsb. 602 (1804); Com. v. Froth, 3 Phila. 105, 5 Clark, 455 (1«5«); Com. v. Winnemore, 1 IJrew.st. 350 (1807); Sayros v. Com. 88 Pa. St. 2lil (1870); Ortweiu v. Com., 70 Pa. St. 4U (1875). Com. r. McKee, 1 Gray, 01. pp. 451, 4(;o, 480, 84!t. Xll TABLE AND COXCOKUAXCE OF CASiES. Com. i\ O'llara. p. CM. Com. '•. I'omcroy, 117 Mas.s. 14:5. i)p. 799, 85'.i. Com. I'. Rogers, 7 Mote. 500 (41 Am. Dec. 45«). i)p. 5, <',, •^'2, W, 7^^, 7r,, ito, 95, ii.'7, l.Vs, 171', i:t7, 2:!i, •-'.••.L', '2:\:,, \>ox, :;(i;i, :','j-2, r.i'4, ;;(;4, ;;7:.', ;'.78, ;Jiil, 4io, 41^. 423, 435, 4G'J, 474, 475, 47il, 4S«, 4'.ii', 4'.t7, 517, 578, 5in). Citrd in Kin;,' v. Statr, 1) Tl-.x. (App.) 554 (isso); State r. Jones 50 N. II I'.tl!) (lH7it); McAllLsttT r. State, 17 Ala. 4;;4 (1850); Jleasley v. State, 5'' Ala. 150, 152 (1S7;}) ; Ho.swell v. State, (13 Ala. ;!"l (187:i) ; State r. MeCoy, 34 Mo. 53(i (18(14) ; State v. Windsor, 5 llarr. (Del.) 512 (1851); Steven- V. State, 31 Ind. 485 (18i;;i); State v. Felter, 25 Iowa, <;7 (18(;8); Stater. Lawrence, 57 Me. 574 (1870); Roberts v. State, 3 (la. 310 (1847); Stater. Felter, 32 Iowa, 4!) (1871) ; People v. (iarbutt, 17 Alich. '.) (18(;8) ; Bovardr. State, 30 Miss. COO (185(i) ; draliam v. Com. 1(1 U. Mon. 587 (1855) ; IJnid- ley V. State, 31 Ind. 4lt2 (18) ; State v. Klinger, 43 Mo. 127 (18(>8) ; State v. Hundley, 40 Mo. 41 1 (1870); People v. Kleim, Edm. Sel. Cas. 13 (1845); IT. S. v. Guiteau, 10 Fed. Rep. 101 (1882) State r. Pike, 4'.i N. II. 399 (1870). Com. V. Sayres, 12 Pliila. 553. p. 521. Affimied, Sayres v. Com. 88 Pa. St. 2111. Com. V. .Sherlock, 14 Leg. Int. 33. p. 37. Com. V. Smith, 15 Leg. Int. 03; Am. L. Reg. 257. p. 040. Com. V, Webster, 5 Cush. 320. pp. 107, 440, 515. Cora. V. Wilson, 1 Gray, 337. pp. Ill, HOO. Cited in State p. Stickley, 41 la. 232 (1875). Com. V. Wiunemore, 1 Brewst. 350. pp. 259, 268, 520. Com. V. York, 9 Mete. 93. pp. 488, 4S9, 493, 497, 802. Corey's Case. pp. 70, 48!t. Cornwell v. State, Mart. & Y. 147. pp. 583, 047, 727, 741, 744. Cited in State v. Thompson, 12 Xcv. 140 (1877) ; People v. Rob'nson, 2 Park 235 (1855) ; Pirtle v. State, 9 Humph. 003 (1849). Coyle r. Com. pp. 441, 520. Cranmer's Case, 12 Ves. 445. p. 317. Crowell y. Kirk, 3 Dcv. 355. p. 405. Cross V. State, 50 Wis. 2G1. p. 731. i f'unniiiirlia i:ited i (Jurry v. Cc Dawson v. Cited ii Dtjarnette \^ Del'Uield w. 1 )i'w ('. Clai Dickinson Donuell v. Doty I'. Sta Dove V. Sta Cited in (1879 Duchess of 1% Duiiluim's i' Kiistwood V Kilger u, Stt Kruin v. Stf Mstcs I'. Sta Cited in Fain v. Com Farrar v. St; Farrell v. P( KrlFs Case, Fcrrell v. St Citi'd in (App. Ferrer's Ca.« Cited it (1847; Ferris v. Pci Cited in Fisher v. Pe Cited in (1871 (18G3 TABLE AND roxrOUDAX( K OF CASES. Xlll Cuuniii-Imm -•. State, 5.; Aiiss. i>.;!» (;ii Am. K.'p. .".CO). ,,,,. 23;i, 3i'4, 470, 527. Cited in Vord r. Statu (Ala.), k; Hep. (;47 (l>iH;i). Curry v. Com., 2 Bush, (J7. ]>. 754. Dawson v. State, Id Ind. 428. p. 758. Cited in Fislier r. State, (;4 Ind. 4;;5 (1878). DiJarnetle v. Com, 75 Va. 807. pp. 18, 521. Dd'dieldr. Parish, 25 N. Y. 11. p. 314. Dow V. Clarke, 3 Addams, 7-.». pp. 81, 84, 314, 315. Dickinson o. Barber, It Mass. 225. p. 7'jd. Dunuell V. Jones, 13 Ala. 4!)0. p. 35IK Doty I'. State, 7 Blaekf. 427. i». 4(;!). Dove V. State, 3 Ileisk. 348. ])p. 2fi'.), 502, 531. Cited in Stuart v. State, 1 Baxt. 180 (1873) , Lawless v. State, 4 Lea, 179 (I8. I'eople, 4 Neli. 409 (187t;); Cuiinlnghain v. State, r.C Miss. 2(;!» (iU Am. Kep. J'.f.O) (187lt); Uuwe v. State, 11 Neb. o'M; ;ts Am. Kep- :i75 (18«1). Ilopt ?'. People, 104 l'. S. (;;U, pp. (MU, 754. Citnl in Statf i'.(irear, 20 Minn. 221 (1882); State r. Hobinson, 20 W. Va. 7i;l (1882). Howard c. State, 50 Ind. I'.Ki. j). 877. lluniplireys v. State, 45 Ga. I'.tO. pp. 232, 5U1. Insalis r. Slate, 48 Wis. (147. ]•. 712. .lohuson r. State, 1 Tex. (App.) HC. pp. G82, 815. Citrd in Wood r. State, :U Ark. 341, 3G Am. «ep. 13 (187'-). .lohuson r. State, 10 Tex. (App.) 571. pp. 532, 868. .loiies r. Com., 75 Pa. St. 403. pj). ({38, (Ii!7, 754. Cited in Ilopt v. People, 104 C. S. 131 (1882) ; State v. Robinson, 20 W. Va. 713 (1882). .loues r. State, 13 Ala. 153. pp. 91(>, 917. .lones r. State, 2!) Ga. (i07. pp. 612, 754, 7(;7. Cited in Marshall v. State, 5!t C.a. 154 (1877); Estes v. State, 55 (ia. 30 (1875). Jones r. State, 13 Tex. (App.) 1. ]>. 532. Kay r. State, 40 Tex. 20. p. 853. Keeuan v. Com., 44 Pa. St. 55. pp. G08, (;G7, (i'JO, 715, 754. Cited in Ilopt v. People, 104 U. S. 131 (1882); State r. .loh !"-., k'> Conn. 13r>, (1873); Kobertsv. People, 19 Mich. 401 (1850); oi . ' ^.jiuson, 20 W. Va. 713 (1882). Kelly (". Com., 1 Grant. 484. pp. ()(!7, 754. Citedin Ilopt v. People, 104 U. S. 131 (1882); State r. Kobiusou, 20 W. Va 713 (1882). Kelly r. State, 3 S. & M. 518. pp. 630, 690, 704, 706, 727, 741. Cited in People v. Kogers, 18 N. Y. 9 (1858) ; Roberts v. People, 19 Mich. 401 (1870); People v. Robinson, 2 Park. 235 (1855); Bartholomew v. People, 104 111. G05 (1882). Kenny v. People, 27 How. Pr.202; 18 App. Pr. 91. p. 727. Ki niiy (' Cil< 14 P Kiufi V. Citii (A Kin^rens Kiune II Kirlanil Krlcl r. < Lake x'.V Cited l.iuieastei Cited I.aiiersan I.aiiergan I.iuia; V. W Liiros )'. C Lawless v. Lcvcfs Ca Ley's Ca.sc Cited I Lindsay v. Lincoln v. LilUt; V. SI Lueffncr u. Cited (188 111 I Luoney v. l.opoz 0. S Lo/.a I'. St; Cited i Lumpkin v Lynch v. C Cited \ 141; 411 TAIILK A\r) COXroUDANCi: OK CASKS. XVII Kiiifi «. State, II 'IVx. (App.) 515. j.p. 844, HOH, 875. CUrain.lo\umm v. Stat.., lOlVx. (App.) 578 (1881); WVhl, .. staf -» Tex (App.) 515 (1880); Ki„. .. Stat,, Hi Te.x. (App.) L'8;5 (1882) ..::^' ('. State, i;! Te.x. (App.) 28:i. p. 875. Kiii,L'eii.S7'. State, 45 Iiid. 51. p. 877. Kiiiiie n. Kiune, Conn. 10l>. , p. 7i(;). Xirhiiul ('. State, 4.'! Ind. 140. j). 877. iM'icI r. C(„n., 5 Uu.sh. ;!(;;!. pp. 270,379, 517. Lake ,: People, 1 Park. 4!15. pp. '>?,h, 5;il, 8^7, 850, 800. Citrd in Wohh V. State, !i Tex. (App.) 507 (1880). l.a.ieaster v. State, 2 Lea, 57<;. ,,p. (157, 658, 754. card in Cartwrlght v. State, 8 Lea, ;]77 (1871) . I.auergan y, I'oople, (! Park. 200. p. 7'>4. I.aiiergan ?;. People, 50 Uarb. 2(;(;. p. ;o4. I.ang V. Wkklen, 2N. IL 4;}5. p. 313. I-ai-os V. Coin., 84 Pa. St. 200. j.p. 44;], 824, 85C, 858. l.awles.s u. State, 4 Lea, 1711. j). 531. l-'vct's Ca.se, Cro. Car. 438; 1 IJale, 42. pj,. 2G5, 324. I.'.v's Ca.se, 1 Lewin, 23'J. pp. 88!», (UC. Cited in Freaman v. People, 5 Denio, 'j (1847). l.i'Hisay t;. State, 1 Tex. (App.) 327. p. 854. ''-:ii"oIn V. lJuckma.ster, 32 Vt. 052. p. 313. !'"le V. State, 45 Ga. 57. p. 232. ;.' offner .. State, 10 Ohio St. 508. pp. 257. 370, 371, 372, 413, 432, 518, 8(5G 1 mW^ r; ,";. '' '""■"' '•' ^''''^' ^''^^^ '■' St'^t^'.Sl Ohio St 111 (18(0); State y. Klinger, 43 Mo. 127 (18G8). I-'^oney r. State, 10 Tex. (App.) 520. pp. 769, 781, 867. l.opcz 0. State, 42 Tex. 208. p. 854. Loza V. State, 1 Tex. (App.) 488. pp. (182, 758. Cited in Wood v. State, 34 Ark. 341 ; 300 .\in. Rep. 13 (1870), 'umpkin V. WiUlams, 10 Ga. 5(10. p. 542. Lynch V. Com., 77 Pa. St. 205. pp. 146, 441, 443, 520, 854 Cit^ul in King «. Com., Tex. (App.) 558 (1880) ; My.Ts .. Con,., S3 Pa Sf 'nJ-lT "■ ^''''"■' '' ^'"' ^'- ''' ^''''^ ' ^'-t^^-^'i" ''■ C-'". 70 Pa.' St.' ^11 (10/ 5), XVI II TAIJLK AM) CONCORDANCE OF CASES. MacFarland's Case, h Abb. Pr. (\. s.) 57. p. 285. Macounuhey v. State, 5 Oliio St. 77. |>. 751. Cited in Stato v. Uobiuson, 20 W. Va. 713 (1882). Maher v. Puoplo, 10 .Mich. i:'.2. pp. 4G9, C8'J. Marler v. State, C7 Ala. 55. p. 8(i(]. Marshall v. State, 59 Ga. 154. p. 729. Marshall v. State, 40 Tex. 290. p. 854. Martin's Case. p. 311. Martin v. State, 47 Ala. 5(;4. pp. 579, 580. Mercer v. State, 17 Ga. 14f>. p. 727. Cited in Estes v. State, 55 Ga. 30 (1875). Miles V. State, 1 Tex. (App.) 510. p. 854. Moett V. People, 85 N. Y. 373. pj). 253, 5;!1. Molton V. Cannoue, 2 W. II. & G. 487. p. ;513. Mooney v. State, 33 Ala. 419. pp. G90, 758. Citnl in Uoljerts v. People, 19 Micli. 401 (1870) ; Ticlsvell v. State, 70 Ala 3," (1881). Morgan, in re, 7 Paige, 23(;. p. 893. Myers v. Com., 83 Pa. St. 141. pp. 444, 520. Cited inVunmll r. Com., 8G Pa. St. 2G0 (1878) ; Coyh- v. Com., p. 442. McAdam v. Walker, 1 Dow. P. C. 148. p. 405. McAllister v. State, 17 Ala. 434. pp. 95, 231, 3G7, 514, 799, 8G0, 879. Cited in Boswell v. State, G3 Ala. 324 (1879) ; State v. Felter, 25 Iowa 67 (18G9) ; State v. Hays, 22 Lu. Ann. 39 (1870) ; Ford r. State (Ala.), IG Kep (J47 (1883). " ^' AlcClackcy v. State, 5 Tex. (App.) 320. pp. 870, 879. McDouough's Case. p. 741. -McDougal V. State, 88 Ind. 24. p. 875. .Alclntyre v. People, 38 111. 515. p. 745. Cited in Rafferty v. People, GG 111. us (1872). McKee v. People, 3G N. Y. 113. p. 867. McKenzie v. State, 2G Ark. 334. pp. 370, 514, 533, 727. Cited in Boswell v. State, G3 Ala. 32G (1879) ; Ford v. State (Ala.), IG Rcd C47 (1883). ^ ^' McLean v. State, IG Ala. G72. pp. 799, 8G0. Cited in McAllister v. State, 17 Ala. 434 (1850) ; State r. Hays, 22 La Ann 39 (1870). ■ TABLE AND CONCORDANCE OF CASES. XIX McNiiKlitun's Case, 10 CI. & F. 200 (l C. & K. 130, 8 Scott, N. R. 595). pp. :5S, 47, ,);i, •;!>, 70, 77, 78, !i:>, (111, 107, 150, 172, 221, 2U, 2(10, .lOi), ;t03, 310, 321, 324, 33'.t, 3(;0, 3(i4, 377, 427, 454, 479, 48(1, 497, 523, 553, GOO, 83(;, 837, 875, 891. Cited in Webb v. State, 9 Tex. (App.) 500 (1880) ; State v. Jone.s, 50 N. 11. 309 (1871); Fl:iiiai;:iii r. IVople, 52 N. Y. 407 [11 Am. Kej). 731]; State )' Redeiueior, 71 .Mo. 177 (1879); State ??. Iliitlng, 21 Mo. 404 (1855) : ilos- well V. State, 03 Ala. 310, 320 (1879) ; Westmoreland v. State, 45 (Ja. 225 (1872); State r. Mewlierter, 40 Iowa, '>8 (1887); Stater. FeUer, "5 Iowa, G7 (1808) ; Choice r. State, 31 Cia. 424 (1800) ; (}raham r. Com., ;(i \i. Man. 587 (1855); Hoiifaiiti r. State, 3 Mluii. 123 (1858); People v. MeCanii, 10, N. Y. 58 (1857); IIoi)ps v. People, 31 111.385 (1803); Com. ?;. Farkin, 2 Par. Sel.Cas. 439, 2 Clark, 208 (1844) ; Com. v. Fretli, 3 Phila. 105, 5 Clark, 488 (1858); Com. r. Wiunemore, 1 Brew.st. 350 (1807); State v. Bi;rtlett, 43 N. II. 224 (1801) ; R. v. Layton, 4 Cox, 149 (1849) ; State v. Spencer, 21 N. J. (L.) 190 (1840) ; R. r. Ilaynes, 1 F. & F. GOli (1859) ; People v. Coff- man, 24 Cal. 230 (1804); U. S. v. Ilolme.s, 1 Cliff. 98 (1858); Sayres »•. Com. 88 Pa. St. 292 (1879) ; People v. McCann,3 Park. 272 (1857) ; Wria;ht V. People, 4 'Wh. 409 (1870); U. S. v. (Juiteau, 10 Fed. Rep. 101 (1882); State V. Pike, 49 N. II. 399 (1870) ; Freeman v. People, 4 Denio, 9 (1847) ; Walker v. People, 1 N. Y. Crim. Rep. 7 (1881); State v. Grear, 29 Aliuu. 221 (1882) ; Ford v. State (Ala.), 10 Rep. C47 (1883). Newcomb v. State, 37 Mis.s. 383. pp. 233, 527. Newton v. Jackson, 23 Ala. 705. p. 359. Xicliols V. State, 8 Ohio St. 77. pp. 607, 75s. Cited in State v. Robinson, 20 W. Va. 713 (1882). Norrteet v. State, 4 Snecd, 345. p. 757. Norton v. Moore, 3 Head, 480. p. 508. Norwood V. Morrow, 4 Dev. &B. 442. p. 799. i O'Brien v. People, 48 Barb. 274. pp. 529, 727, 748. O'Brien v. People, 30 N. Y. 570. pp. 270, 727. Cited in State v. Stickley, 41 la. 232 (1875). O'ConncU v. People, 87 N. Y. 377. pp. 52, 409, 531, 727. Cited in Walker v. People, 1 N. Y. Crim. Rep. 20 (1881). o'Conuell V. State, 18 Tex. 343. p. 854. 0!?letree v. State, 28 Ala. (i93. pp. 402, 474, 489, 599, 089, 877. Cited in State v. Crawford, 11 Kas. 32 (1873) ; Boswell's Case, 20 Gratt. 800 (1871); Cunningham v. State, 50 Miss. 209 (31 Am. Re|). 300) (1879); State V. Bartlett, 43 N. H. 224; McDougal v. State, 88 Ind. 24 (1883). o'llirrin v. State, 14 Ind. 420. p. 758. Cited in Dawson v. State, IG Ind. 428 (1801); Fisher v. State, 04 Ind. 435 (1878). Omby'sCase, 2 Str. 700; Ld. Ray. 1845. p. 480. AX TABLK AND CONCOUDANCE OF CA8KH. Oi-twfiii I-. Coin., "C. I'a. St. 411. pp. WW, 488, 44:'., 444, ,J20, H54. CitnUn Kin« r. State, 1) Tl-x. (Apii.) 5o.s (iH'io); Uoswrll v. State, <;;i Ala. :!2(; (187!i); Hrown c. Com., 7S I'a. St. Vl'l d^Tu"); Myers «. Com., 8H Pa. St. Ill ; '.amiell r. ('oni., 8ii i'a. St. L'tIO (1H7H OHtraiii'ici r. People, 1.'8 lliiii, I'.S. p. HM Ottawa \\ (Jraliaiii, l'h 111. 7;;. p. 5l.'!i. Pauuoll i\ Com., Ht; I'a. St. l'i;o. pp. 444, 520, 521. Citrd in State v. Groar, 2'.» Miiiii. l'l'1 (1881'); Coylo r. Coni.. p. Hi'. Parker's Case, Coll. on Lim. 477. i)p, (.7, l'.i7. Cilod ill State r. .loiies, .JO N. II. .'id!) (1S71); IJoberts r. Stale, .'. (ia. ;510 (1847). Patterson c Peoj)!!', ji; Harl). i;l'5. ]). 'H'l. Peck r. Slate, I'.i hid. 170. |t. 4711. Pclamoiirges ». Clark, !• la. IK), pj). '.t4, 111. Peuusylvauia r. McFall, Add. 255. pp. 045, 724, 7:50, 742, 758. Citpd in Moonoyr. State, S.l Ala. 41!) (185!t); State v. Bullock, l.i Ala. 41H (1848); State (». McCauts, 1 Siieurs, 393 (1843); Swan v. State, 4 Humph 130 (1843). People P. All Vlug, 42 Cal. 18. ]). !I17. People ('. BattiniJ:, 4;» IIow. Pr. 3;)2. p. 7.j5. People i\ Belencia, 21 Cal. 544. pp. (1(;7, ti!)0, 754. Cited in llopt v. People, 104 U. S. O:!! (1882); People v. King, 27 Cal. .'.07 (1805); People v. Williams, 43 Cal. 344 (1872); Boberts v. ],'e0|»le, I'.i Mich. 401 (1870) ; State v. Hohinsoii, 20 W. Va. 713 (1882). i'eople r. Bell, 4'.) Cal. 485. p. 515. Citrd ill State r. Grear, 2',i .Minn. 22! (1882). People r. Best, ;!il Cal. OHO. p. 231. People V. Buml)er;j:er, 45 Cal. (120. p. 807. I'eople V. Carnel, 2 Kdiii. Sel. Cas. 200. p. 875. I'eople y. Cavaiiaufili, 02 IIow. Pr. 187. p. 2 ".4. I'eople I'. Clark, 3 Seld. ;!85. ]). 033. People D.Corfman, 24 Cal. 220. pp. 231, 514. Citnlin People v. Best. 30 Cal. C'-tO (1870); People u. Wilson, 4;> Cal. 13 (1874). People I). Coleman, 1 N. Y. Criiii. Hep. 1. ]>. 254. People V. Cummins, 47 Mich. 334. pp. (»95, 727. People c. Dennis, 31) Cal. 025. p. S(>7. People V. Devine, 1 Edm. Sel. Cas. 5'.U. \t. 234. People 0. Eastwood, 4 Kern, 3'J2. p. 747. TAULK AM) COXCOKDANCK OF CASKS. X.\l I'l'oplo V. Farrt'll, ;U Cal. 570. i.p. »00, '.'lii. I'copli' ('. Fliiluy, :{8 Mich. 481.'. pp. UO, lilW, ;io:i, oJ7. I'foplf V. Francis, ;;s r:il. 18.!. j). H63. Pfoplf V. Fuller, 'i Park. Kl. i). TS.K IVoplo ?>. Garbutt, 17 Mii'li. !>. pp. ;'.7;i, t<;L', 4({.'J, 47'.t, .•)L'7, i;'."!!, i;ii!), ;.'7, sni, 877. Cited in King v. State, !) Tex. (.*. , p.) 554 (18S0); Stiite r. Iloyi, 47 Conn. .-,!*< (1880); State i;. Felter, ;i2 lowii, <'.) (1.^71 j; St.ite r. Crawford, II Kas :;j (187:5); State r. Welch, lil Minn. IJ (M74j; Wriglit y. I'eopl.', 4 Sr\>. 4M't (187(;); State v. I'aulk, 18 S. C. 51 ■. (I88i'j; Ford r. State (Ala.), 1 iJ Hep. 047 (1888); McDouical v. State, 8;i Ind. L'4 (188;;;. IVople r. Griflln, 1 Kdm. Sel. Ca.s. IL'C. p. l';]4. People V. Ilammill, '2 I'ark. 223. pp. 407, 50i>, 030, Olio, "00. Citfd in Kenny t'. People, 31 N. V. 330 (1805) ; People i». Itouers, 18 N. V. '.' (1858) ; People v. Garbutt, 17 Mieli. !i (\»t\H) ; Koberts f. Peoi)h', I'.i Mlcli. 41)1 (1870). People V. Harris, 2\) Cal. (178. pp. O'J'J, 701, 75'.t. Cited in State v. Welch, L'l Minn. '-'2 (1874;. People y. Ilobson, 17 Cal. 4U4. pi). 281, 251. People V. Iloon, 10 Cent. L. .J. 57. p. 231. IVople V. Huntington, pi). 322, 405. I' 'oplc V. Jones, 2 Edm. Sel. Cas. 88. p. 745. l'>(>ple V. King, 27 Cal. 507. j)p. 705, 754. Citeitin People v. Williams, 43 Cal. ,i44 (1872). I'r )ple V. Kirby, 2 Park. 28. p. 51;;. IVople V. lOcim, Kdm. Sel. Cas. 13. pp. 26, 75, OM. Criticised in Cholcii v. State, 31 Ga. 424 (18(;0). People V. Lake, 2 I'iiwk. 215. p. 238. People V. Lake, 12 N. Y. 358. pp. 238, 850. Peoi)le V. Lewis, 30 Cal. 531. pp. 744, 754. Cited in State v. Thonip.son, 12 Nev. 140 (1877). IVople V. -March, Cal. 543. p. 800. rcjople I'. Mcssersmith, 57 Cal. 575. p. 514. Cited in Ford v. State (Ala.) 10 Rep. 047 (1883). PeopU' r. Mes.sersmith, 01 Cal. 247. p. 510. IVople V. Milgate, 5 Cal. 127. p. 481). People V. Moett, 23 Hun, GO. p. 253. People r. Moice, 15 Cal. 829. p. 878. XXll TAHI.K AND CONCOKUANCE OF CASKS. I'copli' i». M»mti.'<>iiu'ry, 1". A1>1». I'r. (n. s.) 207. |.. 244. Cited ill lVoi>lc u. O'Conuell, tlL' How. I'r. 4;it5 (1881). People V. Myers, 'JO Ciil. 61H. pp. ;?72, 014, fi'.tO. Citfil in I'eoj)!*' v. .MosstTsmllli, 57 Cal. .■■)7:.; Stiite ». Fflter, ,12 Iowa, 4!t (1H71); Struiidor v. State, 11 W. Va. 7»:); Mo.swell's Case, 2ti (iratt 8G0 (1871) ; People v. Coffamn, 24 Cal. 2;i"J (18(;4). Peoplf r. MeCaiin, 16 N. Y. C8. pp. 8i», 47, ".2, ;;72, 412, 401, 4(52, HW), 470, 474, 48'J, 400, Ml, WJ. Citrd in Flaimgaii r. l»eople, 52 N. Y. 4<;7 (11 Am. Uep. 7:il) ; State v. Foltor, ;{2 Iowa, 4;» (1871) ; l'eoi)lo V. Grtrbutt, 17 Mieli. It (18(;8); in^lk v. State, lit liid. 170 (1H(;2); Patterson r. People, 4ti Harli. );2o (18(1(1); llopps ; Slate r. IJart- k'lt, 4a N. II. 224 (1801) ; State v. Crawfonl, 11 Kas. :!2 (1873) ; BoswcH's Case, 20 (iratt. 8C.0 (1871); People ?-. Coffiiiaii, 24 Cal.2.^0 (1864); Stater. K linger, 4 ;{ Mo. 127 (18(;8); Ciiniiliifiliam ?-. State, 5(1 .Miss. 2(;ii, 31 Am. Rep. 3ii0 (187!t) ; Walker v. People, 1 N. Y. Crim. Uep. 7 (1881). People V. McCanu, 3 Park. 272. jip. 372, 631 . Citrd m Kliitf ". State, y Tex. (App.) 554 (1880) ; Uonfantl v. State, ? Minn. 123 (1858). People )'. McDoimeil, 47 Cal. 134. i)p. 231, 3(J4, ;;70, 514. Cited in lloswell v. State, C3 Ala. 321 (187'.t)- People V. Nichol, 34 Cal. 212. p. 754. People V. O'Coiinell, 62 How. Pr. 43t;. ).. 727. People r. Odell, 1 Dakota, l!t7. p. 751. People V. Olwcll, 28 Cal. 45(;. p. 8(1(;. People r. Pine, 2 Barb. 5(JG. pp. 37, 234. Citi'd in Fonts v. State, 4 G. Greene, 500 (1854); Willis v. P^'ople, 5 Park 621 (1864). People r. Porter, 2 Park. 14. p. 744. People «. Kobinson, 1 Park. i;4;i. p. 733. Cited in State v. Iloyt, 47 Conn. 418 (1880); Kenny v. People, 31 X. Y. 330 (1865); People c. Rogers, 18 X. Y. 'J (1858). Pcoi)le 0. Robinson, 2 Park. 235. pp. 569, 630, 66!), 6i)0, 7.39. Cited in Roberts v. People, ID Jlicli. 401 (1870) ; Nichols v. State, 8 Ohio St. 435 (1858). People V. Rogers, 18 N. Y. ;•. pp. 566, 5(;7, 569, 580, 624, 661, 666, 727, 732, 733, 755. Cited in Hopt v. People, 104 U, S. 631 (1882) ; Kenny v. People, 31 N. Y. 330 (1865) ; Cluck v. State, 40 Ind. 263 (1872) ; Triery v. People, 54 Barb. 31!) (1865) ; People v. Odell, 1 Dakota, 197 (1875) ; People v. Batting, 49 How. Pr. 392 (1875) ; State v. Tatro, 50 Vt. 483 (1878) ; Lanergan v. People, 50 B.irb. 266 (1867) ; State v. Grear, 29 Minn. 221 (1882) ; State v. Robinson, 20 W. Va. 71,3 (1882). TAHLK AND CONCOUDANCK OF ( ASK8. Will I'lnplc r. |{ii>s, L' Kdiii. }*t'I. Ciis. 4l.'M. p. S7,-,. I'. o|)U; V. Siiuclit'Z, 18 How. I'r. 71'. |). 80". I'toplc V. Scliryvor, 4l' N. Y. 1. p|». ;i'.», 511. I'.oplu V. Scott, t; Mitli. li'.it;. p. CM'.t. I'.oplo tj. Scott, 51) C'al. ;J41. p. '.tl«. IVoplc V. Sinltli, 31 Cal. UW, p. HtU. I'.ople V. Smith, 67 Cal. l:Ji). p. «t!l. I'cople V. Sprauuo, l' I'ark. 43. p. 770. 1'. oplu V. Sullivan, 3 Scld. 3!m;. p. 033. \',o\)U- V. Thurston, 2 I'ark. 4'.i. pp. 83(;, 837, H7".t. Cited in Wobb v. State, t) IVx. (Ai)p.) 605, 507 (1880). I'coplc V. Trlpler, 1 Wheeler, 48. p. 805. I'fople V. Vane, 12 Wcuil. 78. p. 44t;. I'.ople V. Waltz, 50 How. Pr. 204, j). 248. I'cople r. WiUey, 2 Park. 1!). j). 744. I'topk- r. Williams, 43 Cal. 344. pp. Otw, 727, 744, 764. Citrd in Hopt i\ People, 104 U. S. (!31 (1882) ; State v. Thompson, 12 Nev. 410 (1»77); State 0. Kobiuson, 20 W. Va. 713 (1882). IVople ('. Wilson, 4'J Cal. 13. pp. 514, 515. Cited ill People v. Wreden, 51) Cal. 341 (1881). IVople I'. Wreilen, 51) Cal. 341. pp. 515, 8(51. Pienovi'.s Case, 3 City Hall Kee. 123. \). 850. Pierce 1-. State, 53 Ga. 3, 704, 720, 742, 758, Cited in Hopt v. People, 104 U. S. 031 (1882) ; Moouey v. State, 33 Ala. 410 (1851») ; State v. Johnson, 40 Conn. 130 (1873) ; State v. Garvey, 11 Miun. 154 (1800) ; Loza v. State, 1 Tex (App.) 488 (1877) ; Koberts v. People, lit Mich. 401 (1870); People v. Hobinsou, 2 Park. 235 (1855); Nieiiols r. State, 8 Ohio St. 435 (1858) ; State v. Welcli, 21 Minn. 22 (1874) ; Bartholo- mew V. People, 104 HI. 005 (1882) ; State v. Kobinson, 20 W. Va. 713 (1882). Piitle V. State, 9 Humph. C03. pp. 407, 574, 570, 51)5, 021, 022, 645, 050, 059, 007, oOit, 090, 098, 704, 742, 754, 757, 758. Cited in Hopt r. People, 104 U. S. 031 (1882) ; Mooney v. State, 33 Ala. 419 (1959) ; State v. Cross, 27 Mo. 335 (1858) ; People v. Beleucia, 21 Cal. 544 XXIV TABLE AM) CONCORDANCE OF CASES. Pirtlo r. State — Continued. (18C;5) ; lV()i>le v. Hoffors, 18 N. Y. !) (1858) ; People v. Garbutt, 17 Mich. !• (18GS) ; Nortlcet r. Stati-, 4 Snei'd, 34 J (1857) ; Hi)l)iTts v. Pe()i)Io, I'J Midi. 401 (1870); Pooplo v. Kohiuson, 2 Parle. 2;55 (1855); Nichols v. State, 8 Ohio St. 4;55 (1858); Cartwriirht v. Stato, 8 Lea, ."77 (1871); Bo.swellV Case, 20 Gratt. SCO (1S71) ; Ilaih- r. State, 1 1 Huinpii. 1,^4 (1850) ; State r. Welch, 21 Minn. 22 (1S74); Tiiiwell r. State, 70 Ala. 38 (1881); State r. Ro))Iuson, 20 W. Va. (;47 (1^82). Polk ?'. State, l!" Ind. 170. pp. ;;73, 451, 402, 474, 520, 590, 877. Cited in Kini; r. State, !i Tex. (.\pp.) 554 (1880) ; State v. Felter, 32 Iowa, 4'.i (1871); IIopp.s ?'. People, ;U III. o85 (18i;;i); Straiider r. State, 11 W. Va. 745; State v. Crawford, 11 Kas. 32 (187;'.): Boswell's Case, 20 Gratt. S^n (1871); Ciinniniihani r. State, 5"! Miss. 2i;;t (iU Am. Hep. liOii) (187'.') : Mc- Douii-al V. State, 88 Ind. 24 (188.".). Pollard V. State, 53 Miss. 410. p. 471. Potts V. House, (! Ga. 324. p. 54".. Powell V. State, 37 Tex. 348. p. si;:. Prescott's Case. p. 7('.. Pugh V. State, 2 Tex. (App.) 5"i'.i. j). S54. i{. ■. Cv\ Vile 40 Ci i;. )•. Cul K. )• ' 'a\ it. r. I)a> 1{. i\ Dix i;. r. Dul 1!. V. Dw R. r. Allunt. pp. 31), 252. li. r. Barton, 3 Cox C. C.275. p. ±11. Cited in U. S. r. Holmes, 1 Cliff. '.i6 (1858). R. V. Bleasdale, 2 C. & K. 7r.5. p. ;'.7. R. r. Bowler. Coll. on Lun. 073. pp. 2r.i, 311, 553. Cited in Choice v. State, 31 Ga. 424 (1803) ; State i-. Jones, 50 X. H. .'.O'.t (1871). R. V. Briscey, 1 Ben. >)t II. L. Cas. p. 311 . R. v. Bimlett, 4 B. & Aid. 120. p. 52!l. R. ('. Burrow, 1 Lew. C. C. 75. pi). 508, Mo, 021), 071, 740, 74S. Cited in Kenny r. People, 31 N. Y. 330 (1805) ; People r. Rogers, 18 N. Y ;> (1858) ; People v. R()l)iiis(.n, 2 I'ark. 235 (1855) ; Bn^well's Case, 20 (ii ati 800 (1871): State r. Tatro, 50 Vt. 483 (1878): State r. Robinson, 20 \V. Va. 713 (1882). R. )-. Burton, 3 F. & F. 772. i)p. 310, 324. R. v. Carroll, i C. & P. 145. pp. 508, 021, 020, 031, 048, "24, 742, 758, 780. Cited in State r. Cross, 27 Mo. 335 (1858) ; Kenny v. People, 31 N. i . 330 (1805); People r. Rogers, 18 N. Y. '.» (1858); State?;. McCants, 1 Spear.s, 303 (1843); State t\ John, 8 Ircd. (L.) 330 (1S4S^: State r. Avery, 44 X. II. 302 (1802); IVople i'. Robinson, 2 Park. 235 (1855) ; Pirtle v. State, Humph. 003 (1840). JABLK AM) COXCOHDAXCE OF CASES. XX \ !. r. Cruis.., HV.& p. 54(;. pp. ,]8= ^^"^--^^ -J'-pio, l^ Mich. i. '•• Cullender, (J How. St. Tr. 700. j.. .U;,. !.'■ '•^vies,lJ^.&F..ii);3C.&K.;J28; C Cox C. C. ;J2(;. pp. 223, l.iy. :. '•. Davis, 14 Cox, oO.}. p. 874. :. r. Dixon, II Cox, 241. j). 74!i. :. '•. Duflln, K. & r. ;^(;4. p. 08!). . V. Dwerryhousc, 2 Cox C. C. 44(i. p. did. ■ '•• Dy.son, 7 C. & P. 305. pp. 888, III8. ''»',.':. 4 o»v,."""'-" ' •"'""" ^'■' ''' ^''''""' "■■'•■'■■"'"'■ '■■'■-'■'«.* /•. Francis, 4 Cox C, C. 07. j). 87!i. . '•. (iamlen, 1 K. & F. !iO. p. 767, ■ '■• (lOOflc, 7 Ad. & El. -.;;(;. pp. sso, 91, s. Cited in Freeman v. People, 4 Denio, ',) (1847). c. (loodier. p. 7(;7. '•■ (irindley, 1 Ru.ss. on Cr. 12. pp. ,;21. 029, C48, 049, C.;i, 724, 742, 757, 758 Cited in State .'.Cross, 27 Mo. 335 (1858); People r. IJo-^ers 18 N Y 9 ^n^,Ti:f'''T' ' ''''''''''' o843)/pirt,e..i;t;^;,'o 1;, 3 (1849) ; State .. Tatro, 50 Vt. 483 (1878) ; R. .. Carroll, 1 C. & P. 45 (I800) ; Swan V. State, 4 Humph. 13(i (1843) . R. 201, 220, ii ;•• Iladfleld, 27 How. St. Tr. 1282. pp. 37, GO, 07, 70, 84, 197, 198 ■I'S ;U4, 31C, 339, 3G2, 448, 474, 551, 552, .!72, 073, sill ' ""•V^O ri8?rs^' f°"i '',''• "• ''' ^''''^ ' ^''^^^•^'' - State, 03 Ala. 319 I O ' Vn n^'p r :"■' V"- ^''"'-^ ''' ^'"'^^-^ ^''--- State, 1I3 ori8r;^SM^^^^^^^^^^^ ^''■^')' "0PP« «• People, ..1 111.380 (18(,.{); State ?;. Spencer, 21 N.J. (L.) i-hj (184(1) • State t- PI-.. (18<9) ; R. V. Oxford, 9 C. & P. 525 (1840). '■• Haynes, 1 F. &. F. (JOG. pp. 48, 309. Citrd in People r. Waltz, 50 How. Pr. 204 (1874) : Walker v. People, 1 V V Crnn. Rep. 7 (1881). ' ' '•''■>■ *•. Iligiiinson, 1 C. & K. 129. pp. 08, 220, 480, 7!l0. (IKl.) 512(l8ol); State ^,. John, 8 Hed. (L.) 330 (1848); State v H-.r, lett, 43 N. H. 224 (1801) ; Ford .. State (Ala.), 10 Rep. 047 C^3) ''• Hodges, 8 C. & P. 195. p. 918. '■• Holt, 7 C. .M: P. 518. p. 089. 0. Israel, 2 Cox, 203. p. 9 Hi. XXVI TABLE AND CONCOUDANCE OF CASES. H. V. Jones, 1 Leach, 120. p. 1)18. H. V. Jones, 9 C. & P. 208. p. (189. U. V. Law, 2 F. & F. 83(;. p. 226. U. r. Layton, 4 Cox C. C. 140. p. 522. C'j>d t« U. S. V. Holmes, 1 Cliff. 08 (1858) ; State u. Grear, 21) Minn. 221 (1882). n. V. Leigh, 4 F. & F. 015. p. 749. H. 0. Marshall, 1 Lewiu C. C. 70. pp. 742, 7i;7. R. V. Mfiuro. p. 207. Citei iti R. v. lladfleld, 27 How. St. Tr. 2782. R. V. Meakin, 7 C. & P. 297. pp. 030, 031, 035, 001, 704, 725, 740, 742, 704, 788. Citf'd in People v. Rogers, 18 N. Y. 9 (1858); State v. McCants, 1 Spears, 303 (1843); State v. John, 8 Ired. (L.) 330 (1848); State v. Avery, 44 N. H. 302 (18■. ToAvnley, 3 F. & F. 839. pp. 224, 251, 314, 321, 324. '1f 3^7l87o' "■ ^^''"'' "^ ^'''^' ^'" "^* ^^^"^^' ^'^''^' "• ^''''"""' ^•' ^^^■ '■. Turton, Cox C. C. 385. p. 522. ■>:■ Vaiighan, 1 Cox C. C. 80. p. 221. Cited in U. S. v. Holmes, 1 Cliff. 98 (1858). »•• Vyse, 3F. & F. 247. p. 78;l. »•• Whitflold, 3 C. & K. 121. p. -Jia. '•■ Wright, R. & R. 450. pp. 20, 879. Cited in Dejaruette v. Com,, 75 Va. 807 (1881) XX VI 11 TABLE AND CONCOKDANCE OF CASES, RafEcrty v. Pcoi)le, GC 111. 118. pp. 7-'7, :,■■)«. liL'ul /'. i\'Oplo, i'J N. Y. 1'70. pp. Ill, 75.2. Cited ill State v. Sticklcy, 41 la. 232 (1.S75). UcnigcT V. Fogos.sa, Plowd. 1!). pp. 58(;, <;28, (UO. Cttedin Cornwcll v. State, Mart. & Vcg. 147 (1827). Rospuhllca ?>. Woitlle, 2 Dall. 88. p. 728. Reynolds v. U. S. 08 U. S. 145. p. 177. Richardson v. State, 7 Tex. (App.) 4«(;. p. 854. Ifoberts v. People, 10 Mich. 401. pp. (i08, 687, fi!)8, 700, 758. Cited in State ij. Johnson, 40 Coua. Uid (187:5) ; State <'. Welch, 21 Minn '>" (1874). Roberts v. State, 15 Ga. 310. pp. 193, 232, 474. Cited in Cunningham v. State, 5(; Miss. 2(;!) (;U Ain. Rep. SCO) (l,si;<(). Robinson v. State, 5 Te.\. (App.) 511). )>. 853. Rogers v. People, 3 Park. (i31. p. 727. Cited in Rafferty v. People, (JO 111. 118 (1872) ; State v. Robinson, 20 W. Va. 713 (1882). Rogers v. State, 33 Ind. 543. p. 782. Russell V. State, 53 Miss. 3f;7. pp. 527, 8GC, 86{>. Sanchci, v. People, 22 N. Y. 147. pp. 292, 857. Cited in MacFarland's Case, 8 Abb. Pr. (x. s.) 57 (1870). Sanchez v. People, 18 How. Pr. 72; 4 Park. 535. p. 857. Cited in Sanchez v. People, 22 N. Y. 147 (1800) . SuAvyer v. State, 35 Ind. 80. pp. 790, 857, 807. Cited in Guetig v. State, 03 Jnd. 278 (1878) . Sayres v. Com., 88 Pa. St. 2!)1. pp. 520, 531, 858. Cited in ^OY^v. State (Ala.), 10 Rep. 047 (1883). Schallcr v. State, 14 Mo. 502. pp. 727, 741. Cited in People v. Robinson, 2 Park. 235 (1855) . Schlenckerr. State, 9 Neb. 241. pp. 752, 754. Scott V Com., 4 Met. (Ky.) 227. pp. 37, 100, 136, 270. Cited in State v. Felter, 25 Iowa, 07 (1808). Scott V. State, 12 Tex. (App.) 31. pji. 686, 727. Seaver v. Phelps, 11 Pick. 304. p. 313. Sellick's Case, 1 City Hall Rec. 185. p. 807. Shailer v. Bumstead, 99 Mass. 112. p. 801. TABLE AND CONCORDANCE OF CASES. xxix rjs. Miannahan v. Com., 8 Bush (8 Am. Rep. 4(15) 404. pp. J.-,;, c.QS, 7 Cited in State v. Joliiisou, 4rt Conn, l.'ic (187;i). ^luilt/. V. State, 13 Tex. 401. ]). soi. SiiKlram v. People, 88 N. Y. 19(]. p. 802. S^itl. .. Com., 1 Duv. 224. pp. .7. 00, 100, 270, .83, 4.;2, 5,7, 5.;2, 6«9, .;75, 727. ^''nVn, 'm-' "■ ""T- ' ''"•'"■ "'' ^•«"'^^' S*'^*^ "• I'^^^'tor, 25 Iowa, 07 2/1873?.' Sh""'"'' :• "'-A' ''"■''' "' ^^'''"^ ' '^*«*« - Crawford 11 Kas. Paul ;8k c 'Tfn«;>;^^^^^^ ' ''"■^"' "'' ^' '•'■"• ^^''- 4<-); State .. Paulk, 18 S. C. 014 (1882); State v. Kobiuson, 20 W. Va. 713 (1882). Smithr. Tebbltt, L. K. l.P. ^D. ;5.,8. pp. 82, 84, ;]14. Suyder v. State, 39 Ind. 105. p. 877. Cited in McDougal 0. State, 88 Ind. 24 (1883). Spann v. State, 47 Ga. oS. pp. 309, 304. Cited in Uoswell v. State, 03 Ala. 321 (187!)). Spauu V. State, 47 Ga. 540. pp. 90s, om. State V. Arnold, 12 Iowa, 470. ]>. 917. State V. Avery, 44 N. II. 302. p. 703. State V. Baber, 74 Mo. 202. p. 518. St.ue V. Bartlett, 43 N. II. 224; il Am. L. Reg. (x. s.) o^ pp 87 -U '^-9 .,•> 1'-'. 174, 480, 527, 500, 877. ^ PP- »<, -14, o<2, 412, '''^^n>^i^^^;yV7'"'- ^^''"••^ ''' ^''''^■' «tate..Jones,50N..II. Va 745 U.f;- 'f "; '' ''''''' '' ^''''^-> «^--'«r V. State, 11 W 8^0 IP it:; """;-"■'• '' ''^" '- ^''''^ ' ^"--^"'« C-so, 20 Gratt. ' !n V C"'"""Sham .. State, 50 Miss. 209 (31 Am. Rep. 360) (1800) ■ McDouga! v. State, 88 Ind. 24 (1883). '.^<'»^- J . State V. Bell, 20 Iowa, 310. pp. 682, 098, 758. Cited in Stat, v. Maxwell, 42 Iowa, 208 (1875) ; State „. Welsh, 21 Minn. 2- State r. Bowen, 1 Iloust. Cr. Ca.s. 91. j). 7i>8. ■Statu V. Brandon, 8 .Tones (L.) 403. pp. OO, 100, lU, 300, 500 W ^•H State r. Felter, 25 Iowa, 07 (1808) ; Strauder .. State, U W Va /4o; Boswell's Case, 20 Gratt. 800 (1871). ^tat,. .. Brinye., 5 Ala. 241. pp. 231, 349, 300, 372, 407, 514, 500, 010 ''n«-n ''f "'f ^^ ^- ^'^''' 1^ ^^1'^- -^34 (1850) ; State .. Feltor, 32 Iowa, 40 -1 ; People v Garbutt, 17 Mich. 05 (,S08) ; Strauder .. State, 11 W ^ .». <4.;; Boswell's Case, 20 Gratt. 800 (1871). iJistimjuished in Boswell v. State, (^3 Ala. 32,3. Stat.' .-. Brown, 1 Iloust. Cr. Cas. 530. ;,p. l'iki. 231, 801 XXX TABLE AND CONCOUDANCE OF CASES. State P. Bruce, 48 Iowa, 530. |). 51 1;, Cited in State v. Grcar, '2'J Miuii. 22\. (1882). St'itc P. Bullock, i:! Ala. 41:?. p. 7;!0. Cited in Tldwull v. State, 70 Ala. ;;;i (1881). State V. Christmas, t; Jones (L.) 471. p. 820. State V. Coleman, '27 La. .Vnn. (I'.tl. p. 517, 758. State r. Crawford, 11 Kas. :!2. pp. 427, 459, 474, 527, 352, 877. Cited in Cmuiinsham v. State, 5(1 Miss. 2);'t (.'U Am. Rep. .^CO) (187!t) ; Ford r. State (Ala.), KrUep. (147 (188;?) ; McDougal i\ State, 88 Ind. 24 (1883) ; State V. Hedenieier, 71 Mo. 177 (187'J)- State V. Cross, 27 Mo. 332. pp. «1», 757. Cited in State ?>. Kdwards, 71 Mo. ,124, 325 (1871)) ; State r. Dearinsi, i!5 Mo. 533 (1877) ; State v. Hundley, 40 Mo. 4 (1870). State V. Cunuiniiham, 72 N. C. 4{I!i. p. 8(14. State V. Curtis, 70 Mo. 5".)4. p. 14. State V. Cashing, 2ll Mo. 215. p. 41G. State r. Danby, 1 Houst. Cr. Cas. 1(17. pp. 231, 331, 514. Cited in Ford v. State (.Via.), IG Rep. 047 (1883). State r. Dcarinc:, (15 Mo. 530. p. 757. Cited in State v. Edwards, 71 Mo. 324 (187!»). State V. De Ranee, 14 Rep. 208. p. 517. State r. Dillahunt, 3 Ilarr. (Del.) 551. pp. 220, 231, 748. State V. Donovan, 10 N. W. Rep. 20(1. p. 678. State r. Edwards, 71 Mo. 312. p. 757. State r. Erb, 9 Mo. (App.) 580. Reversed, State v. Erb, 74 Mo. 19!). State V. Erb, 74 Mo. I'.tO. pp. 10, 233, 518. Cited in State v. Baber, 74 Mo. 2i.t2 (1881) ; State r. Kotovsky, 74 Mo. 247 (1881). State r. Felter, 25 Iowa, (17. pp. 75, 92, lOil, 107, 113, 270, 371, 8G0, 8C4. Cited in State v. Jones, 50 N. II. 3(19 (1871) ; Boswell r. State, C3 Ala. 320 (1879) ; State r. Mewherter, 46 Iowa, 88 (1877) ; State r. Stickler, 41 Iowa, 222 (1875). State V. Felter, 32 Iowa, 49. pp. 370, 371, 510, 517, 800. Cited in State v. Bruce, 48 Iowa, 530 (1878); Ford v. State (.Via.), 10 Hep. 047 (1883). State V. Ferguson, 2 Hill, 019. p. 725. State V. Gardiner, Wright, 372. pp. 5, 267. (187!)); Ford il. 24 (1883); iriug, Cj Mo. 74 Mo. 247 804. 63 Ala. 32*; sy, 41 Iowa, ), IC Hep. TABLE AND CONCOUDAXf'K OF CASES XX \i state V. Garvey, 11 Minn. 154. pp. i-ji, ,iOs, ojis, 75},. 8 ' : s r " ,?; ' '' ''"'"• '' ^''"'^ ' '"''^*« - «^^''^'- ^'« Minn. 2-'l (188-') ; btate v. Robinson, 20 W. Va. 7V6 (1882). State V. Graviotte, 22 La. Auu. 587. p. 785. State V. Grear, 28 Minn. 42(i. pp. 727, jco. State V. Grear, 27 Minn. 221. pp. 518, 7i.'7. State?'. Gut, 13 Minn. 341. pp. 189, 270, 518, <;!KH. Cited iti State w. Welch, LM Minn '"' n.srn. «tot, r. n«8.»\ n I -uiiui. __ (,iN,j); State t?. Grear, 2'J Mi lui ""1 state r. Harlow, 21 Mo. 44(1. i)p. 727, 757. Cited iti State v. Edwards, 71 Mo. 324 (1871)). State V. Harris, 8 Jones (L.) I'M), p. (»18. State V. Hays, 22 La. Ann. 3:. Felter, 32 Iowa, 49 (1871); State V. Smith, 53 Mo. 207 (1873) . State V. Klinger, 40 Mo. 229. p. 14. Cited in State u. Erb, 47 Mo. 205 (1881). State V. Kotovsia. Ann. 590. p. 727. ' TAHLK AXI) CONC'OItDANCE OF CASES. XXXllI statu V. McCaiits, 1 Spears, 384. pp. ()21, Cofl, 722, 7l'7, 707. Cited in Kaffcrty v. People, fifi 111. 118 (1872) ; Peoplu v. RoRors, 18 N. Y. !' (1858); Statu y. Cross, 27 Mo. ;5:5l> (1858); Stato u. Robiusoii, 20 W. Va. 713 (1882). .Stiile ('. McCoy, 34 Mo. 531. pp. 408, 412, 415, 418, 42r,, 518. fjiteilin iState v. Rock-mcicr, 71 -Mo. 17t;, (IHTH) ; 8 Mo. (App.) 1 (1879) ; State V. Iloyt, 47 Conn. 518 (1880); State ??. Smith, 58 .Mo. 2(17 (1873) ; State V. Klinjier, 43 Mo. 127 (18t)8); State v. llumlley, 4(1 Mo. 414 (1870). State r. McGonigal, 3 Ilarr. 510. p. 752. State ('. Nash, 7 la. 347. i>. 373. State V. Ostrander, 18 la. 435. p. 373. State ('. Patten, 10 La. .Vnii. 2'.i',i. j). {)01. State V. Paulk, 18 S. C. 314. p. 727. State V. Payne, 8(i N. C. tiO;>. p. 518. Cited in Ford v. State (Ala.), Hi Rep. G47 (1883). State V. Pike, 4!) N. II. 3!t!». pp. 85, 8(J, 91, 127, 311, 527. Cited in State v. Jones, 50 N. II. 309 (1871); Bradley v. State, 31 lud. 492 (18G;i). State V. Poison, 29 la. 133. p. 112. State V. Pratt, 1 Iloust. Cr. Cas. 249. p. 327. State V. Preseott. p. 490. State V. Reddiek, 7 Kas. 144. pp. 527, S^j'tj. Statu V. Redemeier, 71 ^lo. 173. pp. 13, 14, 233, 424, 518, 809. died in State v. Kotovsky, 74 Mo. 248 (1881); State w. Erb, 74 Mo. 203, 204 (1881); State v. Sims, 71 Mo. 538 (1880); Ford ?;. State (Ala.), IG Rep. 047 (1883). State V. Redemeier, 8 Mo. (App.) 1. p. 424. Slate V. Richards, 39 Conn. 591. pp. 1, 270, 783. Slate V. Robinson, 20 W. Va. 745. pp. 872, 873. siaie V. Samuel, 3 Jones (L.) 74. p. 793. state V. Schingen, 20 Wis. 74. pp. 098, 759. Cited in State v. Welch, 21 .Minn. 22 (1874). Statr r. Scott, 1 Hawks, 24. p. 858. cited in State v. Vaun, 82 N. C. 031 (1880). State r. Sewell, 3 Jones (L.) 245. pp. 816, 8G3. State V. Shippey, 10 Minn. l'23. pi). 190, 233. Citedin State i\ Gut, 13 :Miini. 343 (1808). ^late w. Sinnns, 08 Mo. 305. pp. 420, 7S2. Citedin State v. Redemeier, 71 Mo. 170 (1879). XXXIV TAMLE AND CONCOUDANCK OF CASKS. Stttto V. Smith, 40 Conn. 37f!. p. 874. .State r. Smith, o.'l Mo. L'f,:. pp. .'Klit, 418, 42(i. Citrd in Sliili' r. Kfdcmclcr, 71 Mo. 17(> (1870); HoswoU v. Stuti', M AI;i. JiL'd (187'.i); Stiitf V. (Jmir, 2!t .Minn. 221 (1882). Slate ('. Spencer, 21 N. J. (L.) I'.m;, pp. 5, 70, 2:54, 251, 835, ;'.:2, ;578, 4ii7, 4(18, 48i5, 48'.i, 4'J2, 41t8, 514, r)llt, 6!l!l, 858, SCI . Citrd in State i>. Jones, 50 N. II. .'5(1!) (1871); State r. Feltor, 32 Iowa, 4!» (1871) ; I'eople v, GiU'butt, 17 Mich. It (1880;, , Gmhani v. Coin., HI B. Mon. 587 (1855); People v. McCanu, KJ N. V. 02 (1857); Straudor v. State, 1 1 VV. V'a. 745; State r. Hartlett, 43 N. 11.224 (1801); IJoswell'.s Case, 2i) Oratt. 800 (1871); People v. Waltz, 50 How. I'r. 202 (1874); People r. McCann, 3 Park. 272 (1857); Ford i'. State (Via.), 10 Hep. 047 (1883). Stater. St, Louis Pnbllc School.^, 30 Mo. lOo. |t. 4lo. .State r. Stark, 1 Strolth. 47il. i)p. 407, 48'J, 581, 850. Cited in IJeasley r. State, 50 Ala. 153 (18''3); People v. Garbutt, 17 Mich, i) (1808); Strander v. State, 11 W. V'a. 745; State v. Bartlott, 43 N. II. 224 (ISOl); Boswell's Case, 20 Gratt. 800 (1871); Ford r. State, (.Via.) 10 Hep. 047 (1883). State r. Starlinj^, Jones (L.) 300. pp. 370, 372, 518, 51l'J. Cited in Boswell r. State, 03 Ala. 32i! (187'.i); State v. Hoyt, 47 Conn. 518 (1880); State v. Pelter, 32 Iowa, A'J (1871): State v. Strauder, 11 \V. \'a. 745; Boswell's Ca.se, 20 Gratt. 800 (1871). State i\ Stickley, 41 Iowa, 2.12. pp. 108, 270. State V. Strander, 11 W. Va. 745. p. 521. Citedin l-'ord v. State (Ala.), 10 Rep. 047 (181)3). State ('. Summons, 9 West. L. J. 408. p. 258. State V. Tatro, 50 Vt. 48:5. p. «G0. state r. Thomas, 1 Iloiist. Cr. Cas. 511. State V. Thompson, 12 Nev. 140. !>. 743. State V. Thompson, Wright, 022. p. 730. state V. Till, 1 lloust. Cr. Cas. 223. |i. 74&. State V. Toohey, 2 Kice Uig. 105. p. 725. State r. Turner, Wriglit, 20. p. 730. ."^late V. Trivas, 32 La. Ann. 1080. p. 758. State V. Vann, 82 N. C. o:'.l. pp. 858, 861. State 1'. Vann, 84 N. C. 722. p. !ill>. State V. Welch, 21 Miuii. 22. pp. 697, 75;i. State c. West, 1 Iloust. Cr. Cas. 371. pp. 231, 514, 800. State V. Willis, 03 N. C. 20. pp. 000, 802, 803. Cited in Boswell's Case, 20 Gratt. 800 (1871). TABLE AND CONCOKUANCE OF CEASES . XXXV State r. Windsor, 5 Iliirr. (Del.) 512. pp. 'M, 2^1, :?*J4. Stovc'US r. State, 31 Ind. 485. pp. TC, 87, 127, 324, 373, 4f.2, r.2(;. Cited in State t). Joiie.s, 50 N. II. 3i;!» (l*<7!t); Statu r. Keltcr, 32 Iowa, 4',» (1H71): IJradlcy r. State, 31 Iiid. 41)2 (ISC'.)); State r. Crawford, 11 Kas. 32 (187;!). Stewart r. Mspeiiard, 2(1 Wend. 255. |>. .".H. Stiid.stlll r. State, 7 CJa. 202. p. 232. Stuart V. State, 1 Baxt. IHO. pp. 2i;'.t, 8«(». Sullivan r. People, 31 Mkii. I. p. SCI. Sutton V. Sadler, 3 C. B. (x. s.) 87; 1 Kng. (.". L. 87. pp. 48(1, 52li. Sutton V. State, 41 Tex. 513. i>. 854. Swan V. State, 4 Ilunipli. 13(;. pp. 574, 570, 5!»5, 043, C4!), (151, (155, (157, (ijii, (i(U», 085, 0110, 0;»8, 704, 730, 741, 742, 754, 758. Cited in Mooney v. State, 33 Ala. 4i;t (185!t); Golden r. State, 25 (iii. 27 (1808); State v. Bullock, 13 Ala. 413 (1848); I'eople v. Koyers, 18 N. V. !t (1858) ; State v. Bell, 2t) Iowa, 310 (1870) ; Lo/.a v. State, 1 Tex. (App.) 488 (1877); Roberts u. People, 1!) Mich. 401 (1870); People t>. Kobinson, 2 Park. 235 (1855); Nichols u. State, 8 Ohio St. 435 (1858) ; Plrtle v. State, 9 Humph. 063 (184!)); Cartwright v. State, 8 Lea, 377 (1871); Boswell's Case, 20 Gratt. SCO (1871); Hallo u. State, 11 Humph. 154 (1850); Lan- caster V. State, 2 Lea, 578 (187!i) ; State v. Welch, 21 Minu. 22 (1874) ; Bartholomew v. People, 104 111. 005 (1882). Taffe V. State, 23 Ark. 34. p. !)18. Thomas v. State, 40 Tex. 00. pp. 20!i, 807. Tidwell V. State, 70 Ala. 33. p. 731. Tyra v. Com., 2 Met. (Ky.), 1. p. 727. Underwood v. People, 32 Mich. 1. p. iHrt. U. S. V. Bowen, 4 Cranch, C. C. 004. p. 758. U. S. V. Clarke, 2 Cranch, C. C. I5S. pp. 741, 7.'>1. Cited in People v. Robinson, 2 Park. 2;;5 (l«j.j). U. S. V. Claypool, 14 Fed. Rep. 127. pp. 728, 745. U. S. Drew, 5 Mason, 28. pp. 420, 407, 555, 580, 5'.i(;, 5'.i7, 5;i8, 001, 030, 000, 727, 7-H. Cited inHopt v. People, 104 U. S. 631 (1882); People f. Rogers, 18 N. V. 9 (1858); Choice v. State, 31 Ga. 424(1800); People v. Garbutt, 17 Mich. It (1808) ; Fisher v. State, 04 Ind. 435 (1878) ; State v. Mullen, 14 La. Ann. 570 (1859) ; People v. Robinson, 2 Park. 235 (1855) ; Boswell's Case, 20 Gratt. SCO (1871); State v. Hundley, 40 Mo. 414 (1870); State i'. Robinson, 20 W. Va. 713 (1882). U. S V. Forbes, Crabbe, 558. pp. 728, 745. XXXVl TAI»LK ANU CONCOKDANCK OF CA8K8. U. S. »'. (iiilk'iiu, I MiicUiy. p. 858. IT. S. «. (iiiltomi, 10 Fi'd. Hep, 1(!1. pp. 1«S, I'.lU, H58, KoH, 8(:4. IT. S. V. IIew.soii, 7 Law Rep. ;ti;i . p. 7^;'. U. S. V. Ilolmus, 1 Cliff, W. pp. l.'7i), ;!'.)I, ;iiM, 85!l, HtiJ. Cited in Statt- r, Luwrt'iiuc, 57 .Mf. 574 (1870). r. S. V. LanciisttT, 7 JM.ss. 140. p. H1>7. I'. S. V. Lawrence, 4 Craiu-h, C. C. r)lH, i)p. ;iL'4, 874. r. S. w. McGliU', 1 Curt. 1 . pp. I'l, 54, 2ol, 270, 420, 47(j, 489, 580, Bill, 5'JIJ, CiJO, (KJC, 727, 741, 741, 852. Cited in Ilopt r. IVoplo, 104 U. S.OiU (1882); State v. Hoyt, 47 Conn. f,18 (1880); IVoplc r. Uof^ers, 18 N V. U (1^58); Tlionms v. State, 40 Te.\. 00 (1874); Stato v. Thomp.son, 12 Nev. 140 (1877); IVoplo v. Robinson, 2 Parlx. 2155 (1855) ; State r. Bartlctt, i?, N. II. 224 (1801) ; Carter v. State, 12 Tex. 500 (1854) ; Roswell's Case, 20 Gratt. 8(i0 (1871) ; People v. Waltz, 50 IIow. Pr. 202 (1874); State v. Ilundiey, 40 Mo. 414 (1870;) Dejarnotte w. Com. 75 Va. 807 (1881); Cnnninjihani v. State, 5(J Miss. 2G9 (lU Am. Rep. 300), (18711) ; State v. Robinson, 20 W. Va. 713 (1882). U. S. 0. Perez, Wlieat. 57l». p. 015. U. S. V. Rondenbnsli, Bald. 514. pp. 081, 085, O'.IO, 0!i2, 701, 758, 765. Cited in IMooney v. State, 33 Ala. 41!i; State v. Bell, 21) Iowa, 31(; (1870); Loza V. State, 1 Tex. (App.) 488 (1877); Rol)erts r. I'eople, I'.l :\rieii. 401 (1870) ; Wood V. State, 34 Arl<. 341 ; 30 Am. Rep. 13 (187'J) ; Bartholomew 0. People, 104 111. 005 (1882). II. S. V. Shultz, :\IcLean, 121 . p. 813. Vanaulven, in re, 2 Stoeiv. 180. p. '.15. Vance V. Com., 2 Va, Case., 132. p. 800. Vincent v. State, '.» Tex. (App.) 203. p. 854. Wagner v. People, 4 Abb. Apn Dec 50'.t. p. 530. Walker y. People, 20 Hun, 07, ' N. G. Cr. Rep. p. 40. Walker v. People, 1 N. Y. Cr. Rep. 7. pp. 4% 234. Walker v. State, 7 Tex. (App.) 202. p. 830. Walker v. State, 42 Tex. 300. p. 843. Walker v. Walker, 14 Ga. 242. pp. 542, 543. Walter v. People, 32 N. Y. 147. pp. 44, 470, 513. Cited in State v. Hoyt, 47 Conn. 518 (1880) ; People v. Garbutt, 17 Midi. , h?'.'. CitPd in Williams r. .State, 7 Tt-x. (App.) KIS (187!>); .lohiisoii r. State, 10 Ti'X. (App.) .•):,■. "H (IMHl); W<.l)li W. State, !l Tl'X. (Ap|).) 4'.iO (1»(<0); Wari-fu r. state, :• IVx. (App.) ii:);! (188ni. \\\l)l) r. State, !t Tex. (App.) 4'.in. pp. o.VJ, 83.'>, 84<;, H5H, 8i!8, 875. CV/^-t/ f»i .lolm.son r. State, 10 Tex. (App.) .-.77, 578 (1881) ; KIiik v. State, !• Tex. (App.) 557 (1880); Fonl c. Slate (Al;i.), IC Kep. (i»7 (I88a) ; Kiii^' '•. Stale, i;} Tex. (App.) L'8;! (188-*). Wehh V. Ware, :)-J Mlcli. 77. ii. 141. Weiizr. Slate, 1 Tex. (Ap|).) :)n. pp. (182, 70H, 758. Cited in Loza r. Slate, 1 Tex. (App.) 488 (1877); \\\hh\ r. state, ;;4 Ark. :U1, :;"i Am. Kep. l;i (187!i). We.stmorelaiid r. State, 45 (la. L'L'5. pii. I'.'iL', 51(1. Whaley v. Slate, H Tex. (App.) 805. !>. 854. Williams V. State, 7 Tex. (App.) Hi;;, p. 20{>. Williams' Ca.se, '_' (Jralt. 5(17. p. 015. Willis V. People, 5 Park. di'l. p. 243. AxfJrmed in Willis r. People, ;12 N. V. 713 (I8f!5). Willis V. People, V.'J N. V. 715. pp. :57, ;'.8, W, 243, L'tC, 251, 27*1, 531. Cited in Flana-^au v. People, 52 N. Y. 4(i7 (11 Am. Kep. 7;!I) ; Cole's Case, 7 Abl). Pr. (.\. s.) »2l (l8tiS;; Wagner v. People, 4 Al)l>. App. Dee. 50'.': People V. Waltz, 50 How. Pr. 204 (1874); People v. Montgomery, 1.". Abl>. Pr. (\. 8.) 207 (1870); People v. O'Connell, <;2 How. Pr. 4;;o (1881); Walker v. People, 1 N. Y. Crlm. Hep. 7 (1881). WomaeU r. Circle, 2'.i Gratt. Iii2. p. 21. Wilson's Case. p. 741. Withan v. Lewis, 1 Wils. 53. p. ;U!i. Wood V. State, 34 Ark. 341 ; 3G Am. Kep. 13. pii. 680, 75!t. Wright V. People, 4 Neb. 407. pp. 17, 2.34, 477, 527. Cited in Ilawe v. State, 11 Neb. 537; 38 Am. Hep. 375 (1881) ; Hart >•. State, 14 Neb. 375 (1883); Ford r. State (.Via.), l(j Hep. (14 (1883). Wriiiht V. Tathani, 1 Ad. & t:. 3; 34 E. C. L. 178. i)ii. 248, 540. Wyinun v. Gould, 47 Me. 15'.i. p. 111. Young V. Martin, 8 Wall. 354. p. fiOd. Young i\ Stevens, 48 N. H. 133. p. 313. Zembrod v. State, 25 Tex. ol'J. p. 875. Tost o: Test oj 1 ( I'articv ] Test of Test ()1 ( Test of I T.St of T.St of 1< Samo Ci Test of fc N'o Lcgii No Test Insane P< Uncontr of Moral Ii io TABLE OF CONTPJNTS. (H AFTER J. Thk Lkoal Tkst ok Insanity. Tost of Insanity- Dementia - Responsibility. State v. Bichards, .i!) Conn'.'""' 591 1 Test of Insanity -.Vet must be Result of Insanity to })e Exensablc-Bar. barity of .let no Pres.nnptiou of Insanity. Bomrd v. State, 30 Miss. 4 Particular Riglit and Wrong Test -Burden of Proof - Opinions of Non- Experts. State V. Erb, 74 Mo. 109 j,^ Trst of Jnsanity-IIypocliondria. State v. Hawe, 11 Neb. 537; 38 Am. Rep. •575 ... k; T.St of Insanity- Irrelevant Questions -Burden of Proof. Dejarnette v Co7n., 75 Va. 8(i7 Test of Insanity -Insanity at Trial -Practice -Form of Oatli- Experts People V. Kleim, Edni. Sel. Cas. 13 ' ^(. T.St of Insanity -Ability to Distinguish as to Right or Wrong of Act Flan- a; 9 Am. Rep. 242 . (U No Test -Burden of Proof. Stevens v. State, inind. -iSo .... 87 Insane Impulse -Prior Insanity - Insanity <•! Father - Evidence of Ex- perts, ^-'nte V. Fetter, 25 la. jnch V. Com., 11 Pa. St. 14(i no Insane Delusion — Responsibility — Test of Insanity — Burden of Proof — Opinions of Medical Men. McNaohten's Case, \0 C\. ik V. 'im . . l.JO Insane Delusion — Tost of Insanity — Burden of Proof — Opinions of E.\- perts. Com. V. i?o[/(?/'s, 7 Mete. SOU; 1 B. & II L. Cas. . • .15^ In.saue Delusion — Distinsuished from Erroneous Opinion — Burden of Proof — Test of Insanity — Evidi'uee. U. S. v. Guitean, 10 Fed. Rep. li;i Ui;i Insane Delusion — Instructions — Intoxication — Committed Intentionally does not Chauirc (Jrade of Crime — Burden of Proof. State v. Gat, 13 Minn. 343 I8'.i Test — Insane Delusion. liobert!< \. State, W Ct-x.'^XO l!i:'- NOTES. Section 1. Acts of an Insane Person not Punisliable 200 2. The Cliild Test 200 3. Tlie Wild Beast Test 200 4. Iladfleld's Ca.se — Er.skine's Argument I'nl 5. Test of Knowledge of Right and Wrong in the .Vbstract . . 'Hi (!. Test of Knowledge of Riglit and Wrong as applied to the Pai- ticular Case 2 lit 7. Tlic English Tests in tile American Courts 2;il 8. Riglit and Wrong Test— Alabama 231 It. California 2:!1 10. Delaware 231 1 1 . Georgia 232 12. Kansas — JIaine 2;;2 13. Massachusetts 232 14-15. — —Michigan — Minnesota — Mississippi 233 IG. ^ — -Missouri 233 17. Nebraska— Now Jersey 234 18. New York 234 I'.i. North Carolina 257 TABLE Ol' COXTEXTS. Xli 20. Ohio ^' • ■ Pennsylvania ... 2-^ Tcnncssoc — Te.\;i.'< 2.".. Unit(!(l States Conrta 24. Moral Insanity — Irrcsistiblo Iinpul.sc 25. Doctrine of Moral Insanity Disapproved 2G. The New Hampshire Rule — No Test 27 State v. Piku — Elaborate Opinion of I),,,., .r 28. lusaue Delusions . I'.Vfii:. . 2,J7 . L'."»'.i . 2i;!) . 2(i:» . 27n . no^ . ;ui . ;;i 1 . 324 CHAPTKH ir. The Burden of Proof of Insanity. IJurdou of Proof on Prisoner - Test of Insanity. Stat. v. Pratt, 1 llonst Or. Cas. 249; State v. Daaby, Id. ICT ... ""■''tiorTn '" ^'"r-'-T-^t-Continnanee of Insanity 1 Declara- tions of Deceased. State v. Sprncer, 21 N. J. (L.) vm; Uurden of Proof- Reasonable Doubt of Guilt. State v. Marlr-r, 2 Via 43 • 30 Am. Dec. 31)8 .... ' Insanity Mu.st be Proved Be.vond Reasonable Doubt - Insanitv After Ver- dicUuKl Before Sentence - ( .pinionsof Witnes.ses. Stat'e v. Brin.ea, Burden of Proof - Right to Ope., and Close. State v. FrUer, 32 la. 49 Bunlen of Proof- Jury Must be Satisfied of In.sanity. Graham y. Com., 1<) B. Mon. 373 ... Burden of Proof _ Presumption of Sanity _ Moral Insanity - Drunkenness. And V. Com., 5 Bush, 3(;3 .... Burden of Proof on Prisoner. State v. Laxorence, 57 Me 574 Burdenof Proof-Opinion ofWitnessos-Insanity Presumed toContinne- Test of Insanity - Insanity of Relatives. Baldxoin v. State, 12 Mo. Oo7) 34t; 34:i 371 371) 3 Si; Burden of Proof. State v. McCoy, 34 Mo. 531 """"mo^. f:^^-^"''*"^"'*'^'- ^'g'^t 'i"^' Wrong Test. State v. Klinoer, 43 Burden of Proof -Instructions -Court Must not Instruct as to Wei^^ht of Evidence - Reasonable Doubt on Whole Evidence. State v. Smith, 53 Burden of Proof _ Intoxication - Instructions as to Weight and Suinclency ofEvulcnce. Statev.IIundleii,^^Uo.n^. . . . 4i\S 410 413 417 xiii TABLK OF CONTENTS. PAGE. Bunkii of Trool' — Particular Right and Wrong Tost — Now Trial — Ciinui- lativo Evitlc'iice. State \. Rede.mci('.r,~\. 'Slo. \1^ .... 424 Burflcn of Proof — Test — Plea of Not Guilty — Right to Open and Close. Zof/nerv. ,SY««e, 10 OhioSt. 598 432 Burden of Proof — Quautum of Proof Required. Ortwein v. Com., 70 Pa. St. 414 438 Burden of Proof — "Moral Insanity" — Kvidence — Attempt at Suicide. Coyle V. Com 44 1 Burden of Proof — Reasonable Doubt — Test of Insanity — Evidence of Good Character — Evidence of Another Crime. Hopps v. People, 31 111. 385 444 Burden of Proof — Frenzy Arising from Anger or Jealousy — Opinion of Experts. Guetig v. State, (iC Ind. 1)4; 32 Am. Rep. 'J9 . . . . 455 Burden of Proof . State v. Craicford, II Kas. o2 459 Burden of Proof — Drunkenness — Hereditary Insanity — Insanity in Rela- tives — Evidence. People \. Garbutt, 17 Mich. 4G3 Burden of Proof — Test of Insanity — Moral Insanity. Cunningham v. State, 5(J Miss. 2(iU; 31 Am. Rep. 3G1 470 Flurden of Proof — Test of Insanity. Wright v. People, ^'iHah. \01 . .477 Burden of Proof on Prosecution. State v. Bartlett, 43 N. II. 224 . . .480 Burden of Proof on Prosecution. People v. McCann, IG N. Y. 58 . . 490 Burden of Proof on Prosecution. O^ Connelly. People, 87 N. Y. 377 . . 499 Burden of Proof — Tost of Insanity — Experts — Hypothetical Case — Charge of Court — Plea of Insanity. Doue v. (S'fafc, 3 Ileisk. 348 . . .602 NOTES. Skctiox 29. Presumption of Sanity 29a. Burden on Prisoner — First Theory . 29&. Burden on Prisoner — Second Theory 30. Alabama 31. Arkansas 32. California . 33. Connecticut ;14. Georgia 35. Iowa 36. Kentucky 37. Louisiana 88. Maine . 39. Massachusetts 40. Minnesota 41. Missouri 42. North Carolina 43. Ohio . 44. Pennsylvania 513 513 514 514 514 514 51G 51G 51G 517 517 517 517 518 518 618 618 620 TAHLE OF C Av^^. 335 . 533 Drunkenness -Voluntary Drunkenness no Excuse -Particular Ri-ht and VVrong Test - Oinoraania- Moral Insanity - Evidence - Starements of Prisoner -Reputation -Order of Proof - Experts - Opinions Choice V. State, 31 Ga. 424 Voluntary Drunkenness does not Mitigate Crime. Shannahan v. C(y,n , 8 Bush, 413; 8 Am. Rep. 4G5 .... ktt Voluntary Intoxication no Defence. Kenny v. People, 31 N. Y. 330 . . 5C2 Intoxication no Defence — Madness Produced Thereby. Bennett v State Mart. & Yere. 133 , . ' ' ^>, 5/1 Drunkenness — No Aggravation of Crime — Degree of Murder. Haile v State, li Humph. 154 , . ' .-„ . oio Drunkenness- Intoxication and Mental Unsoundness. Beasleu v State 50 Ala. 149 ... ,.., 5<7 Intoxication of Infuut. Com. v French, Thatch. Cr. Cas., 1<;3 . . 531 Drunkenness -Insanity Resulting Therefrom. Cornwell y . State, Mart & ''^'-- ''' ■ . 583 Intoxication — In.sanity Resulting Therefrom— Test of Insanity — Partial Insanity. Carter v. State, 12 Tex. 500 . . ' -00 Intoxication — Insanity Produced Thereby — Burden of Proof — Premedita- tion and Deliberation. BosweWs Case, 20 Gratt. 8(J0 . . . 592 Drunkenness - Insanity Resulting Therefrom. U. S. v. Drexo, 6 Mason, 28 601 T XllV TABLE OF CONTENTS. I'AGE. lutoxicatiou — Murder in First Degree — Doliberat'ou — Test of Insanity — ICvitiencc. ,Slale v. Johnson, 40 Conn. lUo (JOi! Degrees of Murder — Intoxieation — Malice — Implied Malice. State \. Johnson, 41 Couu. 585 (;01i Drunkenness — Degrees of Murder — Provocation. Johnson v. Slate, 29 Ga. 5;i4 Oil' Drunkenniss Does not Mitigate Crime — Irrelevant on Question of Degree. .state V. Cross, 27 Mo. 322 61!' Intoxication — Relevant on Question of Premeditation, etc. — Insanity Re- sulting frouj Druukonness. People v. Ro'jers, 18 N. Y. !» . . . G25 Intoxication — Degrees of Murder. Jones v. Com., 75 Pa. St. 403 . . (j38 Drunkenness — Degrees of Murder. Swan v. State, 4 Humph. 13G . . G43 Druukcuross — Degrees of Murder — Premeditation — Deliberation — Man- .f.er. Pii'tlex. State, 'd llamph. {}ii'o 045 Drur — Degrees of Murder — Deliberation — Premeditation. Cart- loright v. State, 8 Lea. 377 653 Drui.keniiivis — ,) .-ocs of ^lurder — Need not be " Excessive " to bean Exc(u^^.. Luncos'er v. State, 2 Lea, 575 ...... 058 Intoxication — When Not Relevant to Degree of Crime. State v. Tatro, 50 Vt. 483 600 Intoxication — Degrees of :Murder. Jloptx. People, 104 U. S. 031 . . 004 Intoxication — Not Relevant on Question of Malice. Xicholsw State, 8 Ohio St. 435 (107 Intoxication — When an Excuse — Bui'deu of Proof — Rational Doubt — Moral Insanity — Test. *S'/;iWi v. Com., 1 Duv. 224 069 Drunkenness may Reduce Grade of Crime. Blimm v. Com., 7 Bush, 320 . 075 Intent — Drunkenness Relevant on Prosecution for .Vssault with Intent to Commit Rai)e — Erroneous Instructions. State v. Donovan, 10 N. W. .Rep. 20(; 078 Larceny — Intent — Drunkenness. Wood v. State, 34 Ark. 341 ; 30 Am. Rep. 13 • 080 Drunkenness — .Vdmissible on Question of Intent. State v. Bell, 29 la. 310 082 Drunkenness — Relevant on Question Whether Crime was Committed. Scott v. State, 12 Tex. (App.) 31 . . . ■ . . . .680 Intoxication — Intent — Insanity. i2o&er0 .Somuamlmlis>n - llo.nicide - Responsibility for Unconscious Act". Fain v. ' '"^ om., I vy. I80 ^^^ xlvi TABLE OK CONTENTS. NOTES. SixTiON. 70. Monomania — Kk|>tomaniii — Stealinn Shoos — To sanity ...... 71. Soninauibulism 72. Use of 0|.iiiiii To. Erotomania 74. Person of Low Mi'iital f'ap.iiity . 75. Otlier Cases St of III AtiK. 77;i 782 782 782 782 78o CHAPTER V. Evidence and Practice. Insanity mnst he Clearly Shown — Evidence of Excitement. State\. Gmviotte, 22 La. Ann. 587 785 Adultery of Wife — When Evidence Admissible — Drunkenness — Insane Delusion — Declarations. State \. John, S Ivtsd. {L.) SoO . . .787 Evidence — Adultery of Wife of Prisoner — Insanity Should not be Inferred — Caution to Jury. ASaioyer \. JStutc, iio Ind. 80 T'.tO Evidence — .Acts and Declarations of Prisoner — Insanity must Exist at time of Act. iState v. Hays, 22 La. Ann. SH 797 Evidence of Subsequent Acts and Conduct. Com. v. Pomeroy, 117 Mass. 143 7W) Evidence — Temper of Prisoner — Fits of Passion — Eccentricities — Con- duct of Trial — Remarks of Judge. Sindram v. People, 88 N. Y. 11)6 802 Right of Jury to Consider Prisoner's Appearance on the Trial. Bowden v. People, 12 Hun, 85 807 Evidence — Irrelevant on Question of Responsibility — Declarations of De- ceased — Drunkenness — I)elil)eration. Warren v. Com., 37 Pa. St. 45 SO'J Evidence of Acts Showing Sanity. U. S. v. Shults 813 Delirium Tremens — Temporary Insanity — No Presumption of Continu- ance — Test. State \. tSeioell, S Joima {L.) 2i5 8K1 Hereditary Insanity — Evidence must be Notorious. State v. Christmas, G Jones (L.) 471 820 Evidence — Murder by Poison — Present Insanity — Jury Trial not of Right. Laros v. Com., 84 Pa. St. 200 824 Evidence — Mental Condition of Relatives. Hagan v. /Sfafc, 5 Baxt. 015 . 833 Special Charge — Burden of Proof — Experts — New Trial. Wehh v. State, 9 Tex. (App.) 491 835 Charge Must be Specially Directed to Defence Made — Delirium Tremens — Test. Jffrtom v. *S'to(e, lOTex. (App.) 700 845 rAGK. . 785 isanc . 787 ed — . 7!)0 time . 797 TABLE OF CONTEXTS. xlvii NOTES. )f 111- f Skction 7(1 . 77:t i 77 . 78-J 78 . 782 71t . 782 . 782 80 . 78a 81. 84. 85. Barbarity of Crime does not Raise Presumption of Insanity wulence of Wife's Adultery Relevant, Whon Declarations uot lies Gestce luaUmisslblo Confidential Conversation between Husband and Wife -Tes imony as to Insanity not Within the Rule Evidence of Acts and Conduct at Other Tinier ' ' Insanity Cannot be Proved by Reputation ' ' ' ' 82. Previous and Subsequent Insanity ' ' " ' 82 «. Continuance of Insanity -Presumption 83. Evidence of Insanity in Relatives . ' ' " Character ... " ' ' • Specific Acts of Insanity need not Ije Shown ' ' ' ' 80. Proof of other Crimes ... ' ' " ' 87. Testimony on Former Trial ' ' ' 88. Pleading — Trial ...''■'■• 8!). iiight to Open and Close SO. Judge need not Specially Define the Variou"s Types of Ins'mitv' hIt !»1 . Duty to Instruct on Insanity Ple-v m^aiuty. 8m, 02. Jury may be Cautioned as to Insanity Plea " " ' * It'- 93. Insanity -Finding of Jury Conclusive ' ' " " '"• ""ZnlT' -'"''''' ^^^'^^^^"^^■'' I^vidence- Cumulative Evii '"' H.^a, Of Application for Continuance - Evidence not Cumu: ''' "• ''Sn;:s:if "'^-^:-^""^^"-'>^p---ountsof ^--ity 98. Habeas Corpus — Ball ' • ■ • • . 872 99. Appeal . . . ' ' ' ' • • • 874 100. Opinions on Insanity — Experts '■■■■■ ST8 . 85t; . 857 858 858 85!i sen 8t;o 8(;i 8(U 805 8(i5 8G5 8(U; sac, 8(]r, !t5. m. 871 . 820 t. . 824 . 833 . 835 . 845 CHAPTER VI. Insanity at Trial ou after Conviction 897 xlviii TAllLE OF CONTENTS. PAOE. Insanity at Trial — Proouiluro — Riuht of Trisonor to Wulvo Question. A'tute V. I'attcn, 10 La. Ann. 2!i'J DOI In.sanlty After Conviction — Where Jnclgo i.s Satisfied of Sanity Jury Un- uecessury. Bonds v. imitate, Mart. & Very. 14;]; 17 Am. Dec. 7it5 . !(04 In.sanlty after Conviction — Kvklence — Certiorari. Spnnn v. State, 47 Ga 54!) .... not; Insanity at Time of Trial — Issue - Evidence — I'lea of Not Guilty. People V. Farrell, 31 Cal. 570 f,09 Insanity at Trial — Effect of Disclmrsiny Jury — "Once in Jeopardy." Grnljer \. State, 3 W.Vii. t\W c,j.> NOTES. Skltion 101. Insane Person Cannot be Tried 102. Deaf and Dumb Person . ion. In.sanity After Verdict or Judgmoni 104. Contlnement of Insane Criminals . 91(5 . 'JIS . 1)1!) . 1)19 THE ADJUDGED CASES ON INSANITY AS A DEFENCE TO CRIME ^VLTIL NOTES. CHAPTER I. THE LEGAL TEST OF INSANITY. TEST OF INSANITY- DEMENTIA -RESPONSIBILITY. State v. Richards. [39 Conn. 591.] rn the Superior Court of WinUkam County, Connecticut, August Term 1873. ' Before Hon. Origen Storks Seymour. Dementia. -Test of Reaponslbmty for Crim« An . , pica Of not juy, bo/o^ trrr^t/r,::?.'"^? r ot the case, .^TZLl. - ' ''' "'"'' """"'^""y »'»'^' t"" '""» JTDGE SETOOUR'S CHARGE tamed mainly to the question whether r«;, , "''""°'' ■"" ^"•^ - '-t eh.,e. a'na thi. ^Z^^^ZZ^l^Z: O) TMK LKdAL TKST or INS A MTV Stiito V. lliclianl.H. whether the iiecused hiis sullicieiit nuMilal capacity to warrant ua in imputing to him ii feh)nious intent. TJKit ho is eonHiderably below par in intellect is apparent to us all. This is indicated by his coiintonance and general a|>pcnrance. The same thing is indicated by his extraordinary conduct at the lire, r tianics were bursting out he was fleen on all fours crawling back from under the burning barn, with no clothing ui><)n him except his shirt and trowsers. The day was excessively cold. He remained some half hour thus scantily clothed, gazing stolidly at the blaze, until oidered into the house. All this U^k place in broatl daylight, in plain view of Mr. Gallup's house. But it is undoubtedly true, as the attorney tor the State contends, that mere inferiority of intellect is no answer to the prosecution. We are, therefore, called upon in this case to decide an interesting and ditllcult question, to-wit, whether the accusetl has sullicient mind to be held responsible as a criminal. He is not a mere idiot, nor does he appear to be a lunatic. He suffers from want of mind rather than from derangement or delusi' and the question is whether the want of mind is such as to en him to ac(iuittal on the ground of what in law is termed dementia. This in(iuiry is attended with inherent dilliculties. Our knowledge of our own minds is imperfect; our knowledge of the precise mental condition of another is necesf^arih' still more imperfect. We, as triers, are obliged to rely upon the evidence furnished us by witnesses whose means of knowledge are limited and who find great difficulty in com- municating to us, on a subject of this nature, what they do know. Our principal embarrassment arises, however, from the want of a defi- nite measure of mental capacity. Eminent judges and learned com- mentators have attempted to furnish rules and tests for the guidance of triers of cases of this kind ; but upon examination these rules and tests turn out to be imperfect and unsatisfactory. It was formerly thought that the jury might properly convict if the accused had any sense of right and wrong, or if he was aware that punishment would follow the commission of an offence. But children of very tender years have some sense of right and wrong, and fully understand that punishment will follow transgression. Such children are subjected by their parents to discipline, and are by gentle punish- ments restrained from wrong-doing ; but our sense of humanity would be greatly shocked at the thought of subjecting children to the penalties of statute law because some sense of right and wrong and fear of pun- ishment had been developed in them. So, again, it is often said in the 1)0' IJKSI'ONMIUI.ITY OF CIIILDUKN. 8 Lord ILilo's'IVst. bonks tlint ft iMT-^nn is ti) l»o dfoincd rospoiisihle fnr crime if he imdr-r- stamls tlic coiiscfiuoiiccs ami cflVcts of tlie sict laid to liis cluirLto. 'I'iiis JH umloulttedly and oUvioiisly true if he lias siicji tinderstaiiilinpf :uid ;i[)preciation of eonaequi'nces as pertain to otlmr men. But if In- li.is leas of it tlian is ooinmon to nu'U in genorid, how luueli less must it hv to escape ri'sponsiliiiitj'? I think the accused liacl some kiiowlodn;e of the consequcnr-cs of hin ads. He pr(jl»al)ly knew tl»!i^ by ij^iiilinfj ji niatfli nnd tluctwin^ it into a hay mow a lire would b<; kin Ued, and tluit tlie barn wpuld thereby be consumed. lie, perhaps, also liad some appreciation of tlie loss and di'struction of property whicii would ensue. But I am ntjt willing to say tliat some knowledge of o<^)nsoquence<», liowever faint and imperfect, is sullicicnt to warrant you in convieiing the prisoner. I can give you no precise i*ule ; but I think it clear tliat if the prisoner's perception of consequences and effects was only sucli as is common to cliildren of tender years in- ought to be acquitted. And this leads me to refer to the rule adopted by an eminent Knglish judge, Lord Ilaie. He reasoned that, inasmuch as chiMrcn under fourteen years of age are }')n'ma facie incapable of crime, imbeciles ought not to be held responsil)le criminally unless of capacity equal to that of ordinary children of that age. If this test be adopted the prisoner will, upon the testimony, be entitled to an acquittal. The principal witnesses for the prosecution say that he is inferior in intellect to children of ten yoais of age, and several very intelligent witnesses for the defence testify that they are acquainted with many children of six years who are his superiors in mental capacity. I am inclined to recommend Lord Hale's rule to j'our adoption, not, however, without qualifications which I think it important to observe. And first, this test, like all others which I know of, is imperfect. Probably no two of us have the same idea of the capacity of children of fourteen years of age, and then there is this further difficulty, that there can be no accurate comparison in detail between the healthy and piopctly balanced, though immature, mind of a child, and the unhealthy, abnormal and shrivelled intellect of an imbecile. The com- parison therefore is only of the general result in their respective appre- ciation of right and wrong and of consequences and effects. This further consideration ought also to be borne in mind, that though in modern times persons under fourteen are seldom subjected to the penalties of the criminal code, yet in law children between seven and fourteen may be subjects of punishment if they are shown to be of sullicient capacity to commit crimes. In applying Lord Hale's rule, therefore, the child to be taken as a standard, ought not to be one who THE LEGAL TEST OF INSANITY. Bovard v. State. has had superior advantages of education, but should rather be one in humble life, with only ordinary training. And after all, gentlemen, you see that I can furnish you with no definite measure of mental capacity to apply to the prisoner. The whole matter must be submitted to your sound judgment. You will say whether the prisoner has such knowl- edge of right and wrong, and such appreciation of the consequence and effects of lii3 acts, as to be a proper subject of punishment. Opinions on this subject have been expressed by most of the witnesses who have testified. These opinions depend for their value mainly upon the facts with which they are connected. You have the advantage of being able to compare with each other all the facts which have been bnniglit to your notice bearing upon the prisoner's mental condition. You will look carefully at all these facts. The history of the prisoner's life is somewhat significant. From early childhood it has been spent in alms- houses, subjected to constant constraint. In the most ordinaiy acts of his life he has been governed by the superior will of others to whose care he has been committed. He has, it appears, been seldom left to the free guidance of his own judgment. "When so let t, he seems to have acted without forecast, under the pressure of immediate wants and impulses. If you acquit the prisoner on the ground of want of mental capacity you will so say in your verdict, in order that the prisoner may in that event have the benefit under our statute of a home where he will be kindly cared for, but kept under such restraints as to prevent his doing injury to the persons or property of others. [The jury acquitted the prisoner, stating in their verdict that the acquittal was on the ground of want of mental capacity.] TEST OF INSANITY. — ACT MUST BE RESULT UF INSANITY TO BE EXCUSABLE — BARBARITY OF ACT NO PRESUMPTION OF IN- SANITY. Bovard v. State. [30 Miss. 600.] In the High Court of Errors and Appeals of Mississippi, April Term, 1856. Hon. COTESWORTH P. SMITH, Chief Justice. " Ephraim S. Fishkr, ) " Alexander H. Handy, ) Associate Justices. 1. The Law Presumen Every Man to h^ Sane, until the contrary is proven. 2. Particular Rifrht and Wrong Test. —If the Jury believe, from the evidence tiiiit tlie accused killed the deceased with mulice, iind not in necesBiiry self-defence, BOVAIiD V. STATK Statement of Case doing Term, he is Ruilty of irmnler, notwitlistanrUnp they may believe he wns, at the time of com- mitling ihe deeil, laboring under partial insanity, unle.-is he was, from siicli insaiiiiy incapable of unlerstan'lint; tlie nature and conseipience of his act, and of kuowiug that it was wronj:, and that he would be punished for it. 3. Same. —Insanity, however produced, constitutes no excuse for crime, unless it be so great as to deprive tlie parly of his jiower to UTiderstan Ray, Med. Juris. 417. 10 THE LEGAL TEST OF INSANITY. State V. Hrb. Tliere are several facts and circumstances connected with this trans- action, as thoy appear from tlie evidence, whieli raijrht well have author- ized the jury to doubt whetlier tlie accused was at all affected with any form of mental malady. Hut conceding that there was no attempt at simulated mania on the part of the accused, and that he in fact did labor under some disease of the mind, which amounted to partial, but very temporary, insanity, according to tlie rule of law which must govern in the case, he is clearly to be held responsible for his act. There was no proof that the accused had not capacity and reason sufficient to distinguish between right and wrong in relation to the act which he committed ; or that he had not a knowledge and consciousness that it was wrong and criminal, and that punishment would be inflicted upon him in conseciuence of its commission ; on the contrary, he was perfectly rational, exce])t in reference to a single class of subjects, about which he seemed to entertain very wild, ridiculous and absurd notions. But there was no proof before the jury, which, either directly or by inference, showed that the fancy or delusion under which he labored had any connection as the antecedent or cauee with the com- mission of the offence. It is not sufficient, to absolve from the penal- ties of the law, that the party charged was partially insane, and that such insanity v.as attended with delusion. In all such cases it is essential that it be clearly shown, in order to excuse, that the act was committed under the direct or necessary influence of such delusion. Judgment affirmed. particular right and wrong test — burden of proof — opinions of non-experts. State v. Erb. [74 Mo. 199.] In the Supreme Court of Missouri, October Term, 1881. lion. Thomas A. Sherwood, Chief Justice. " Wakwick IIor(in, 1 " Em.iaii II. Nourox, [ " John W. IIi-aky, i '* RoiiKUT D. Ray, j Judges. 1. Particular Right and Wrong: Test. — To entitle a person charged with homicide to an acquittal on the ground of insanity, it must appear that hie mental faculties were, at the time the act was committed, so pervertetl and deranged as to render him inca- pable of distinguishing between right and wrong, with respect to that particular act. STATE V. ERB. 11 Facts of the case Reviewed. licide to es were, lim inca- lar act. 2. Burden of Proof. — Sucli evidence must appear to the reasonable satisfaction of the jury. 3. Evidence of Non-Expert. — A witnecs not an expert may give his opinion of u person's insanity, if accompanied with the facts on wiiich it is based. Appeal from St. Louis Court of Appeals. D. H. Mclntyre, attorncy-ojeneral, for the State ; Allen & Coste, for respondent. Norton, J. — The defendant. William Henry Erb, was indicted in the St. Louis Criminal Court, on the 2d of July, 1879, for murder in the first degree, for the homicide of his divorced wife, Rose Mion, alias Aglae Rosalie Erb, on tlie nineteenth day of Jinic, 187!). He was arraigned at the same term, and i)leadcd guilty, which the court refused to accept, and ordered the plea of " not guilty " to be entered. After several continuances, the cause came on for trial at the I^Larch term, 1880, and defendant was convicted of murder in the first degree, as charged in the indictment. After an unsuccessful motion for a new trial, he made an application for an appeal to the St. Louis Court of Appeals, which was granted. That court reversed the judgment of the Criminal Court ; whereupon the circuit attorney for the State appealed the case to this court. The principal ol)jections made b}' defendant's counsel in their motion for a new tiial, are to the action of the court giving certain instruc- tioiis on its own motion, and refusing others asKcd by defendant; in admitting improper and illegal testimony for the State, and excluding competent and legal testimony for the defendant ; and the action of the court, in refusing to instruct the jury to disregard certain alleged improper statements made by the circuit attorney in his address to the jury. The facts disclosed by the evidence on the part of the State to estab- lisli the corpus delidi are that the defendant, having heard that the deceased, who had been divorced from him for some years, was about to marry again, went to his home, procured a knife and proceeded to to the house of deceased, whore she was engaged in washing, and asked hor "if that was true." to which deceased made no response, where- upon defendant stabbed her twice in the back, the knife penetrating the left ventricle of the heart, and inflicting a wound of which she immedi- ately died ; that defendant, after committing the homicide, threw the knife, with which he inflicted the wound, into the vault of a water-closet, and walked away up Spruce Street, and upon being arrested said he did not cut any woman ; that about three hours after his arrest, upon being asked why he killed his wife, he answered: " Who said I killed her?" 12 THE LEOAL TEST OF INSANITY State V. ErI). and upon being told "your liltlc d:iuc[litcr said so," replied that: '•SIh> ciiu't s:iy so; I li:ive not seen my wife for over ji year ; 1 never had such :i knife." On the niorniiiij; after tlie hoinieide, defendant said there was no use in denying the killing; that his wife had not treated him well ; had once put him in the work-house ; that he had l)een told, the afternoon of tlie homicide, that she was going to marry somebody, an 12 Mo. 223. = 21 Mo. 404. ' 71 Mo. 175. 14 THE LEGAL TEST OF INSANITY. State V. Erb. is intcrposeil us a defence, whether such insanity be denominated alco- holism in its chronic form, or in its acute form of dclirimn tremens, or dypsomania, affective or emotional, ideational, or whether it be desig- nated by any other of the various technical terms denoting peculiar forms of insanit}', the question, according to the uniform course of decisions in this State, is, whether such insanity rendered the person laboring under it incapable of distinguishing between right and wrong, in respect to the act he was about to commit. The fourth and fifth of defendant's instructions were properly refused, as they asked the court to tell the jury that if they had a reasonaltle doubt as to the insanity of the accused, the}' would acquit. Instruc- tions containing the above principle have been repeatedly condemned by this court. State v. Redemeier, and cases there cited. The eighth instruction is as follows: " The court instructs the jury that if they believe at the time of the killing charged in the indictment, the mental and moral faculties of the defendant were so perverted from their normal condition, by the habitual use of alcoholic liquors, as to prevent him from understanding the nature and consequences of the act he was about to conunit, and such perverted and diseased condition of his mental and moral faculties, was inconsistent with deliberation and premeditation as charged in the indictment, so that he could not have acted with deliberation and premeditation, the jury must find the defendant guilty of murder in the second degree, and assess the punish- ishment at a term in tlie penitentiary for n(jt less than ten years. But such diseased condition of the mental and moral faculties must be the result of an habitual use of liquor, and not merely the disturbance inci- dent to a fit of intoxication." The facts in this case, if defendant was not insane, show it to be murder in tlie first degree, and nothing else, and the instruction might well have been refused on that ground ; but it was fatally defective on another ground in this, tliat it authorized the jury to find defendant guilty of murder in the second degree without finding thui. the act was done with premeditation. ' The ninth instruction refused, asked the court to instruct the jury to disregard the evidence of Sergt. Frank Watkins. This witness was called in rebuttal, and was asked tlie question, " What was defendant's appearance and conduct as to sanity or insanity?" This question was objected to on the ground that Watkins was not an expert, and could not, therefore, give an opinion. This objection was properly overruled under the authority of State v. Klinger,^ where it was held that, " wit- ne!' the i\n\ tht coil clol I State V. Curtis, TO Mo. 691. * 46 Mo. 329. OPINIONS OF NON-EXI'£RT8. 1ft AddreMS of Prosecuting Attorney. itcd alco- Jinoiis, or be dcsig- peculiur course of le person strong, in ' refused, ;asona,l»Ic Instruc- ndenined the jury lictment, ted from rs, as to f the act Jition of ition and lot havu find the punish- . But be the lee inci- ant was else, but it zed the without jury to ss waa idant's on was could irruled "wit- »g nesses who are not experts maybe permitted to stiite whctlior they deem the prisoner to be insane, but it can only be done in connection with their statements of the particular conduct and expressions which form the basis of the judgment." It is also urged, as a n-asdu for reversing the judgment of the trial court, that after the argument of tiie ciise before the jury had been dosed, the court was asked to instruct the jury to disregard the follow- ing language used by the prosecuting attorney in his closing speech. The circuit attorney, in his closing argument, said : " Where a man is really insane, from whatever cause, he shall be protected ])y the State, whose rf'presentative I am. For instance, take the case of Ileuman, which startled the community the other day, and wiiich, doubtless, you have all read al)out. He had fits and delirium tremens, and while so suffering, lie killed his little infant, whom he loved, and his wife by his bedside, in Ills insane delusion tliat his little infant and his wife meant to kill iiim. Now, that is alcoholism, or insanity resulting from it, which the law recognizes wherever it exists. There is nothing of this kind in Erb, the casel»efore you. lie had no delusion or insanity of any kind, and none that any person swears to. * * * That there was no murder in the second degree in the case; that the testimony proved murder in the first degree, and this was not denied, as insanity was the di'fence ; that if this was so, the jury ought not to convict of murder in the second degree, as this would be virtually pardoning the accused, and the par- doning power belonged to the Governor and not to juries ; that they sliould do their dut}', and if they thought there were any mitigating cir- cumstances, they could write to tlif Governor." "We cannot say that tluse utterances were not fully warranted by the facts disclosed in the evidence. It is true that the court had given an instruction for murder in the second degree, doubtless under the belief that sect. 1234 of Revised Statutes directed trial courts, in every case of indictment for murder in the first degree, to give an instruction not onl}' as to murder in the first degree, but also to murder in the second degree. This was a misconception of the statute, this court having held in the case of State V. Hopper,'^ that said section is not to be understood as requiring the trial court to instruct the jury as to murder in the second degree, whore there is no evidence upon which to predicate it. The remark of the prosecuting attorney, " that there was no murder in the second degree ; that the testimony proved murder in the first de- gree, and that this was not denied, as insanity was the defence," could 1 71 Mo. 425. 10 Tin: MXiAIi lllM' Ol' INSANITY Hawo r. Stnti'. hiivo been understood 1>v llicjiirv in iikoHum' Hcnso, tlwiu if (iii'V tlid not lu'lii'vc tliat tlio difcmliint wms insano at llu' time iio connnittt'd tlio net, Uk'V were lioniid inidcr tlie eviiU'iu'e jind tho law (o lind iiini guilty of niiinU'r in tlu; li'sl dcLrri'C. Tlic principle tini.s unnouncrd in tlii' romaiks of tlio prosocnting attorney, was directly sanctioned by tliis court in tlie ct'se of BaUhrln v. State, ^ There was no niistako of law ()!• fact, and tl e case does not ct)nic within tho principle announced in the case of /''/a/e v. Lcc.'- Nor do v,e think the appeal made to the jury to do their duty would warrant au interference with tlie judgment. It amounted to nothing more t'.ian an assertion of what evrry jiwor in the box, if intelligi-nl enough to sit on a jury, knew to lie a fact, viz. : that tiieir function was not to bestow merey, but to do justice between the State and tlie accused. Perceiviiiir no error, the judgment of tlic St. Louis Court of Appeals is reversed, and that of the ("rimiiial Court is alllrmed, in which all the judges concur. Judge IIot;(iii concurring in the result. tkst of insamtv — iiyi'oc'ondria. Hawk v. State. [11 Nfb. 5;;7; 08 Am. Rep. 375.] In the Supreme Court of Xebniftka, Januanj Term, 1S81. lion. vSamtki. Maxwell, Chief Justice. " (ir.oiaiK B. Lakk, ) ^ , " Amasa Conn, ) "^ Occasional oddity or hypocoiulria does not amount to insanity <■■ "='■ he comnii^f^ion of a criminal oScucc. Xothiug short of the inability to d' n^M fromw'ng cau do so. Conviction of malicious shooting. The opinion iiites the case. Phelps & Thomas, for plaintiff in error; C. J. Diltvo: h. attorney- general, for State. Maxwkll, C. J. — The plaintiff was convicted at the November, 1880, terra of the District Court of Colfax County, of maliciously shooting one August Hirn, and was sentenced to imprisonment in the Supra, » 66 Mo. 167. JIVI'CK.'ONDIUA. 17 Dolliiltloii of "IiiNuiic"- Ttst. |lunn^!•lon pe. torney- |eraber, iiously in the |u'uitrntiury for flvo years. II« now proscK-iitca a writ of i)ini()ii as l)oing sounil in i)rinc'iple. Tlserc is, therefore, no error in the instrnction, and the judgment of the court below must be alliriued. Jadgment affirmed. TEST OF LVSANITY—IRRKLEVANTQUKSTIOXS — BURDEN OF PROOF. Dejaknette V. Commonwealth. [75 Va.SC:.] In the Court of Appeals of Virginia, January Term, 18S1. Hon. R. V. L. MoNCi'RK, President. ♦♦ JOSKI'II CUKISTIAN, ] " Francis T. Andkuson, I " Waltkk R. Staim.ks, j *' EinVAUD C. 'JUKKS, J Jiul'ies. 1. Test of Insanity — Instructions. — The prisoner w.as imlicted for murder, tlie defence being insanity. Tlie judge cliarged llie jury as followi?: " In every case, ultliougli the accused may be laboring under partial insanity, if he still understands tlie nature and cliaractcr of liis act and it3 consequences, and has a kno\vleossil»Ie for an appellate court to lay down any rule on this subject, or to sa}', as an abstract proposition, what (jucstions may, or may not, '" -jstence of insanity in the ancestors of the accused, and it is almost d-iiain that the same question will be propounded on a future trial. We come now to the seventeenth bill of exceptions, from which it appears that, after the conclusion of the argument, the court, of its own motion, proceeded to instruct the jury upon the principles of law by which insanity is to be tested. To this action of the court, in so instructing the jury of its own motion, as well as to the doctrines therein laid down, the accused ex- cepted. In the first place, althougii it is not the practice in Virginia for the court, unasked, to charge the jury upon the law of the case, yet the mere fact that it does so cannot, of itself, be assigned as error. Wb- mack v. Circle.^ The accused has certainly no just cause of complaint if the law is properly expounded. There are cases, indeed, in which it would be not only proper, !)ut the duty of the court, even though unnsked, to instruct the jury upon the principles of law by which they should be governed in rendering their verdicts. We think, however, that the practice in Virginia is a wise one in general, for it is extremely difficult to deliver charges to the jury without conveying to them some intimation of the opinion of the judges upon the e\iden; i , or using some phrase or expression which may constitute a ground of just exception. In the case before us, the charge of the learned judge sets forth, at threat length, and with much minuteness of detail, the principles of law by which the jury were to be guided, and the tests to be applied in cases of insanity. It is but just to say that the charge evinces much elaboration and research, creditable alike to the industiy and the learn- ing of the learned judge. No just exception can be taken certainly to the following exposition of the law : — '* But in every case, although the accused may be laboring under partial insanity, if he still understands the nature and character of his < See also 1 Philips on Evidence, 654; Upx. V. Searle, 1 M. & Rob. 76; United Statei V. McGluo, 1 Curt. 1. ' 29 Gratt. 192. 22 THE LEGAL TEST OF II JANITY. Dejarnette v. Commonwealth. act and its consequences, and has a knowledge that it is wrong and criminal, and a mental power sulliciont to apply that knoAvlcdgc to his own case, and to know that if he does the act he will do wrong, and receive piinislnnent, and possesses, withal, a will sufficient to restrain the impulse tliat may arise from a di>eased mind, such partial insanity is not sullicient to exempt him from responsibility to the law for his crimes." We think the rule here laid down is in accordance with tiie best authorities, as well as the dictates of reason and justice. The learned judge also tells the jur}': " Tlie character of the mental disease prin- cipally relied u[)(in to excuse tlie prisoner is that he did the killing under an irresistible impulse, which was tlie result of a diseased mind." He then proceeds to define " an irresistible impulse," as a moral or homicidal insanity, consisting of an irresistible inclination to kill or commit some otlier offence, some unseen pressure on the mind, drawing it to consequences which it sees, but cannot avoid, and placing it under a coer('ii>n which, while its results are clearly perceived, it is incapable of resisting. The learned judge then declares it was for the jury to «ay whether the prisoner was forced to do the killing by such a eon- trolling disease against his will, or whether he did it voluntaril}', with intention to destroy the life of the deceased. Certainly, no sound ex- ception could be taken to this definition of homicidal mania, or irresisti- ble impulse, as it is sometimes termed; a diseased state of the mind, the tendency of which is to break out in a sudden paroxysm of violence, venting itself in liomicide and violent acts upon friend and foe indis- criminately. The real objection to the instructions is, tlint the jury are told thai this species of insanity is the principal defence of the prisoner. In- deed, this idea of homicidal mania pervades the whole charge, and the jury might justly have inferred the only question they need to consider was, whether or not the accused was laboring under this species of in- sanity at the time of the commission of the offence. We must, of course, accept it as true that the defence of homicidal mania was relied upon in the court below. The record does not, however, show the fact. Neither in the testimony of the witness, nor in the instructions asked for by prisoner's counsel, is there any special reference to this species of partial derangement. The effort of the defence seems to have been rather to establish the existence of latent hereditary insanity in the accused, developed into active exertion by the shock he had received ; but what form of mental aberration, whether homicidal mania merely, DKLIBKKATIOX AND PREMEDITATION. 23 Instructions. Id that In- md the onsider of in- uist, of relied le fact. asked species ve been in the ceived ; naerely, or tempoi'ai'v derangenn'nt, or general hallucination or delusion, were relied upon, tliis record does not inform us. The courc might very properly ha\e said to the jury, if such was the 'act, that irresistible impulse was relied upon as a defence, and stated the principles of law applicable to the case. In so doing, however, the instructions should have been so framed as not to create the inii)ression upon the mind of the jury that this form of insanity was the sole object of their inquiry. With rcspeet to the three instructions given by the court as a substi- tute for those asked for In' the prisoner's counsel, we think they cor- rectly st.ate the law. Tiie third instruction, especially, is as favorable to the accused as is consistent with the established rules of criminal law. The instructions asked for on the part of the defence were prop- erly refused. The first of the series affirms that in order to convict the prisoner of minder in the first degree, the jury must believe the killing was wilful, malicious, deliberate, and preme(litateased on doubt of uired to It is in 7ommo)i- 1th, hav- by the sanity, e whole ct, they ea, that oubt of s easily that it lination |hem, or states, th's at- court, b, if not Rights of Counsel. stopped by the court, lie would argue to the jiuy, that if, ui)on the whole testimony, the jury had a reasonable d(iubt of the prisoner's sanity at the time of the killing, the prisoner was entitled to an atMiuit- tal; and the court stated to the counsel, that he oould proceed until he came to that point in his argument, and then the court would say whether it was proper or not. And when the counsel came to that point he attempted to argue to tlie jury the above proposition of law, and the court interrupted him, and staled that such was not a correct conclusion of law, and could not be argued to the jury as law. It will be perceived that the counsel i)roposed to argue before the jury a proposition of law, the very reverse of that laid down by this court, in the cases already adverted to. His attempt was, however, accompanied with the declaration that he would maintain the proi)Osition unless stopped by the court. This could only be construed as an invitation to the judge to exi)ress his ai)proval or disapproval of the line of argument to be pursued. Had the latter, under such circumstances, remained silent, the counsel might justly have inferred, and the jury might have been warranted in supposing, that tlie argument was made under the sanction of the court. Counsel hav- ing thus appealed directly to the court, could nf)t be permitted to argue hrfore the jury in opposition to an opinion which he himself had called for. Whatever may be the right of counsel in criminal cases to main- tain, by argument, any proposition of law, untramelled by the court, where no instructions have already been given, as to which we express no opinion in this case, there is less ground for complaint because, as already intimated, the law had been finall}' settled by two solemn decisions of this court, and was no longer open for discussion. * If de- cisions so made may be reviewed and reversed at the mere caprice and pleasure of juries, it is vain to say that we have any established rules and principles of criminal law. This disposes of all the questions arising upon the record, except the motion to set aside the verdict because it was not sustained by the evi- dence. In view of the fact, however, that a new trial is to be had on tlie grounds already mentioned, it is unnecessary, and, indeed, would be im- proper for this court to pass upon that question. In considering the various errors assigned in the petition for an appeal, we have carefully refrained from any expression, or even intima- tion, of an opinion with respect to the character and nature of the ' Whart. onCrim. Law, sect. 327; Garth's Case, 3 Leigh, 761. 20 TIIK LKGAL TKiST OF INSANITY. People V. Kleim. (lofciK'i' made for the accused. That is a matter for the jury exchisively. Our duty is pcrfonued in seeing to it, so far as within us lies, that the prisoner obtains a fair trial by an impartial jury, according to the estab- lished principles and rules of the criminal law, recogni/.ed by the courts, and enforced by the Constitution and laws of the country. The judg- ment of this court is, that the verdict of the jury be set aside, and u new trial awarded the accused, in conformity with the views hereiu expressed. TEST OF INSANITY — INSANITY AT THIAL — PRACTICE- OATH — EXPERTS. People v. Kleim. •FORM OF [Kdni. 8t'l. ('as. i;5.] In the Xeio York Couri of Oijer and Terminer, March, 1S45. Bcforo Hon. .Jou.n W. Edmonds, Circuit Judge. 1. Test of Insanity — Ability to Distinguish Between Rijrht and Wronjr of Act. — 'riu.' to.-t (iT iii^anily us ii defonce to criinc is wheUier or not lliu iirl.'-oner wns laboring under such a defect of reason from disease of the mind as not to know tlie nature and en six- is here ; he had land E. |he pris- of his present insanity, • and moved that incpiiry should be made into that fact, in such niannrr as the court might direct. It was insisted liy tlicm that the (luestic^n of present insanity might be raised by the coiut iiixm in- spection of the prisoner, as in tiie cases of tlio Commnntcna'h v. Jlath- aivay,- and Commomccalth v. Brnlcy,'^ or by the counsel for the prisoner ; and tliat the question might Ite determined by the coiu't with the aid of a medical commission, as Avas done in France in the case of Ilenriette (Drnier, and other cases, or iini)anel a jury for the purpose. That the latter was the common law practice as laid down in 1 Hale's P. C.,^ wliich was followed in the case of Ilathawa}^ cited above, and api)i'oved in Barbour's Cr. Law,'* and that tlie statute, being in allirmance of the connnon law, and designating no method of procedure, tlie common law mode must be that intended to be i)ursued. The District Attorney^ contra, contended that the proper course would be that the prisoner's plea should be recorded, and a jury impanelled to inquire into the question of present insanity, and try the issue on the indictment at the same time. Tlie CincriT JcDCii:: The statute on this subject merely .says that an insane person shall not be tried, but is entirely silent as to the m:iniier in which the insanity is to be ascertained. Thai is, therefore, neces- sarily left to the discretion of tlie court in which the Suggestion of in- sanity shall be made. In some instances this has been inquired into by the same jury who tried the main question of guilt or innocence, and at the same time. Rut this was objectionable, because it mingled together questions which ought to be kept distinct, and he had witnessed a recent case of the kind in the Second Circuit, in which the learned judge of that circuit had exiiressed his regret that the suggestion of present insanity had been made at so late a stage of the trial as to compel this course. The inquiry might, doubtless, also be made by the aid of a quasi- comniission, in the nature of one de Innatico inquiren'Jo, and thus, as had been suggested by the prisoner's counsel, the aid of experts might be invoked by the court. But the court held it proper to adhere to the common-law mode of trial, and, therefore, directed a jury to be impanelled to try the issue of present insanity. April, 1845. Tlie prisoner was again brought into court, and the jury sworn " diligently to inquire, and a true verdict return, on behalf of the Peo- ' 2 R. S. 698, sect. 2. ' 11! Mass. 299. 2 1 /(/. 103. < pp. 34, 35. ' p. 300. 28 THE LEGAL TEST OF LNSANITV. People V. Kleiiu. pic of the State of Nrw York, whether Andrew Kleim, the prisoner lU the bur, who now stands indicted for nuinh'r, be of sound mind and understanding, or not, and u true verdict give according to the best of their understanding." Benedict, for tlie prisoner, claimed to hold the aflirmative. PkuCiiuam: Tliat is riglit. You are to malie out afllrniativcly that the prisoner is now insane. Sevi'r:il witnesses were then examined in relation to the condition of his mind. The Prisoner^ H Cnmisel contended that a state of mind which would warrant a conunission de lunatico out of chancery, would be sullicient to justify a verdict for the prisoner on the present issue. The Dintrii't Attorney insisted that such a verdict would be warranted only by a state of insanity which would excmi)t him from legal lespon- sibility. The CiiJcriT Judge charged the jury that there were two degrees of mental disease known to, or recognized by, our laws. One described as "idiots, lunatics, persons of unsound mind," and the oilier as " insane persons," either of which would warrant the Court of Chancery to in- terfere, by appointing a committee to take care of the estate of the per- son so afllicted, because his mind was so diseased or infirm as to render him incapable of managing his own affairs. And, as the question in this case seemed to be whether the prisoner was now in such a condition of sanity as to permit him to prei)are for and manage his defence on the charge in the indictment, it might be supposed that it would be enough for him, on this inquiry, to establish the lesser degree of unsoundness, namely : that which went so far only as to render him incapable of man- aging his affairs. But the statute had established a different rule, and had, in reference to this inquiry, required the higher degiee of unsound- ness of mind, that which the law allowed to exempt from legal responsi- bility. The provision of the statute ' was that no act done by a person in a state of insanity can be punished as an offence ; and no insane person can be tried or sentenced to any punishment, or be punished for any crime or offence, while he continues in that state. In order, there- fore, for the iwvy to be warranted in finding the aflirmative of the issue now presented, they must be satisfied that the prisoner's mind was now in such a state of unsoundness or disease as to exempt him from re- sponsibility ; and not merely that he was so infirm as to render him incapable of managing his own affairs. The jury found that the prisoner was not now insane. b 1 2 R. S. 697, sect. 2. DErLAKATIOXS OF DKCKASED. 2f> Facts of the Case. )risoner ul mind niul Llie best of lively that ndition of jich would ! sullicient warranted ;al respon- logrees of scribed as s '* insane ,'ery to in- )f the per- I to render estion in condition ICC on the )e enough )undness, of man- ule, and unsound- responsi- a person io insane ished for ir, there- the issue was now from ra- ider him May 21, 1«45. The prisoner was now arruignetl on the main issue, and by his coun- sel i)lead('d nnt (jnilty. The indictment charged the prisoner with the wilful murder of Cath- erine Ilanlin, at the city of New York, on the 2;kl of December, 18M, by setting fire to the dwelling in which she resided, and forcibly detiiin- iiig her therein ; also, inflictiiiix on her wounds by a shar|) instrument; by means whereof she was so suffocated and in,jurc(l as to cause her death. The District Attorney offered in evidence a deposition of the deceased, taken and sworn to on the 2'2d of December, 1844, before the connnit- tiug magistrate, and which deposition was again sworn to by her before the coroner on the following day, in the presence of the prisoner and his counsel, having been previously read over to her b}' the coroner. It was proved that she was dangerously ill at the time, and in imminent l)eril of death ; that upon being asked by the coroner if she considered herself in a dying situntion, she answered several times, she " hoj.ed to God she might get well," and that she " hoped God would have mercy on her." She was then in the hospital, where she remained until her death, which took place on the third day following. The Prisoiier's Counsel objected to the deposition being received in evidence as a, declaration made in extremis, contending it had not been shown that the deceased was full}' conscious of her hopeless situation ; and that her declaration had not been made under such a realizing sense of impending death as was essential to impart to it the sanctity of an oath. The CoiUT was of opinion that the consciousness of her actual situa- tion was sufficiently apparent, and, therefore, overruled the objection and admitted the evidence. It was proved, on behalf of the prosecution, that the deceased, with her husband and children, resided in a wooden shanty or dwelling, the only door of which was in the frtjut, and that it was distant about five yards from the prisoner's residence. On the 21st of December the prisoner had thrown stones at the deceased, who expressed the intention of taking out a warrant against him. On the morning of the following (lay, between six and seven o'clock, the prisoner came out of his house and piled wood-shavings and straw at the door of the deceased's resi- dence, to which he then set fire. The deceased attempted to escape through the door, but was forcibly thrust back by the prisoner, who stabbed her in the thigh with a sharp instrument attached to a stick. She went to the window with her son, a boy of about thirteen years of age, when the prisoner threatened to cut her throat • she then swooned 30 THE LKOAL TKST UK INSANITY I'uopltj V. Klolni. :i\V!iy uiul became .senseless. The prisoner retired to his own house, iuid the iieijfhitDi's, to reseuo the inniati's of the slianty, broke open ii window and took out the boy and an infant unliurt. They found the deceased lying insensil)le on a, bed. Thu prisoner fastened his own house, which was shortly tiflerward broken open by the ollicers who arrested him. The defence was insanity, iind several witnesses testified to the general deportment, and to particular acts of the prisoni'r, for a long time prior and down to the time of tlie commission of the offince, for the purpose of proving his insanity at that time, und for a considerable period previous thereto. The following medical witnesses were then examined on l)ehalf of the prisoner: Dr. Tellkanii)ff testified that he had given a good deal of attention to cases of insanity. He had seen the i)risoner several: times since his ariest, and at each interview had conversed with him both in the English and German languages. From this investigation witness concluded he had been suffering from monomania or melancholia, and that he was insane ; he appeared quite insensible as to the fate that awaited him, and did not seem conscious of the offence ho had com- mitted. The witni'ss had heard tlie previous testimony on the trial. He did not consider the [irisoner to have been imbecile from birth. Dr. I'liny Earle, Superintendent of the Bloomingdale Lunatic Asylum, had been specially engaged in the treatment of insane persons for more than three years. At the request of the circuit judge the witness visited the prisoner several times since his arrest. He had heard the previous evidence on the trial. The witness was then asked by prison- er's counsel, if, from the evidence of the witnesses he had heard tes- tify, as well as from his own experience and obsei'vation, he was of opinion that the prisoner was insane? The District Attorney objected, and The Ciuci IT JiDOE decided that the question, if admissible at all, could not be put until after all the testimony relative to the question of sanity had been given, and even then, m^tin the form now proposed. The witness then testified, that from his personal examination of the prisoner, and without regard to any of the testimony given, he believed the prisoner to be insane; that his stolid expression of countenance, and his apparent apathy for, and unconsciousness of, his situation, had tended to the formation of witness' opinion. The Prisoner's Counsel then asked : " From the testimony you have heard in this case, in relation to the conduct and previous life of the asl \vi| 111 stil .lui by I u"f sta he EVlliKNCK Ol" I:\IM: UTS. 31 Form of (jiit'stli»ii« vn lioiise, Ivo open u fotiiid tlic 1 lii.s own iccrs who (1 to the For ji loiiji t'liicc, for isidcrable !ilf (»f the I deal of rat times u both ill II witness olia, and fate tliat lad com- ;lie trial, th. Dr. in, had r more T\'itne.ss ird the prison- ird tes- was of at all, ition uf sed. of the elieved nance, n, had have of the prisoner, what is yoin* oi)inion of the stale nt his mind at the lime of the c'onunission of the act for which he stands charj^i-d ? " 'J'lie District AHorncy ohjected that the question was baseil on the assumption of tin' truth of the facts, and involved an expression of the witness' opinion as to their truth, wliicli was a point to Ik; decided by liie .jnry. The CoiKT disMllowcd the (jwestion, observiiiLC that it soniiiit to sid)- stitnte the opinion of tlie witni-ss for tiie decision of llie jury ; that the (|uestion should not be limited or conliued to any particular i)eri(jd, for by so doing the medical witnesses would be made to usurp the province of the jury. It was true that the issue to be trie(l was the prisoner's stale of inind at the time of committing the offence, — that ])oint was to l)e di'termiued by the jury. On the cross-i-xamination of tlu' witness, the district alUjrnev, after stating seveial of the facts relating to the prisoner's conduct, which has lieen proved, asked if such fncts would affect or alter the witness' opinion as to his sauit}'. The Prisoner's Comisd olgected that the case put by the (juestion diil not include all the facts which had been proved, all of which should be included as the basis of the opinion of the witness. The CouKT agreed with the prisoner's counsel that, in view of the main question, the proper course was to ask the opini(jn of the witness on all facts given in evidence, as the selection of particular parts, or classes of actions, as the foundation of opinions, would lead to a great prolixity, and tend to no satisfa(!tory result. Viewing it, however, as a means of testing the accuracy of the witness' observation, and the value of his opinion, the question was relevant and must be allowed. On re-examination, the witness was asked: " Whether the conviction he had formed from his own examination of the prisoner hail been con- firmed by the testimony he had heard in court?" which question was objected to. The CoLRT overruled the question as involving an expression of opin- ion as to the truth of the facts testified to. Dr. J. 11. Schmidt testified that he had examined the prisoner with regard to his state of mind, and that from his observation, and the general appearance of the prisoner, he thought him to be insane. lie was of opinion that the prisoner was laboring under the mental disease termed dementia, which included imbecility, monomania, and according to some writers, though not in the opinion of the witness, idiocy. The District Attorncu pressed the witness to state what division of dementia, as defined above, the prisoner was laboring under, l)ut — 32 THE i,i:gal test of insanity. People V. Kleim. 'The CoLUT restraineil further inquiry upon this point, tlie circuit ju(\ge observing that the witi."'ss had already stated the distinguishing features of the generic term dementia; that it would be useless to pursue the subject through all the divisions and class" ncations of Avriters on the subject, as, wlien he should charge the jury, he should instruct them that the question for their deterraination was the prisoner's capacity to distinguish between right and wrong ; whether he v.'cr: lab > ing under such alienation of mind, dementia, monomania, or whatever else it might be called as ainountetl, in their judgment, to such a deprivation of reason as to exempt him from legal responsibility for crime ; and that, in forming their conclusion, they were not to be gov- eined by the refinements or distinctions found in the books on insanity, and introduced into those treatises, merely as heliis to an orderly and logical mode of treating the subject. The P7'isoner'3 Counsel h;re rested, and the district attorney called witnesses to rebut the defence. The police ofllcer who conveyed the prisoner to gaol was asked: " If at the time of the prisoner's arrest, and during his way to prison, the witness saw any fact, or observed any action which he thought so inccherent as to make him believe the pris- oner was disordered in his mind? " This was objected to as involving an expression of opinion upon the facts or actions. The CouuT allowed the question, on the ground that it was only asking if the witness had observed anything strange or unusual. Regarding the facts, it was a jiroper question, and it was difficult to separate the opinion from the fact. The District Attorney asked of one of tlie medical witnesses called for the prosecution: *' Whether, if the prisoner had ccmmitted homicide, he had, in tne opinion of witness, sufHcient capacity to know ho was vio- lating tho moral law? " The C(»UKT overruled the (pie^tioii, inasmuch as that was [necisely the issue which Avas submitted to tiie jury, and it would be usurping their pntvince to allow it to be put to the witness. The CmcriT Jruoi:, during the progress of the examination of the medical witnesses, said that the court, yielding to the authority of the Cose of Ahner Bi.qi-rft, ^ in which the same defence was set up, would adopt the form of question thei'j allowed, which wrs: "Assuming the facts to be true which you have heard testified to, what is your opinion as to the prisoner's sanity, or otherwise? " and would confine the coun- sel for the defence to that fo'in of question. Com. c. Kogers, 7 M<'tc, 5(10. le circuit Jiguishing to pursue writers on I instruct irisoner's ^'Cir. lab :•- wliatever ;o such a Ability for o be gov- » insanity, derly and ley called vcycd the rrest, and grved an}' the pris- upon the was only unusual. ilHcult to jailed for licido, he hvas vio- |isely the Ing their in of the ly of the I), -would liing the ojiinion lie coun- EVIDENCE OF FORMER VERDICT. 33 rrojudicc against Defense of Insanity. Tlic District Attorney then offered to prove b}- the records of the court, the proceedings on the inquiry as to the prisoner's sanity at tlie time of his being first arraigned on tiiis indictment, and which arc above set forth. lie contended that the verdict on that inquiry was competent evidence to go before the jury on the present issue. Tiic Prisoner'' s Counsel objected. TiiK CoriiT: It does not appear from the case cited by the prose- cuting counsel ■whether the proof was admitted after objection, or introiluced by consent. To admit the verdict on the previous inquiiy, would involve the necessity of going into the testimony on which it v/as predicated; and thus cause the present jury to sit in review of that verdict while trying the issue now presented to them. The evidence is, therefore, inadmissible. The CiKCL'iT Jnixiic charged the jury as follows : — He told them that there seemed to be no dovibt that Kleim had been guilty of the killing imputed to him, and that under circumstances of atroc- ity and deliberation wliicli we?"e calculated to excite in their minds strong feelings of indignation against him. But they must beware how they permitted such feelings to influence their judgment. Tliey must bear in mind that the object of punishment was not vengeance, but reforma- tion ; not to extort from man an atonement for the life which he cannot give; but by the terror ' the example to deter others from the like offences; and that nothing was so likely to destroy the public confi- dence in the administration of criminal justice as the inlliction of its pains upon one whom heaven had already al!!icte>l with tlie awful ranlady of insanity. It was true that insanity was sometimes .'''igned ; bi;t in the present advanced stage of the knowledge of the disease, it was almost, if not quite, impossible that such simulation could escape detection and e::pnsure wlien suojected to a careful and skilful examination. So it w;u true that the plea of insanity was sometimes ad(Ji)ted as a cloak for criras, and a shield against the consequences of its perpetration, and cases had occrred — that of Amelia Norman, and a recent occurrence at I'hilodelphia, were familiar instances — where popular feeling ran so stroni; in favor of tiie criminal on trial as to induce juries to seize with avidity upon this as an excuse for indulgiiig tlioir predilections for the prisoners. These things had worked in the public mind a prejudice against the defence of insanity, and had produced in courts and juries a disposition to receive it with extreme jealousy, and scrutinize it with praiseworthy caution. Yet, under all these disadvantages, it Avas, un- fortunately equally true that many more persons were unjustly con- s 34 THE LEGAL TEST OF INSANITY. People V. Klelra. victecl, and caused to suffer the punishment for crime, to wliom their 'unquestioned insiinity ouglit to have been an unfailing protection. After mentioning two or three C!isi>3 of the kind, of a remarkable character, he alluded to the examination he had then lately made among the insane convicts at the State prison at Sing Sing, where he found that, of thirty such persons, twcMity-two were, beyond all question, in a state of mental aberration at the time of their committal. He told the jury that he referred to these matters in order to impress upon their minds the necessity of calm doliberation, with an entire freedom from prejudice. He instructed them, also, that it was by no means an easy matter to discover or define the line of demarcati(jn where sanity ended and in- sanity began, and it very frequently occurred that a mental condition of aberration shaded off from a sound state of mind so gradually and im- perceptibly that it was dillicult for those most " expert " in the disease to detect or explain its begiiming, extent or duration. And in this, as in other diseases of the human system, there was an infinite variety, i:i> great, indeed, as almost to justify tiie remark that no two cases vor ever precisely alike. Hence it was necessaiy for him to remark to the jur}', in regard to the different kinds of insanity, which writers on the subject had described, and to which their attcnti(vri had been so earn- estly directed by the pn^secution, that it would be proper fur them to pay attention to such classifications only so far as to enable them to un- derstand the positions of these wiiters ; and those classifications were, in a great measure, arbitrary, and had l)een adopted mainly for the purpose of obtaining a clear and lucid manner of treating the subject ; and the jury were not obliged to bring the case of the prisoner within any one of the olassco or kinds of insanity thus defined, in order to acquit him of legal responsibility, for it was a well established fact tlint the diiiffuostics of the different kinds were continually running into, and mingling with, oach other. So, too, it was important that the jury shouUl be made precisely to understand how much weight was to be givci">to tho opinions of medical witnesses. The discoveries in the nature of the disease, and the im- provements in the mode of its treatment, had been so great in modern times that it had become almost a distinct department of medical science, to which some ])ractitioncrs devoted themselves exclusively. The opinions of such persons, especially Vr'hen to their knowledge they added the experience of personal care of the insane, could never be disre- garded with safety by courts and juries. And, on the other hand, the opinions of physicians who devoted their particular attention to the dis- DIFFERENT KINDS OF STATITOUV INSANITY. 35 Test iiiKi Hiinlcn of Proof. m their n. arkable e found on, in a iold the )n thoir •m from liitter to I iind in- dition of and im- B disease 1 this, as iviety, eu ises 'Aer'- :k to the rs on the so earn- tliem to in to un- 113 v\ere, for the snhjcct,' r within order to If rtct that ling into, :;isely to medical the ini- modern Iseionco, IV. Tlie [y added le disre- land, tlie the dis- ease, were not of any more vahie than the opinions of persons in other callings, nor, indeed, of so much value as tlie opinions of many not educated to the profession, but who had been so situated an to have given particular attention to the disease, and to patients suffering under it. There were two kinds of unsoundness of mind recognized in the stat- utes. One described as "lunatics, persons of unsound mind and in- capable of conducting their own affairs," and the other coiiiprelu'wded under the general appellation of "insane persons." It is with the latter class only that we have to do in the administration of criminal justice, and the inquiry for the jury, therefore, was wliether the pris- oner was an " insane person." What is meant by an " insane person " is now, and long has been, a matter of great dilTlculty. At one time it was held l)y courts to be only such an overthrow of the intellect that the at!licted person must " know no more than brutes " to be exempt from responsibility. At another time, he must be " unable to count twenty." As science and the knowledge of the disease progressed, it was found that very many were excluded ])y this very contracted rule '"om the protectic -. to which they were justly entitled, and the rule h.as been extended in modern times until it begins to comprehend within its saving influences most of those who, by the visitation of disease, are de- prived of the power of self-government. Yet the law, in its slow and cautions progress, still Ings fnr liehiml the advance of true knowledge. The inquiry to be made uiid: ■• t!ie rule of law. as now established, was as to the prisoner's knowledge of right and Avrong at the time of com- mitting the offence. Everyman is to be presinned sane, and to possess a ^utlicient degree of reason to be rt sponsible for his crimes until the con- trary be proved to the satisfaction of the jury; and to estal)lish a defence on the ground of insanity, it must be clearly pi'oAed that at the tune of committing the act, the party accusid was laboring uiMler such a •lefect of reason, from disease of the mind, as not to know the nature :ind qualit}' of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. And the question whetner the accused knew the difference between right and Avronr, is not to be put generally, bui^ in reference to the very act with wiiich he is charged, and the inquiry, tlicrefore, is, had the accused a sutlicieiu, degree of reason to know that he was doing an act that was wrong, or was he laboring under the species of mental aberration which satisfied the jury that he was quite unaware of the nature, character, and consequences of the act he was committing. If some controlling disease was, in truth, the acting power witLiu ' 86 THE LEGAL TEST OF INSANITY. People V. Kleim. him, which he could not resist, or if he had not a sufficient use of his reason to control the passions wliich prompted the act complained of, he is not responsible ; but we must be sure not to be misled by a mere impulse of passion, an idle, frantic humor, or unaccountable mode of action, but inquire Avhcther it is an absolute dispossession of the free and natural agency of the human mind. In the language of Erskine, "It is not necessary that I'eason should be hurled from her seat; it is enough that distraction sits down beside her, holds her trembling in her place, and frightens her from her propriety." And it must be borne in mind that the moral, as well as the intellect- ual faculties, may be so disordered by the disease as to deprive the mind of its controlling and directing power. In order, then, to constitute a crime, a man must have memory and intelligence to know that the act he is about to commit is wrong ; to re- member and luiderstand that if ho commits the act he will be subject to l)unisliraent ; and reason and Avill to enable him to compare and choose between the sui)posed advantage or gratification to be obtained by the criminal act, and the immunity from punishment which he will secure bj' abstaining from it. If, on the other hand, he have not intelligence and c apacity enough to have a criminal intent and purpose, and if his moral or intellectual powers are so deficient that he has not sufficient will, con- science, or controlling mental power, or if, through the overwhelming violence of mental disease, his intellectual power is for the time oblit- erated, he is not a i-esponsiblo moral agent, and is not punishable for criminal acts. Guided by these rules, the jiu'v were instructed by the court to inquire whether the accused was justly re '":)nsible for the act he had com- mitted, and they were to consider, as aids to a just inclusion, the ex- traordinary and unaccountable alteration in his whole mode of life ; tiie inadequacy between the slightncss of the cause and the magnitude of the offence ; the recluse and ascetic life which he had led ; his invincible repugnance to all intercourse with his fellow-creatures ; his behavior and conduct at the time the act was done, and subsequently during his confinement in prison, and the stolid indifference which he alone had manifested during the whole progress of the trial, upon whose result his life or death was dependent. And they must continually b.ar in mind that the punishments of the law, and especially its severest penalties, would be shorn of their salutary influence upon the public wlien inflicted up'tn one already suffering under one of the most severe and inflicting maladies to which human nature was subject. The jury returned a verdict of i>t (juii'ti/. on the ground of insanity. FLANAGAN V. PEOl'LK. >; I Arnumeut of Counsel. [The prisoner remaint'd a few yours in the asylum, and died there, his disease steadily growing worse until he became a mere drivelling idiot,] (I << K TEST OF INSANITY — ABILITY TO DISTINGUISH AS TO RIGHT OR WRONG OF ACT. Flanagan v. People. [52 N. Y. 467; 11 Am. Rep. 7;U.] In the Court of Appeals of New York^ January, 1873. . Hox. Sankokd E. Cnrncn, Chief Justice. William T. Allkx, RuFUS W. Pkckha.m, Makti.v Guovek, Chaklks J. FoLciEU, '• J'^'^Oes- " CiiAULES A. Rapai.lo, " Charles Andrews, The test of responsibility for a criminal act when unsoundness of mind ia sot up for a ilefence is the capacity of the defiinilant to distinguisli botwoen right and wroug ttt the time of and with respect to the act which is the subject of inquiry. EuRouto the Supreme Court to review a judgment of the general terra, in tlie first department, affiiining a judgment of the Court of General Sessions of New York, entered upon a conviction of the plaintiff in error, of the crime of murder in the second deoree. The plaintiff was indicted for murder in the first degree, in killing his wife. The defence was insanity. WilliaM F. Khitziug., for plaintiff in error. Although one has un- derstanding, yet if lie has no will, he cannot commit a crime.' The "right and wrong" test as to the contemplated net is not favored. ^ The power of choosing right from wrong is as essential to 1 gal respon- sibility as the mere capacity of distinguishing right from wrong.'' B. K. Phelps, district attorney, for defendants in error. One who is conscious that an act is wrong at the time he is committing it, and that it is in violation of law, cannot properly be said to be insane.* ' 1 Hale's P. C. 14; 4 nia. Com. 21. ' Ray on Insanity; Whart. it Stille's Med. •lur. ; IJeck, Dean, Taylor, Med. Jur. ; Hruwn's .Med. Jur. of Insanity; Rex v. Had- fleld, 27 How. St. Tr. 1282. Reg. t'. Bleasdale, 2 Car. & Kir. 765; Stute 1'. Windsor, :^ Ilarr. 512 ; People v. Pine, 2 Barb. 566; Scott i'. Com. 4 Mete. (Ky.) 227; Hop))8 » . l'ei)j)le, 31 111. 385; Fouls v. State, 4 G. (ireene (Iowa), 500 ; liilinan's Case, Whart. Crim. Law, 30; Com. v. Sherlock, 14 Leg. Int. 33;Sniith v. Com. 1 Duv. 224; Com. v. Kreth, 3 rhilii. io.->. " Willis I'. The People, 32 N. V. 71"). 38 THK LEGAL TEST OF INSANITY. Flanufiaii v. People Andrews, J. The judge, among other things, charged the jury that, " to estahUsh a defence on the ground of insanity, it must be clearly proven that at the time of committing the act (the subject of the in- dictment), the party accused was laboring under such a defect of rea- son from disease of the mind as not to know the nature and quality of the act he was doing; and, if he did know it, that he did not know he was doing wrong ; " and to this part of the charge, the prisoner, by his counsel excepted. The part of the charge .cepted to was in the language employed by TiNDAL, C. J., in Mi'Naghteu's Case,^ in the response of the English judges to the questions put to them by tlie House of Lords as to what instructions should be given to the jiny, on a trial of a prisoner charged with crime, when the insane delusion of tlie prisoner, at the time of the commission of the alleged act, was interposed as a defence. All the judges except one, concurred in the opinion of Tindal, C. J., and the ease is of the highest authority ; and the rule declared in it has been ailhered to by the English courts. Mailk, J., gave a separate opinion, in which he declared that, to render a person irresponsible for crime on account of unsoundness of mind, the unsoundness should, according to the law as it has been understood and held, be such as to render him in- capable of knowing right from wrong. In the case of Freeman v. People,- the language of Tixdal, C. J., in the Mcyii^jhte a C(r.se, was quoted and approved; and Beaudsley, J., said: "Where insanity is interposed as a defence to an indictment for an alleged crime, tlie inquiry is always brouirlit down to tlie single question of a capacity to distinguish between right and wrong at the time the act was done.'"* The rule was reatHrmed in the case of Willis v. People, ^ and it must be regarded as the settled law of this State, that the test of re- sponsibility for criminal acts, where unsoundnrss of mind is interijosed as a defence, is the capacity of the defendant to distinguish between right and wroiiL.. at tlie time of, and with respect to, the act wliich is the subject of the inquiry. We are ask(*« in this case to introduce a new element into the rule of criminal respousibility in case-; of alleged in«.anity, and to hold tliat the power of choosing riglit from wrong is as essential to legal responsi- bility as the capacity of distinguisliinu l)etween them; and that the ab- sence of the former is consistent with the presence of the latter. The arruraent proceeds upon the theory that there is a form of in- tll tl iii it 1 lOCl. &Fin.210. - 4 Denio, 29. ' 32 N. Y. 717. " MORAL INSANITY CRITICIt^Kl). 39 Hvils oi the Doctrine single Jit the and it of re- :'ri)o.sed 'tween licli is of in- sanity in which tlie faoihties are so disordered and deranged that a man, though lie perceive the moral quality of his acts, is unable to control them, and is urged by some mysterious pressure to the commission of acts, the consequences of which he anticipates, but cannot avc^id. Whatever medical or scientific authority there may be for this view, it has not been accepted by courts of law. The vagueness and uncertainty of the inquiry wiii(;h would be opened and the manifest danger of introducing the limitation claimed into the rule of responsil)ility, in cases of crime, may well cause courts to pause before assenting to it. Indulgence in evil passions weakens the restraining power of the will and conscience; and tlie rule suggested would be the cover for the com- mission of crime and its jiistitication. The doctrine that a criminal act may be excused upon the notion of an irresistible impulse to commit it, where the offender has the ability to discover his legal and moral dut}' in respect to it, has no place in the law. Roi.kk, B., in licg. v. Al- lunt, where, on the trial of an indictment for poisoning, the defendant was alleged to have acted under some moral intluence which he could not resist, said: "Every crime was committed under an iulluence of such a descrii)tion ; and the object of the law was to jompel these people to control tliese influences." The judge intended, by the proposition excei>ied to, as is apparent from the other i)art of the charge, merely to instinct the jury as to the character and extent of mental unsoundness which, if pioved, would shield from criminal responsibilit}' ; and it must have been so under- stood by the jury and counsel; and to the rule thus propounded by the judge, the exception was pointed. What was said as to the meas- ure of iM'oof of insanity was incidental and collateral to the main propo- sition ; and if an inadvertent error in phraseology crept in, it did not mislead, and was not excepted to. lu People v. McCaim,^ it was held that it was error to charge the jury in a criminal case that tlie insanity of the prisoner must be proved be- yond a reasonable doubt, to entitle him to an acquittal. This was the txtent of the decision. The question was not in tiic case, whether the [iiisoner would be entitled to the benefit of a doubt upon the evidence introduced by him to establish the defence. What is said by the learned judges upon that subject is entitled to such weight as their character and learning, and their arguments entitle it to.- It is not necessary f ir us t ) consider tlie (luestion in this case ; but we prefer to leave it pre- 16 N. Y. 58. 2 See People r. Schryver, 4-> N. Y. 1. 40 TIIK LKOAL TKST OF INSANITY. Walker v. IV()i)I(>. t'iscly wluTC the cases cited leave it, an open question, so far as judi- cial authority in this State is concerned. The exception considered is the only one presented or ar<;ued by coun- sel, and we are of the opinion that the judgment should be atfirmed. All concur; Rapa! l,o, J., in result. Judgment affirmed. TEST OF RESPONSIBILITY — BUUOKN OF PROOF. Waj.kkr V. Pkoplk. [2(; Ilun, CT: 1 N. Y. Criin. Hep. 7.] In the Supreme Court of Nero York {First Departmenf), October, 1881. 1. Test of Responsibility. — Wliere tlie dofenco of insanity is interposed to an indict- niont, tlio true test of criminal rej-pon.siljility is, wiictlu'r tlio aceuseil Imd sufllcient reason to know right from wrong. If lie had stilllcient intelligence to know it, whether he li:id suilicient power to control or govern liis actions is a matter of no moment wliatever. •2. Burden of Proof. — The burden of proving sanity does not fall upon the i)rosecution The presumption is iliat every one is sane, and the prisoner must overcome this pre- sumption by .'iiitisfactory evidence. If, however, there is reasonable Ooul)t as to ilie prisoner's sanity, arising upon the evidence in the case, and upon nothing else, the jury hliould ^ive the accused the benefit of that doubt and acquit liim. 3. Same— Instructions. — Where the recorder's charge, accomi)anicd tlie foregoing propositions wiili the instruction that tlie insanity must be clearly proi-en; hcld,tii&l tlie charge was correct. Witrr OF Eiiuoii to the Court of General Sessions for the city and county of New York to review the conviction of George Walker, the l)laintiff in error, upon an indictment charging him with the crime of abduction Geoi'ge Walker was tried and convicted at the August terra, 1881, of the General Sessions, for the crime of the abduction oi a little girl named Katie llviniessy, tuid was sentenced to the State prison for the term of ten years. The defence interposed to the indictment was insanity. It was proved that the prisoner had enticed a little girl, aged about eight 3'ears, from the street in front of her parents' house, in the city of New York, and had taken her into the up|)er part of the city. The attention of a passer-by having been attracted to Walker and the girl, he questioned the child, who said the man was not her father, that he was taking her away, and that she wanted to go home. The prisoner was arrested, and the child returned to her parents. WALKKU V. PKOI'LK 41 I'^v idciicc ami Iiistnictii)ii>- 1881, of ttle girl I for Ihu ;ut was Kiitio Iloniiess}', the aluluctod cliild, tostifiod, tlmt while she and the lirisoner were together on the street railroad, on their way up town, he h:i:^^ lA %0 i O"^ I 44 THE LKQAL TKST OF INSANITY. Walkur r. P-dplc. not entitled to the benefit of tlic rule governinii; that rivcrment to any greater extent than that ex[)resse(l b}' the recorder in this case; and it is to be given to the jury, as a rule, without conditions and without qualifications. If the testimony submitted for the consideration of the jury establisiied sucii mental infirmity as the rule itself suggests, then tlie prisoner is entitled to his discharge ui)f)n the ground of his irrespon- sibility. But if the testimony does not fidly respond to these require- ments, then he must suffer as a person presumed to be sane, and on whose l)elialf sufficient evidence had not l)een given to overcome tiiis presumption.! Tiiis is all that it is deemed nei.'essary to say with regard to the first request. 'i'he second request herein stated is subtle in its character; it is that ^ •> feiidant in a criminal case is not re(iuired to prove his insanity, in ordoi- • .ivail himself of that defence, but merely to create a reasonable double vi'ion this point, whereupon the burden of proving insanity falls upor. Jie Per»ple. It would be sufficient, in answer to the excei)tion which was taken to the refusal of the recorder to charge this request, that the i)urden of proving sanity does not fall upon the People in any case. The prisoner is arraingetl, and the jury are impannelled with two legal presumptions existing — 'one that he is innocent, and the other ihat he is s:uie. If tiie prisoner is to be relieved fr.'m the consequences of his offence, by reason of a mental infirmity existing at the time of his transgression, amounting to insanity, it l>ecomes his duty, or the duty of some person On his behalf, to overcome the i)rcsumption of sanity by satisfactory evidence, and the People may rest upon the pre- sumption of sanity without resorting to any proof. This i)oint has been expressly decided in Walter v. People,- which was a case of homicide. The court was requested to charge, as a proposition of law, that in a case where the defence consists of the insanity of the prisoner, it be- comes incumbent upon the prosecution to pi-ove him sane. The court said that, as an abstract proposition, the request was manifestly un- sound; that sanity was i)resumed to l)c the normal slate of the human mind, and that it was never incumbent upon the prosecution to give affirmative evidence that such a state exists in a particidar case. And this doctrine was reaffirmed in the case of Fern's v. People,'^ and again reasserted in the case of Drothi'rton v. People,'* in which Cihrcii, J., delivering the opinion of the court, said : "Sanity being the normal and usual condition of mankind, the law presiu.ies tliat every individual is ' Freeman r. People, 4 Denio, 0; Willis » 3-.' X. Y. 147. V. Peoplo, 32 H. Y. 717; Flanagan v. People, •' :i5 N. Y 125. Hi 1(1. mi. ' 75 N. V. 162. BURDEN OF PUOO' 4". Chari:, < f Court. ;nt to any id ; and il I without on of the ests, then irrespon- e require- sanc, and come tl»is ith regard it is that isanity, in •casonable anit}' falls exception s request, )le in any I with two the other sequences le time of ty, or the niption of II the pi-e- has been lomicide. tliat in a T, it be- he court stly un- e human |i to give e. And nd again ucii, J., Irmal and vidual ia in tiiat st:it«'; hi-ncc, a prosecutor may rest upon tliat presumption witliout oilier i)roof. The fact is deemed to be \\vi)ot prima f'liic." Inasmuch as the request contained more, therefore, than the prisoner was entitled to, the recorder was not obliged to charge it, under well settled rules. In addition, however to this response, it nuist be furtii(*r said, that the reciuest, aside from the oljjectionable portion wliich has been referred to, from its phraseology calU'd upon hitn to declare that Ibe defendant, in a criminal case was not required to prove his insanity, in order to avail himself of that defence, but merely to create a reason- al)le doubt upon this point, namely, ui)on the point of insanitj\ The learned counsel for the plaintiff in error, no doubt, designed to state that it wassulflcient for his client to create a reasonable doubt upon his sanity, but the request does not contain that proposition. If there were nothing else to be said ui)on this i)articular element of the case, this view might be regarded a3 hypercritical ; but the learned recorder snbstan- lially charged upon the rule which the prisoner's counsel doubtless in- tended to invoke by the request itself, for he said, after referring to the evidence of insanity : — " It is for you to determiiu'. upon all tliis evidence, wliether or not on June 15, 1881, when it is alleged that this mr \ pi'ri)etrati'd the of- fence of abducting this child, he was sane or insane; in other words, whether his mind was in such a condition that he was perfectly able to comprehend and understand the difference between light and wrong, and that he did know that he was doing a wrong act, if he had sufHcient niiiid to form that intent which the law requires must be proved to exist; ;iiid it is for 3'ou to determine those questions; they are purely ques- liiins of fact. If you come to the conclusion that the prisoner v.as iii-a.ie at the time it is charged he perpetrated this crime, you will find liitu not guilty on the ground of insanity. If you come to the conclu- sion, beyond all reasonable doubt, that he conunitted the crime of :il) liictiou as I have dellnecl it ; if the testimony satisfies you beyond a reasonable doubt of his guilt, and that he was not insane, it will be your iluty to convict; and further, if there is any reasonable doubt arising upon the evidence in the case, and ui)on nothing else, it will be your duty to give the prisoner the benefit of that doubt and accjuit him." It must be further said in regard to this request, that in the case of Brnthcrton v. People,^ it appeared that the judge in charging tin; jury used this expression : " The allegation of insanity is an affirmative i> lie, which the defendant is bound to prove, and you nuist l)e satis- fad from the testimony intro hi-e 1 liy him that he was insane." And 40 TIIK LROAL TEST OF INSANITY. Walker r. IVojilc he further charged that if llicrc was a well fouiKUsd doubt whether tlio man was insane at the time he fired the pistol, ti>e jury were to acquit him. It was held, that in these two paragraphs of tiie charije, taken toujethcr, there was no error, and the court in rcviewint; the trial said that t*lie prisoner was 1)ound to prove tliat he was not sane, and whether in- sanity was ealle iscd was do, and land, he ration of MIC critc- aiiity, as lid ill the It'd to an niitted in 'ids point le learned t was an- idulgence (nsciencc, of crime a excused e offender pect to it, h justice, a descrip- trol tliese */e.s',' this [It " if an the more ifeguards existing, iidcr such nee, and to be a ■ithdraw letration. nerknow )ing what tee of tlie jiny other reason, To a BUADT, Tlu! Cum- in tlir Court (l had sufli- ciuiit reason to know the nature and K to tlio Siiprcine Court. GiMU'nil Tfim in tlio First Depiirtincnt, Ui review the judixnu'ut of ullinnaiico in tliis cfise, just roportcd. Rai'ai.lo, J. — Tlio prisoner was inilictod anil tried in the Court of ricnoral Sessions of the city of Now York for ahilueting one Katie Ilciuiossy, .1 cliild bctweon seven .'ind ciglit years of age. Tlie evidence tended to sliow tliat tlie i)nipf)se of tlie nhduetor was to take indecent liberties with her. Tlie defence was insr.nity, and evidence was adduced on t'le p.'U-t of the prisoner in 8ni)port of tlmt defence. The only errors alleged in the case are the refusal of tl»e recorder to charge certain propositions snhmitted l)y the counsel for the prisoner, and tlie charge of the recorder on the subject of the proof of insanity required of the i)risorier. The exceptions to these rulings will be ex- amined seriatim. The first request was to charge "that the test of criminal responsibilit)', where the defence of insanity is interposed to an indictment, is, whetiier the accused had snlficient reason to know right from wrong, and whether or not he had sMfllcient power of control to govern his actions." The recorder charged the first part of this proposition, but declined to charge the latter part, "• wlietlier or not he had sufficient power of control to govern his actions." The doctrine of irresponsibility for a crime committed by a ])orson who had snlficient mental capacity to comprehend the nature and quality of his act, and to know that it wa,^ wrong, on the ground that he had not the power to control his actions, has not met with favor in the adju- dications in this State.' But, witiiout entering upon a discussion of the question on its general merits, we are of opinion, that in the present case, it would have been cLarly improper to submit to the jury any such vague test us that requested, when considered with reference to the character of the crime for which the prisoner was on trial, and the testimony which was before the jury as to his previous similar offences. The jury, upon the evidence, might have Tound thixt the prisoner had an uncontrollable propensity to abduct 3'oung girls, or that his appetites were so depraved and overpowering that he was unable to resist them, and if they so found, the charge, as requested, would have led them to suppose that it was their duty to acquit, even though they were satisfied that he was possessed of sufficient reason to know th.at the act was wrong and criminal. The court did charge that a man must have sufficient control of his mental faculties to form a criminal intent, V)efore he can be held respon- ' Flanagan v. I'ooplc, 52 N. V. 467. ^vA^Kl•:ll v. I'loori.K. f)l Upiiiloii of l!:iiKillt), J., ill Court (»f A|iiK'al>. pfirtincnt, I'd. Court of one Katie e evidence u indecent is adduced ocorder to prisoner, f insanity ,vill be ex- ile tost of osed to an tnow right control to t declined power of y ft person lid quality at he had the adju- ion of tlie le present jury any ere nee to , and the offences. soner had appetites sist them , d them to e satisfied e act was rol of his d respon- sible for a criminal act. This, we think, was as far as the court could go on the subject of control, under tlie circumstances of this ca.so. The second proposition requested to be cliargod was : " When* a per- son acts under the influence of mental disease he is not criminally ac- countable." This tlie recorder declined to charge, except as he intended to charge, and he did charge in tlic words of the statute, that " no act done by a person in a state of insanity can be piniisiied as an offence." Tliis was a much more accurate statement of the law tnan that reciuested, and it was not error for the recorder to give it the preference, and decline to adoi)t the phraseology of counsel. The third request to charge was that "the defendant in a criminal case is not required to prove his insanity in order to avail himself of that defence, but merely to create a reasonable doubt upon this point, whereupon the burden of proving his sanity falls upon the People." This request was refused, and an exception taken. The recorder, in his charge, instructed the jni y on the subject of the bunlen of proof as to the sanity of the prisoner, in entire accordance with the decisions of this court. After having instructed them, in a manner not excepted to, as to what constituted sanity and insanity, he said to them: " It is for you to determine those questions; they are I)urel y questions of fact. If you come to the conclusion that the prisoner was insane at the time it is charged that he perpetrated this crime, j-ou will find him not guilty on the ground of insanity. If you come to the conclusion beyond all reasonable doubt, that he committed the crime of abduction, as I have defined it; if tlie testimony satisfies you, beyond a reasonable doubt, of his guilt, and that he was not insane, it will he your duty to convict. If there is any reasonable doubt aiising on the evidence in the case, and upon nothing else, it will be your duty to give the prisoner the benefit of that doubt and acquit him." The burden of establishing, beyond a reasonable doubt, as one of the elements of guilt, that the prisoner was not insane, was by this charge cast upon the prosecution. Indeed, on examining the whole case it appears that the sanity of the prisoner was the only controverted point, the sole defence being his insanity, and it was the only serious question presented for the consid- eration of the jury. The most recent expression of this court, in respect to the burden of proof in cases where the defence of insanity ia interposed, is contained in tlio opinion of Danforth, J., in the recent case of O'Connell v. 52 TUB LKOAL TK8T OF INSANITY. WttlkiT V. People. People.^ It was there said, in substance, that the guilt of the pria- (iiuT depi-ncU'd upon two questions, viz. : wlietlicr he committed the act charged, and whether he was in such condition of mind as to Ite responsible ; tiiat the bunien of proof as to both wag upon the l)rosecuti(>n ; tliat the legal presuuiption tliat every man is sane, was sufficient to establish his sanity until repelled by proof; that if the prisoner gave no evidence, the fact stood. If he gave evidence tending to overtlirow it, the prosecutor might produce answering testi- mony ; but he must satisfy the jin-y, upon the wliole evidence, that the prisoner was responsible; for the alllrinative of tiio issue tendered by the indictment remained witli tlic prosecution to the end of the trial. ^ In the case of O'Connell v. People, above cited, a specific request was made and the court refused to charge that " if from the evidence in the case a reasonable doubt arose in tlie minds of the juiy as to the sanity or insanity of the defendant, that he was entitled to the benefit of that doubt." This proposition, was in the abstract, entirely sound, and in accordance with the views expressed by tliis court, but the refusal to charge it was sustained here, on the ground that the same point was covered by the general charge, in whicli, after submitting to the jury tlic question of the sanity or insanity of the piisoner, with the instruc- tion that if insane he was not responsible, the judge charged tliat if they had a reasonable doubt, from the evidence, that the prisoner was guilty of the crime, they should give him the benefit of tliatdoul)t. This court held, in substance, that where the judge properly submits to the jury a 'Proposition covering the whole issue, and instructs them that they must find it beyond a reasonable doubt, he cannot be required to subdivide it and charge separately as to eacli of the elements necessary to constitute tlie crime ; that it must be established beyond a reasonable doubt. In this holding we confirmed the conclusion reached in the present case by the presiding judge at general term, that when the judge gives to the jury in his charge tlie true rule applicable to the case, when it comes to be considered on all the evidence, it is not error to refuse to sulimit aseparate proposition, which, even though correct in itself, is only calculated to confuse the jury by distracting their attention from the test question, which is to be determined on the whole evidence. These re- marks apply specially to llie case at bar, for the request to charge is by no means as accurate as that in the case of O'Connell. It involved two propositions ; first, that tlic defendant is not bound to prove his insanity to avail himself of that defence. This is inaccurate, for he must, be- > 87N. Y. 377. s See also Urothcrton v. People, 7.') X. Y. 159. IJUKDKN OF IMJUOK fid Discussion of McNngliten's Case. ! tho pris- cominitted f mind as 9 Upon the I is snnc, oof ; that e evidence jring testi- 2, that the ndcred by le trial. 2 cqiK'st was Mice in the the sanity jfit of that nd, and in refusal to ! point was o the jury [he instruc- 'iiit if the}' was guilty y submits nets them required necessary easonable led in the the judge e, when it refuse to If, is only m the test These re- arge is by olved two 3 insanity must, be- ;r> N. Y. 159. yond cavil, give proof of it, or the presumption of sanity prevails, and the rciiuestwas notconllniMl to conclusive proof or pnxtf beyond a rca.sonalilc doubt. Secondly, that he is only required to create a reasonable doiili- a.s to his sanity. This is extremely vague, and well calculated to mist lead, especially as connected with the first branch of the re([uest. It is not even confined to a doubt arising up(;n the evidence. But even iiad the request l)ecn framed accurately, our recent decision, above referred to holds, that it was not error to refuse it, where the point was fully cov- ered by the charge as given. Tho remaining exception relates to tlie charge that "to establish a defence of insanity it must l)e clearly proved," etc., the exception being to ti.e expression " clearly proved." Tiiis was not the language of the recorder, but was read from an opinion which he adopted, and is a quotation from the opinion of Ch. J. TivT).\r. given in the celebrate(l McXnghtcn Case. ' If, l)y this expression, the jury were given to imderstand tiiat the insanity must bo proved beyond a reasonable doubt, it of course was at variance with tlie law of this State. 2 But if it meant that there should be clear and substantial evidence of insanity to justify an acquittal on that ground, it was unobJectional)le.^ The adoption of the language used in the Mi'Xrtghtrn Cnse^ that the (left lice of insanity should be clearly ])rove(l, having lieen accompanied ill the i)resent case with the instruction tiiat if the testimony satisfied the jury beyond a reasonable doubt of tlie guilt of the prisoner, and that he was not insane, it would be their duty to convict ; but that if there was an}' reason.able doubt arising upon the evidence in the case, it would be their duty to give the prisoner tlie benefit of that Intoxication no Defence, When. — If ii pcrsmi, while huii<< ami rrsiiDnsiiiir, miikps hiniKult inliixii'iitctl, and wlnlo iiitnxiciitiMl, ('uiniiiitH iniinltT hy roii-on of insanity. wliH'h WHS mil! iif ilii> ('iiiisu<|Uuii('L-s of iiiliixiCiUiiiii, anil niu' df llii' attcinlaiits mi thai htatL', hu Is ruMpuuMhlo. 0. Burden of Proof — 'I'hi- law ilm^* imt iircsiiinr Insanity arose from any iiarticiiliir c.aiisi' ; niid if the ^nvrrniniMil a>Hiiilly> lluiii^h in-.ane, liri'ausu Iiih in..-aiiitj wan ilriiiiktMi inailuuss, tlil.s allcgalimi niiisl be priivud. This WHS an iiulictiueiit for tin- iiuii'iUt of Cliarles A. .Jolinson, first otllcer t)f llu! Italic Lewis, of Saleiii, liy tlie .sefDiul olllt-er of tlie hark. Oiu! count alU'gtitl tin; offi'iice to have bei oiimiiUed on the hitrlisea.s. and anotiu;r in u hay wilhin the doiuinioii.s vi the Iniaiiiu of .Muscat, ii foreign prince or sovereign. The facts, so far as tliey are necessary to raise the questions of law, appear in tl* eliar;,'; to the Jury. Liiiit, tlistriet attorney, for the I'nited Strte.'^ , ii'. ('/lontc iuu\ Xorth- I '"' for the prisoner. CuiiTia, ,1. — The prisoner is indicted for the murder of Charles A. Johnson. It is ineiiinlteiit on the goveinnient to pnjve, beyond reason a' lie doubt, the tiiith ot every fact in the indictnicnl, necessary, in |)oiiit of law, to const itule the offence. These facts need not lie proved licyond all possible iloulit; but a moral conviction must be produced in your minds, so as to enable you to say that, on your consciences, you ill) verily believe their truth. These facts are, in part, controverted, and ill p;ii"t, as I understand the course of the trial, not controverted ; and ii will be useful to separate the one from the other. That there was an unlawful killing of JMr. Johnson, the person mentioned in the iiidict- iiient, by means substantially the same as are therein described; that the mortal wound immediately i)rothicing death, was inllicted by the prisoner at the bar; that this wound was given, and the death took place on board of the bark Lewis, a registered vessel of the United States, belonging to citizens of the United States ; that Johnson was the fii.st, and the prisoner the second olHcer of that vessel, at the time of the occurrence ; that the vessel at that time was either on the high seas, as it is charged in one count, or upon w.aters within the dominion of the sultan of 3Iuscat, a foreign sovereign, as is charged in another count ; and that the prisoner was first brought into this district after the commis- sion of the alleged offence, — do not appear to be denied, and the evi- tk'hce is certainly sufficient to warrant you in finding all these facts They are testified to by all the witnesses. It is not upon a denial of either of these facts that the defence is rested; but upon the allegation by the defendant, that, at the time the act was done, he was 56 THE LEGAL TEST OF IXSAMTY. United States v. MeGlue. i so far insane as to l)e criminally irresponsible for his act. And this brings you to consider the remaining allegation in the indictment which involves this defence. It is essent. 1 to tlie crime of murder that the killing should be, from what the law denominates malice aforethought ; and the government must prove this allegation. But it is not necessary to offer evidence of previous threats, or preparation to kill, or that there was a previously premeditated design to kill. These thinH THE LKCAL Ti:sr (II" INSANITY United Stiitis r. McCliU', far insane as to bo held by the hnv irresponsible for intentionally killing Mr. Jolnison. Some observations liave been made, by the eounsel on each side, re- specting tlie character of tliis defence. On the one side, it is urged upon you that tlie defence of insanity has become of alarming fre- quency, and tliat there is reason to believe it is resorted to by great criminals, to shield them from the just consc'iuences of their crimes, when all other defences are found desperate ; that there exist in the community certain theories concerning what is called moral insanity, held by ingenious and zealous persons, and brought forward on trials of this kind, tending to subvert the criminal law, and render crimes not likel}' to be jiuiiishcd somewhat in proportion to their atrocity. On the other hand, the inhumanity, and the intrinsic injustice of holding him guilty of 1 -urder, who was not, at the time of the act, a reasonable being, have been brought before you in the most striking forms. These observations of the counsel, on both sides, are worthy of 3'our attention, and their just effect should be to cause you to follow, stead- ily, and carefully, and exactly, the rules of law upon this subject. The general (jui'stion, whether the prisoner's state of mind, when he struck the blow, was such as to exempt him from legal responsibility, is a ques- tion of fact for your decision; the responsibility of deciding which rightly rests upon ycni alone. But there are certain rules of law which you are bound to api)ly, and the court, upon its responsibility, is to lay down ; and these rules, when applied, will conduct j'ou to the only safe decision ; because these rules will enable you to do Avhat you are sworn to do, that is, to render a verdict according to the law and the evidence given you. You will observe, then, that this defence of insanity is to be tested and governed Ity the principU-s of law, and is to be made out in accord- ance with legal rules. No defendant can be rightly acquitted of a crime, by reason of insanity, upon any loose, general notions which may be afloat in the communit}', or even upon the speculations of men of science. In a court of justice these must all yield to the known and fixed rules which the law prescribes. And I now proceed to state to 3'ou such of them as are applicable to this case : — # The first Is, that this defendant must be presumed to be sane till his insanity is proved. Men, in general, are sulHciently sane to be respon- sible for their criminal acts. To be irresponsible, because of insanity, is an exception to that general rule. And before any man can claim the benefit of such an exception, he must prove that he is within it. You will, therefore, take it to be the law, that the prisoner is not to be IXSANITY VIIKII DOKS NOT EXCUSE. 59 Tlio LeSiil Test. lly killing side, rc- t is urgitl ming fre- 1 by great ir crimes, xist in the [ insanity, 1 on trials crimes not ,'. On the jlding him reasonable ■ms. hy of your low, stcad- ,ject. The n he struck •, is a qucs- lliiig which law which y, is to lay only safe li are sworn \c evidence |o be tested in accord- )f a crime, ,'h may bo )f men of tnown and jtate to you ine till his Ibe respon- ]f insanity, |i claim the it. You I not to be acquitted, upon the ground of insanity, unless, upon the whole evidence, you are satisfied that he was insane when he struck the blow. The next iufiuiry is, what is meant by insanity — wluit is it wliich exempts from punislunoiit, because its existence is inconsistent with a criminal intent? Clearly, it is not every kind and decree of insanity wliich is sulficient. There have been, and probably always are, in the world, instances of men of great general ability, filling, witli credit and usefulness, eminent positions, and sustaining through life, with high honor, the most important civil and social relations, who were, iipon some one topic or 8ul»ject, unquestiomibly insane. Tiicre have been, and undoubtedly always are, in tlie world, many men whose minds are s-iich, that the conclusions of their reason and the results of their judg- •iient, tested by those of men in general, would be very far astray from right. There arc many more, whose passions are so strong, and whose conscience and reason and judgment are so weak, or so i)erverted, that not only particular acts, but tlie whole course of their lives, may, in some sense, be denominated insane. And there arc comliinations of these, or some of these deficiencies or disorders, or perversions, or weaknesses, or diseases. Tliey are an important, as well as a deeply interesting study ; and they find their place in that science which minis- ters to diseases of the mind, and which, in recent times, has done so much to alleviate and remove some of tlie deei)est distresses of huma" ity. But the law is not a medical or metaphysical sciem-e. Its search is after those practical rules which may be administered, without inhumanity, for the security of civil society, by protecting it from crime. And, therefore, it inquires, n )t only to the peculiar constitution of mind of the accused, or what weaknesses, or even disorders, he was afllioted with, but solely whether he was capable of having, and did have, a criminal intent. If he had, it punishes him ; if not, it holds liim dispunishable. And it supplies a test by which the jury is to ascertain whether the accused be so far insane as to be irres[)onsible. Thatti'st is, the capacit\' to distingi;isli l)etween right and wrong, as to the particular act with which the accused is charged. If he under- stands the nature of his act; if he knows his act is criminal, and that if he does it, he will do wrong and deserve punishment, then, in the judgment of the law, he has a criminal intent, and is not so far insane as to be cxtMupt from responsibility. On the other hand, if he is under such dtlnsion as not to understand the nature of his act, or if he has lift suflicient memory and reason and judgment to know that he is doing wrong, or not suflicient conscience to discern that his acts criminal and deserving punishment, tl'tn he is not responsible. 60 THE LEUAL TEST OF IX.SAXITV Unitf«l States v. McUlue. This is tlie test wiiieli tlie law prescribes, and tlieso are the inquiries which you are to malie on thi.s part of tlie case: Did tlie prisoner understand the nature of his act when he stabbed Mr. Johnson? Did he knf)W he was doing wrong, and would deserve punishment? Or, to apply them more nearly to tliis case: Did the prisoner know that he was killing Mr. Johnson ; that so to do was criminal and deserving punish- ment? If so, he iiad the criminal inti'ut necessar}'' to convict him of the crime of murder, and he caiuiot be acquitted on the ground of insanity. It is not necessary here to consider a case of a person killing another under a delusive idea, which, if true, would either mitigate or excuse the offence, for there is no evidence pointing to any such delusion. It is asserted by the prisoner, that when he struck the blow he was suffering under a disease known as delirium tremens. He has intro- duced evidence tending to prove his intemperate drinking of ardent spirits during several days before the time in question, and also certain effects of this intemperance. Physieians of great eminence, and parti- cularly experienced in the observation of this disease, have been examined on both sides. They were not, as 3'ou observed, allowed to give their opinions upon the case ; because the case, in point of fact, on which any one might give his opinion, might not be the case which you, upon the evidence, would find ; and there would be no certain means of knowing whether it was so or not. It is not the province of an expert to draw inferences of fact from tlie evidence, but simply to declare his opinion ui)on a known or liypothetical state of facts ; and, therefore, the counsel on each side have put to the physicians such states of fact as they deem warranted b}' the evidence, and have taken their opinions thereon. If you consider that any of these states of fact put to the physicians are proved, then the opinions thereon are admissible evidence, to be weighed by 3011. Otherwise, their o[)ini(jns are not applicable to this case. And here, I may remark, gentlemen, that, although in general, witnesses are held to state only facts, and are not allowed to give their opinions Iii a court of law, yot this rule, does not exclude the opinions of those whose professions and studies, or occui)ations, are supposed to have rendered them peculiarly skilful concerning questions which arise in trials, and which belong to some particular calling or profession. We take the opinions of physicians in this case for thf same reason we resort to them in our own cases out of court, because they are believed to be better able to form a correct opinion, upon a subject within the scope of their studies and practice, than men in general, and, therefore, better than those who compose your panel. But these opinions, though proper for jour respectful consideration, OriMONS OF PHYSICIANS. <>1 Dt'liriuin TrciiRus. i inquiries B prisoner ion? Did ,? Or, to hat he was ig punish- hiin of the f insanity, iig another or excuse ision. ow he was has intro- of ardent ,lso certain and parti- have been allowed to of fact, on [Which you, n means of an expert declare his therefore, tes of fad ir opinions )ut to the |e evidence, )lic;ible to lltlioui^b in owed to elude the titions, are questions 1 calling or ! for tht' u, because ^1, upon 11 \in men in )ur panel, kideration, all. and entitled to have, in 3'our hands, all that weight which reasonably and justly belong to them, are nevertheless not binding on you, against your own judgment, but should be weighed, and, especially where they differ, compared by 3-011, and such effect allowed to them as you think right; not forgetting, that on you alone rests the responsibility of a correct verdict. Besides these opinions, upon cases assumed by the counsel, which you may find to correspDud more or less nearly with tlie actual ease on trial, the physicians have also described to you the symptoms of the disease of delirium tremens. They all agree that it is a disease of a very distinct and strongly marked character, and as little liable to be mistaken as any known in medicine. All the phj'sicians have described it substantially in the same way. I will read to you from my notes that given by Dr. Bell. He says the 83'mptoms are : — 1. Delirium, taking the form of apprehensiveness on the part of the patient. He is foaiful of something, — fears pursuit by oJlicers or foes. Sometimes demons and snakes are about him. In the earlier stages, in attempting to escape from his imaginary pursuers, he will at- tack others as well as injure himself. But he is much more apprehen- sive of receiving injury, than desirous of inllieting it, except to escape. He is gonerally timid and irresolute, and easily pacified and controlled. 2. Sleeplessness. I believe delirium tremens cannot exist without this. 3. Trcmulousness, especially of the hands, but showing itself in the limbs and the tongue. 4. After a time sleep occurs, and reason thus returns. I do not re- call any instance in which sleep came on in less than three days, dating from the last sleep. At first it was rather l)roken, not giving full relief : and this is followed by very profound sleep, lasting six or eight hours, from which the patient wakes sane. Dr. Stedman, who, from his care of the Marine Hospital, at Chelsea, and of the City Hospital, at South Boston, has had great cxpci'ience in the treatment of this disease, after describing its sym^itoms substan- tially as Dr. Bell did, says its access may be very sudden, and he has often known it first manifest itself by the patients attacking those about them, regarding them as enemies ; that it is in accordance with his experience, th:ita case may terminate within two da^-s of the time when the delirium first manifests itself, and that it rarely lasts more than four days ; that he lias arrested the disease in forty-eight hours by the use of sulphuric ether. Taking along with you these accounts of the s}^mptoms and course and termination of this disease, you will inquire wliether the evidence T ()2 THE LEGAL TEST OF IN.SANITV. Uiilti'd StatL-s V. McGUu' proves these symptoms existed in this case ; and whether the previous luil)its and thi; intemper:i,te use of ardent spirits, f rom wliieli tins disease springs, are shown ; and wliether the recovery of the prisoner corre- sponded with the course and termination of the disease of delirium tremens^ as dcsciil)ed l)}* tlic pliysiciuns. In respect to the [)revi()us intemperance of t'.ie prisoner, and the symp- toms, course, and tcrminatii^n of tlie disease, you are to look to the accounts of the conduct and acts of the prisoner given by his shipmates. Their testimony will be fresh in your recollection, and it is not neces- sary for me to detail it. How recently before the homicide had he slept? Was his demeanor, for two or three da3's previous, natural, or was he restless? Was any tremoi- of the hands or liml)s visible, and if so, was it very marked or not? Did he utter any exclamations manifest- ing apprehensiveness before or immediatel}' after the act? W^hen, and under what circumstances did he recover his reason, if he was delirious, and especially did he recover it without sleep? T ese are all important inquiries to be made by you, and answered, as a careful consideration of the evidence may convince you the}' sIkjuUI be answered. It is not denied, on the part of the government, that the prisoner had drank interapcrately of the ardent spirits of the country during some days before the occurrence. But the district attorney insists, that he had continued so to drink down to a short time before the homicide ; and that when he struck the bhnv it was in a fit of drunken madness. And this renders it necessar}' for me to instruct you concerning the law upon the state of facts, which the [)rosccutor asserts existed. Although delirium tremens is the product of intemperance, and there- fore in some sense is voluntaril}' brought on, yet it is distinguishable, and by the law is distinguished, from thai tiiaduess which sometimes accompanies drunkenness. If a person suffering under delirium tremens is so .. men in general are sane, the law presiim* s each man to be so till tlie contrary is proved. But if tlie contrary hns been proved, if you are satisfied the prisoner was insane, the law docs not presume his insanity arose from any particular cause ; and it is in- cumbent on the i)art3'' which asserts that it did arise from a particular cause, and tiiat the prisoner is guilty, by law, because it arose from that cause, to make out this necessary element in the charge to the same extent as every other element in it. For the charge then assumes this form, — that the prisoner committed a murder, for which, though insane, he is responsible, because his insanity was produced by, and accompanied, a state of intoxication. In my judgment, the government must satisfy you of these facts, which are necessary to the guilt of the prisonor in point of law, provided you are convinced he was insane. You will look carefully at all the evidence bearing on this question, and if you are convinced that the prisoner was insane, to that extent which I have described as necessary to render him irresponsible, you will acquit him; unless you are also convinced his insanity was produced by intoxication, and accompanied that state ; in which case you will find him guilty, The prisoner teas acquitted. 04 TllK LEiJAL TEST OF INSANITY 8tiitu V. Jones. (I NO LEGAL TEST OF INSANITY. State v. Jones. [50 N. II. 309; 9 Am. Rep. 242.] In the Supreme Court of New Hampshire, June, 1871. Hon. IIknry a. Bki.lows, C kief Justice. ** JONATIIAX E. SaUOKNT, ClIAKLKS DOK, Jkkkmiaii Smith, [ Judges. WlI.I.IAM L. FoSTKH, William S. Ladd, 1- There is noljefral Test of Insanity in ii criminal case. Question is. Was Crime the Result of Mental Disease? — On the trial of an indict- ment for muriier, the jury were instructed that if the prisoner committed the act in a manner that would be criminal and unlawful if he was sane, the verdict should be " not guilty by reason of ini>anity," if iho killing were ihu offspring or product of mental disease in the prisoner. Held, correct. The (lefend.int was foil ml guilty of murder in the first degree, upon an indictment cliarging liim with having murdered his wife. Defence, insanity. There was evidence tending to show that defendant believed his wife guilty of adultery with one French, and that he killed lier for that reason. This belief was alleged, on the part of the defendant, to have been an insane delusion. The defendant excepted, to the several refusals of the court to give the jury each of the following instructions: — 1. Under the indictment the defendant cannot be convicted of murder in the first degree. 2. If the defendant was diseased in mind to any extent whatever, and the mental disease, under which he labored, had any influence what- ever in leading him to kill his wife, he was not responsible. 3. Any degree of insiinity or delusion, and especially such insanity or delusion as would render the defendant incompetent to make a will, makes him also incapable of crime, and not responsible, though the jury may be unable to trace any connection between the partial insanity and the act complained of. 4. Delusion is the legal test of insanity. 5. If the defendant was under the influence of any Insane delusion whatever, or any insane delusion connected with the killing of his wife, he was not responsible. 6. Knowledge of right and wrong in respect to the act in question, is the legal test of insanity. "•I STATE V. JONE8. 05 Cliarjii- of tlie Court. 2. of an Indict- the act in a ould be " not ;t of mental it grec, upon Defence, believed d her for endant, to irt to give of murder tever, and ince what- li insanity life a will, the jury ^anity and delusion his wife, 1 question, 7. If the defendant killed his wife under the control of an irresistible impulse, he is not legally responsible. The defendant excepted to the following instructions given to the jury: — " If the defendant killed his wife .n a manner that woiJd be criraina' iind unlawful if the defendant were sane, tlie verdict should be ' not giulty by reason of insanity,' if the killing was the offspring or product of mental disease in the defendant. " Neither delusion nor knowledge of right and wrong, nor design or cunning in planning and executing the killing, and escaping or avoiding detection, nor ability to recognize acquaintances, or to labor or transact business, or to manage affairs, is, as a matter of law, a test of mental disease ; but all symptoms and all tests of mental disease are purely matters of fact, to be determined by the Jury. Wbether the defendant bad a mental disease, and whether the killing of his wife was the pro- duct of such disease, are questions of fact for the jury. " Insanity is mental disease, disease of the mind. An act produced by mental disease is not a crime. If tbe defendant had a mental disease which irresistibl}' impelled him to kill his wife, if the killing was the product of mental disease in him, he is not guilty; he is innocent — as innocent as if the act had been produced by involuntary intoxication, or by another person using his hand against his utmost resistance. Insan- ity is not innocence unless it produced the killing of his wife. " If the defendant had an insane impulse to kill his wife, and could tiave successfully resisted it, he was responsible. Whether every insane impulse is always irresistible is a question of fact. Whether, in this case, the defendant had an insane impulse to kill his wife, and whether lie could resist it, are questions of fact. " Whether an act may be produced by partial insanity, when no con- nection can be discovered between the act and the disease, is a question of fact. " The defendant is to be acquitted on the ground of insanity, unless the jury are satisfied, beyond a reasonable doubt that the killing was not produced by mental disease." Tbe defendant was sentenced, and filed this bill of exceptions. Will. C. Clarke., attorney-general, for the State; Hatch & Wigging for defendant. Ladd, J. (after deciding some minor questions). — The remaining and most important questions in the case arise upon tlie instructions given by tbe court to the jury, and the refusal to give instructions requested liy defendant's counsel. i i 6<; THE LEOAL TEST OF IXSAMTV. Stuto V. .lom-s When, as i:i this case, a person charjred with crime, admits the act, hut sets v^i tlie defence of insanity, tlie real nltimato ([nestion to be de- termined seems to l)e, wiietlier at tlie time of tlie act, he had the mental capacity to entertain a critniiial intent ; whether, in point of fact, he did entertain such intent. In solving that problem, as in all otlier cases, it is for the court to find the law, and for the jury to find the fact. The main question for our consideration here is, Avhat part of this difficult iiKiuiry is law, and what part fact? It will ])(^ readily agreed, as said by Sn.vw, C. J., in Cnm. v. Ror/pra,^ that if the reason and mental power of the accused are either sodeficienl that lie has no will, no conscience, or controlling mental pcjwer, or ift through the overwhelming violence of mental disease, his intellectua- power is, for the time, oUiterated, he is aot a responsible agent and, of course, is not punishable for acts which otherwise would be criminal. But experience and observation show that in most of the cases which come before the courts, where it is sulHcientl}'' apparent that disease has attacked the mind in some form and to some extent, it litis not thus wholly obliterated the will, the conscience, and the mental power, but has left its victim still in possession of some degree of ability in some or all these qualities. It may destroy, or it may only impair and becloud the whole mind ; or it may destroy or only impair the functions of one or more faculties of the mind. There seem to be cases where, as Euskine said in JLtdtteld's Ciise, reason is not driven from her seat, but where distraction sits down upon it along with her, holds her trembling upon it, and frightens her from her propriety. The term, " partial insanity," has been applied to such cases by writers and judges, from Lord Hale to Chief Justice Shaw, where, as has been said: " The mind may be clouded and weakened, but not incapable of remembering, reasoning, and judging; " and it is here that the difficulty of the subject begins, and that confusion, and contradiction in th ■ authorities make their appearance. " No one can say where twilight ends or begins, but there is ample distincliou between night and day." We are to inquire whether a universal test has been found wherewith to determine, in all cases, the line betweeen criminal accountability ami non-accounlabilitj' — between the region of crime and innocence — in those cases which lie neither wholly in the darkness of night nor the light of day. If such a test exists, or if one can be found, it is of tlio utmost importance that it be clearly defined and ])roadly laid down, sn that, when it is given to a jury, it may aid rather than confuse theiu. I ' 7 Melc. 500. IS TIIF.Ur, A I.KIJAI, TKST? r cases, it fact. Tlie as iVttficult V. Rogers,^ soilef'ieii'nl :)wer, or ift iutcllcctua- cut ami, of le crhninal. 3rtse3 which disease has thus wliolly but has left some or all [becloud the of one or lis EUSKINK but where bling upon bj' writer^^ s has been ncapable of le difftcully Lion in th • 10 twilight and day." herewith to ability and )cencc — i" 1 Car. A Kir. 129. 18 TIIKUK A I.KdAL TKST? ♦511 Tlif Iiirnilry III McNiiu'litcii's Cii!*' ng to his on I Ltmh- i!ust in tlie licli seems ?, namely, irisoncr on initU'd the the crime hould sup- ' as about T would be r of life as " If some 1, which h(! acre impor- are to be tended that id) unable from the the act he ;rd Denman in Iteg. V. Oxford. The memorable effort of the House of Lords, in 1843, to have the confusion and contlict of opinion which had arisen on this perplexing question all cleared away by one distinct and full avowal by the judges of what the law was and should be in relation to it, is too conspicuous In the history of the sul)ject to l)e passed without notice. It may be safely said that tl»c character of the judges, and the circumstances under which the questions in McXaghten's Cuse^ were propounded to tliem by the House of Lords, make it morally certain that if, in the nature of things, clear, categorical and consistent answers were possi- ble, such answers would have been given. In other words, that if a safe, practical, legal test exists, it would have been found by those very learned men, and declared to the world. Such a result would have brought order out of chaos, and saved future generations of lawyers and judges a vast amount of trouble in trying this kind of cases. But an examination of the answers given shows that they failed utterly to do any such thing ; ami it is not too much to say that, if they did not make the path to be pursued absolutely more uncertain and more dark, tlioy at best shed but little light upon its windings, and furnish no plain or safe clue to the labyrinth. In answer to the first question, all the judges, except Maule, say that " notwithstanding the party accused did the act complained of with a view, under the influences of insane delusion, of redressing or reveng- ing some supposed grievance or injurj', or of producing some public benefit, he is, nevertheless, punishable, according to the nature of the & Kir. 129. ' See Xol.e to Ueg. v. Uigguiojii, 1 tar. & Kir. 130. I 70 THE LEGAL TEST OF INSANITY. State V. Jones. crime commiited, if lie knew, at the time of committing sudi crime that he was acting contrary to law, by which is meant tlie law of the land." Here is an entirely new clement — knowledge that he was acting contrary t(» the law of the land ; and hereupon the inquiry arises: Is a man act- ing under a delusion of this sort, presumed to know the law of the land? The answer must be, yes ; for the judges say, further on : " The law is iidniinistered upon the principle that even/ one must be taken conclu- sively to know the law of the land, without proof that he does know it." Let this proposition be examined a moment. Knowledge that the act was contrary to the law of the land is liere given as a test ; ^hat is, such knowledge is assumed to be the measure of mental capacity sufficient to entertain a criminal intent. By what possible means, it may be asked, can that test or measure be applied, without first finding out whether the prisoner, in fact, knew w^liat the law of thf land was? How could a jury say whether a man knew, or did not know, that an act was con- trai-y to the law of the land, without first ascertaining whether he knew what that law was ? It was like sa^'ing that knowledge of some fact in science — as for example, that a certain quantity of arsenic taken into the stomach will produce death — shall be the test, and at the same time saying that It makes no difference whether the i)risoner ever heard of arsenic, or knows anything of its properties or not. Knowledge that the act is con- trary to law might be taken as a measure of capacity to commit crime, and so might knowledge O' any other specific thing that should be settled upon for that purpose ; and such a test would be consistent and comprehensible, whether it were right or not ; but when it is said that knowledge of a certain thing is the test, and then we are told in the next paragraph that it makes no difference whether the man ever heard of the thing or not, I confess that I am not able to see any opening for escape out of the maze into which we are led. Whether a jury would be more successful, must depend, I suppose, on their comparative intelligence. In connection with this rule, it is useful to bear in mind that Iladjield knew he was doing an illegal act, and did it for the avowed purpose of ])ringing upon himself the punishment which he knew was the legal con- sequence of the act. INIaule, J., holds that the general test of capacit}' to know right from wrong, in the abstract, is to be appllod in the case supposed by the first question, the same as in any other phase of mental unsoundness. In answer to the second and third questions, which r(>latc to tlio terms in which the matter should be left to the jury, the judges say, that '' to I erimo that the land." ig contrary a man act- f the land? The law is len conclu- ; know it." hat the act lat is, such ;ufncient to J be asked, lit whethei- How could ct was con- itr he knew 3e — as for tomach will ying that it arsenic, or act is con- mit crime, should be sistent and said that told in the over heard pening for ^iury would mparativo It Iladfiehl [purpose of legal con- Iright from jy the Tu-st Hess. I tho terms that " to M NAUIITKN S CASE. 71 The ^Uiswers of the Judges. ostahlish a defence on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring 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, he did not know he was doing what was wrong." Suppose, now, an insane man does an act which he knows to be con- trary to law because, from an insane delusion (if that term am<;unts to anything more than the single term insanity'), he believes it to be rigiit, notwithstanding the law ; that the law is wrong, or that the peculiar cir- cumstances of the case make it right for him to disregard it in this instance ; hosv are these two rules to be reconciled? It would seem to be plain that they are in hopeless conflict, and cannot both stand, Mal'le, J., says: " The questions necessarily to be submitti'd to 'the jury are those questions of fact which are raised on the record. In a criminal trial the question commonly is, whether the accused be guilty or not guilty ; but in order to assist the jury in coming to a right con- elusion o'l this necessary and ultimate question, it is usual and proper to submit such subordinate or intermediate questions as the course which the trial has taken may have made convenient to direct their attention to. What these questions are, and the manner of submitting them, is matter of discretion for the judge, a discretion to be guided hy a consideration of all the circumstances attending the inquiry. In performing this duty it is sometimes necessary or convenient to inform the jury as to the law," which, he repeats, is knowledge of right and rrong. lie also says there are no terms which the judge is, by law, required to use, on.^ they must not be inconsistent with the law that knowledge of right and wrong is the test. The answer to the fourth question introduces a doctrine which seems to me very remarkable, to say the least. The question was: " If a person, under an insane delusion as to existing facts, commits an offence, js he thereby excused? " To which the answer was as follows : " On the assumption that he labors under partial delusion only, and is 'lot in other respects insane, he must be considered in the same situa- tion, as to I'esponsibility, as if the facts with respect to which the delu sion exists were real. For example : If, under the influence of delusion,, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceaseil liad inflicted a serious injury to his ciiaracter or fortune, and he killed him in revenge for such supposed injury, he would be liable to punish- ment." 72 THE LEGAL TEST OF INSANITY Stiito V. Jones. The doctrine tlms promulgated as law has found its way into text books, and has, doubtless, been largely received as the enunciation of a s jund legal principle since that day. Yet it is probable that no ingenu- ous student of the law ever read it for the first time without being shocked b}' its ex(iuisite inhumanity. It, practically, holds a man, con- fessed to be insane, accountable for the exercise of the same reason, judgment, and controlling mental power that is required of a man in perfect mental healtli. It is, in effect, saying to the jury, the prisoner vyas mad when he committed the act, but he did not use sufficient reason in ills madness. He killed a man because, under an insane delusion, he falsely believed the man had done him a great wrong, which was giving rein to a motive of revenge, and the act is murder. If he had killed a man only because, under an insane delusion, he falsely believed the man would kill him if he did not do so, that would have been giving rein to an instinct of self-preservation, and would not be crime. It is true, in words, the judges attempt to guard against a consequence so shocking as that a man may be punished for an act which is purely the offspring and product of insanity, by introducing the qualifying phrase,- " and is not in other respects insane." That is, if insanity produces the false belief, which is the prime cause of the act, but goes no further, then the accused is to be judged according to the character of motives which are presumed to spring up out of that part of the mind which has not been reached or affected by the delusion or disease. This is very refined. It may be that mental disease sometimes takes a shape to meet the provisions of this ingenious formula ; or. if no such case has ever yet existed, it is, doubtless, within the scope of omnipotent power hereafter to strike with disease some human mind in such peculiar manner that the conditions will be fulfilled; and when that is done, when it is certainly known that such a case has arisen, the rule may be applied without pun- ishing a man for disease. That is, when we can certainly know that, although the false belief on which the t)risoner acted was the product of mental disease, still, that the mind was in no other way impaired or affected, and that the motive to tiie act did certainly take its rise in some portion of the mind that was yd in perfect health, the rule may be applied without any apparent wrong ; but it is a rule which can be safely applied in practice that we are seeking, and to say that an act which grows wholly out of an insane belief that some great wrong has been inflicted, is at the same time produced by a spirit of revenge springing from some portion or corner of the mind that has not been reached by the disease, is laying down a pathological and psychologicMl fact which no human intelligence can ever know to be true, and which, THE ENGLISH CASES CUITICISED. 73 The Ainoricau Cases Keviewutl. ' into text iation of a no ingenu- liout being man, con- ne reason, I a man in le prisoner ent reason elusion, he vas giving ad killed a Sieved the 3en giving ime. It is equence so purely the ng phrase,- y produces lo further, )f motives wliich has lis is very )e to meet s ever 3'et hereafter r that the certainly hout pun- now that, product ipaired or ts rise in rule may Ich can be liat an act rrong has revenge not been IhologicijI d which. if it were true, would not be law, but pure matter of fact. No such distinction ever can, or will, be drawn in practice; and the absurdity, as well as inhumanity, of the rule seems to me suthciently apparent without further comment. To form a correct estimate of the value of these answers, we have only to suppose that, at the end of a criminal trial, where the defence is insanity, they be read to the jur^' for their guidance in determining the question with which thtsy are charged. Tried by this practical test, it seems to mo tiiey utterly fail ; and the reason of the failure, as I think, is, that it was an attempt to lay down as law that which, from its very nature, is essentially matter of fact. It is a question of fact whether any universal test exists, and it is also a question of fact what the test is, if any there be. The efforts of text writers to extract a rule from the cases have not, in my judgment, been more successful.' It is worthy of notice, how- ever, that Mr. Chitty la3's down a rule from which is excluded all reference to knowledge of right or wrong or moral good and evil, thus : '• When there is only such partial derangement as leaves the party free to act or to forbear in tlie particular ca.se in question, or where he is guilty of the crime during a lucid interval, he will be equally liable to punishment with those wlio are perfectly sane. Where, however, the mind labors under such a delusion that though it discerns some objects clearly, it is totally deranged as to the objects of its attacks, the party will be entitled to be acquitted. "^ To my mind this is but another form of saying that where the act is the product of mental disease it is no crime, which was the instruction given in this case. If we leave the English rule, where it seems to be left by these author- ities, I think an examination of the American cases will not lead to any more satisfactory result. In Commomvealth v. Rofjers.-^ Shaw, C. J. instructed the jury that '■ a person is not responsil)le for any criminal act he may commit, if, by reason of mental inlirmity, he is incapable of distii\guishing between right and wrong in regard to the particular act, and of knowing that the act itself will subject him to punishment; or has no will, no con- science or controlling mental power ; or has not sufficient power of memory to recollect the relations in wliich he stands to others, and in which they stand to him : or has his reason, conscience and judgment so overwhelmed by the violence of disease as to act from an uncontrol- able impulse." > See 1 Russ. Cr. 13; Uoscoe's Cr. Ev. 944. • IChitty's Cr. Law, 723. > 7 Mete. BOO (1344). J- I T 74 THE LEGAL TEST OF INSANITY. State V. JoiU's. Here seem to be four distinct tests. Tlie first is substantially that given by Loi-d Dknman' in Jif^rf. v. Oxford, l)ut witlx one most impor- tant qualilicatif^n added, namely, knowledge that the act will subject liim to punishment. But how can it be said that such knowledge con- stitutes one of tiie links in a chain of conclusive evidence, that it is one fact in a chain of facts from which that degree of insanity which will excuse a person from crime is to be conclusively found? If that be so, thi'n certainly a legal quality, effect, or signifigance is given to it by its position in the chain, which no one would ever think it possessed wlicn standing alone. The desire for revenge may be so strong as to outweigh the fi'ar of a punishment which a man without any mental disease knows must follow his act. But the rule is, that, in addition to the knowledge of right and wrong in respect to the parti- cular act, the accused must have been capable of knowing that the act itself would subject him to punishment. It is, doubtless, true that ability to know that a certain act will be followed by punishment, furnishes evidence of the mental condition. So would knowledge of any other fact in law or science. But I can see no more reason for holding that such knowledge is any part of a legal test of capacity to commit Clime, than for holding that knowledge of the cause of an eclipse is entitled to the same effect. The second rule relates to a case where there can be no doubt, where the will, the conscience and the controlling mental powei' are all gone ; and the Anirth is substantially the same, where the reason, conscience and judgment are so overwhelmeil by the violence of disease, that he acts from uncontrollable imi);ilse. There can be no very appreciable legal distinction between a pv 'r.-.on who has no will, no conscience, oi' controlling mental power, and one whose reason, conscience, and judg- ment are so overwiielmed by the violence of disease as to act from an uncontrollable impulse. In both cases it is an act in which reason, conscience, judgment and will do not participate ; in a word, it is the product of mental disease. Power of memory sullicient to recollect the relations in which he stands to others and in which others stand to him, which is given as t.ie third test, seems to me ao more a legal criterion than power of memory to recollect any other fact which a healthy mind would be expected to remember ; and such power of memory or its lack would be a fact, like other facts, for the jury to weigh in judging whether he had the mental capacity to entertain a criminal intent. There is no doul»t but these instructions of the learned ...d eminent chief justice of Massachusetts have been largely followed in cases since I TKM" <»F INSANITY ii) Tlio American Cases Ki'vicwi-d. ;ially that ist iinpor- iU subject i?dge con- ,t it is one vhich Avill figant'C is iver tliink iiay be so n without e is, that, the parli- at the act true that nishraent, dge of any or holding to commit eclipse is ibt, where all gone ; onscience that he reliable cience, or and judg- frora an I reason, it is the [which ha len as t.ie ^emory to jected to it, like le mental eminent Ises since tricMl in tliis country ; but the course has been by no means uniform, as we sliiill see. Ill New York and Pennsylvania in the two leading cases of Freeman V. People,^ and Commoaicealth v. Monler,- capacity to distinguish rigiit from wrong was given as the naked test. But in neither of tliose Stales has the rule thus laid down been followed with uniformity. In the trial of Huntington for forgery, in New York City, in 18,'»n, Judge C.vi-uon said to tlie jury: "To constitute a complete defence, insanity, if par- tial, as monomania, must be such in degree as to wliolly deprive the accused of the guide of reason in Tpgard to the act with tvh'rh he is • harfjed, and of the knowledge that he is doing wrong in committing it." And the remarks of Eoaionds, J., in the earlier case of The People V. lUeim^^ are wholly at war with any such rule as that promulgated in Freeman y. People. Ilesaj's: " The moral as well as tiie intellectual faculties may be so .i.^ordered by the disease as to deprive the mind of its controlling and directing power ; that he must know the act to l)e wrong and punishable, and be able to compare and choose between doing it and not doing it." In Pennsylvania, in Commonwealth v. KnepJeji (1850), knowledge of right and wrong in regard to the particular act was given as the test; :uiil in Commonwealth v. Ha>^-keU, the judge charged that "the true test lios in the word j)ower. Has the defendant, in a criminal case, the power to distinguish right from wrong, and the power to adhere to the right and avoid the wrong? " It would pi'obably not be far out of the way to say that the number of American cases where knowledge of right and wrong in the abstract, and knowledge of the nature and quality of the act — that it was wrong — iiave been given as the test, is about equal, with a tendency of lute years to tlie latter form ; while it will appear that, in almost every case wliore any rule has been given on tlie subject, it has been modified and explained to meet the facts of the particular case, or to carry out the personal views of the judge on the matter of insanity. But there are not wanting cases where all tests have been discarded. In State v. Felter.,^ Dn.LON, C. J., says: "The jury, in substance, should be told that if tlie defendant's act in taking the life of his wife was caused by nuiital (hscase or unsoundness, wliich dethroned liis reason and judgment with respect to that act, which destro^'ed his power rationally to comprehend the nature and consequences of that act, and which, overpowering his will, irresistibly forced him to its commission, then he is not amenable f ' 4 Denio, "J. 5 4 narr. 267. » 1 Edm. Sel. Cas. 13. * 25 Iowa, 67. 7(3 THE LKOAL TKST OF INSANITV. State V. Jones. to legal punishment. But if the jury believed, from all the evidence and circumstances, that the defendant was in possession of a rational intellect and sound mind, and allowed his passion to escape control, then, though passion, may for the time being, have driven reason from her seat and usurped it, and have urged the defendant, with a force at the moment irresistible, to desperate acts, he cannot claim for such acts the protection of insanity." And in Stercns v. Sfate of Indiana ^^ which was an indictment for murder, and the defence insanity, an instruction to the jury that, if they believed the defendant knew the difference between riglit and wrong in respect to the act in question, if he was conscious that such act was one wliich lie ouglit not to do, he was responsible, was held erronous. In the course of his opinion in that case, GiiKGOKY, J., speaking of the cliarge in Commonwealth v. Rogers^ said: "It is by no means clear, and we think it is not entitled to the weight usually awarded it." Very much to tlie same effect was State v. Spencer.^ Hornblower, C. J., said: " In my judgment, the true question to be put to the jury is, whether the prisoner was insane at the time of committing tlie act ; and in answer to that question there is little danger of a jury's giving a negative answer, and convicting a prisoner who is proved to be insane on the subject-matter relating to or connected with the criminal act, or proved to be so far or so generally deranged as to render it difficult or almost impossil)le to discriminate between his sane and insane acts." And also a case said to have been tried in York County, Maine, in 1G3C, where the court charged the jury that if they were satisfied the prisoner was not of a sound memory and discretion at the time of committinsi the act, they were bound to return a verdict of acquittal.*^ To the same effect also is our own cases of Prescott and Corey, referred to by the attorney-general in his brief. Professor Greenleaf adopts the charge of Chief Justice Shaw, in Roger's Case, witliout any attem[)t at modification or explanation, as covering the whole subject, so far as criminal responsil)llity is con- cerned.'* Mr. Bishop undertakes to give the forms in which courts liave put the question of insanity to the jury in most of the modern cases."' But I have not been able to find a case, ancient or modern, where tlie judge did actually give the question of insanity to the jury in just tlie terms of Mr. Bishop's form ; and he saj's, speaking of his rule : " This > 31 Ind. 485. » 1 Z*br. 196. * Ray. tied. Jur. MS., sect. 42. * 2 Greenl. on Ev., sect. 3Ti ^ 1 Bish. Cr. Law, 475. MH. HISIIOP S KULE. 77 The Difficulty of the Subject. le evidence f a rational ipe control, •eason from 1 a force at )r such acts nsanit}', an it knew the question, if do, lie was lion in that 1 V. Rogers, itled to the ORNBLOWER, ; to the jury ing the act ; uiy's giving to be insane ainal act, or difficult or isane acts." ne, in 1G3G, ;he prisoner committing o the same to by the SiiAW, in lanation, as jity is con- 3ourts have lern cases, •'i where the |in just the lie: "This form of stating the question of insanity to the jury is well in cases where it is admitted that the mental disease or imperfection extends only to the intellectual powers, and the party has full control of his actions. How numerous, comparatively, these cases are is matter of science and fact nowhere to be discussed." ' In regard to the difficulties of the subject, the same author says : "The labors of writers on insanity have been exhausted in attempts to find some test of ready application to determine when a person is to be deemed insane, and when not, in reference to his responsibility for crime. And judges, less informed on this subject than on most other subjects of legal science, have struggled under the inherent embarrass- ments of the question itself, under the influence of erroneous notions in the community, and under the failures of counsel and witnesses in par- ticular cases to present the real points of inquiry. The result has been, that instructions given in reference to particular facts appearing in the oases before them have seemed, to casual observers, to be very discord- ant, while to scientific inquirers after the facts of insanity, they have seemed very absurd " '^ And in a note, "It seems to me there has been too much attempt to do what in its nature is impossible, and too little attempt to do what, is possible regarding the matter. It is not, I submit, possible, in the nature of things, that the court should find an exact and literal rule, which may be put into the hand of a juiy- inan, wherewith to measure the mind, and determine whether it is criminally responsible or not, for its act." It is to be remarked that the same tiling, in substance, was admitted lij'^ the judges in McXaghtea's Case, Tindal, C. J., giving the opinion of the majorit}', said: "We have foreborne entering into any particular discussions upon the questions, from the extreme difficulty of applying those answers to cases in which the facts are not brought judicially- be- fore us. The facts of each particular case must, of necessity, present themselves with endless variety and with every shade of difference in each case ; and we deem it at once impracticable, and dangerous if it were practicable, to attempt to make minute a[)plications of the princi- l)les involved in the answers to your lordships' questions." Maulk, J., speaking for himself, observed: " I feel great difficulty in answering llie questions put by your lordships on this occasion. First, because they do not appear to rise out of, and are not put in reference to a par- ticular case, or for a particular purpose, which might explain or limit the generality of their terms, so that full answers to them ought to be 1 Ilish. t'r. Law, sect. 478. 1 Bish. Cr. Law, tect. 474. 78 THE LEGAL TEST OF INSANITY State V. Jouus. applicable to every possible state of facts not inconsistent witli those assumi'tl in the questions." It is entirely obvious that a court of law luulertaking to lay down an abstract general proposition, which may be given to tlie jury in all cases, by which the}- are to determine whether the prisoner had capac- ity to entertain a criminal intent, stands in exactly the same position as that occupied by the English judges in attempting to answer tho ques- tions propounded to them by the House of Lords in this case; and whenever such an attempt is made, I thinlc it must always be attended with failure, because it is an attempt to find what does not exist, namely, a rule of law wherewith to solve a question of fact. This is the only conclusion I desire to draw from the cases and text- writers referred to. It is clear to me that judges have adapted their lan- guage to tlie facts of the particular case before them, and that when anything is said about knowledge of right and wrong, or knowledge of the quality of the act, or any other legal test, it has been, and will in- evitably continue to be, qualified and explained in such a way, to meet the evidence upon which the jury are to pass, that its character, as a rule, entirely disappears. No one but tlie Creator of all things can look in upon the chaos of a disordered mind, and determine with certainty whether its powers are so much prostrated, enfeebled, or deranged, that the unhappy sufferer has ceased to be an accountable being. Still, the court and jury must de- termine that question, approximately, as best tliey can in each individual case ; and it makes no difference ,,so far as I can see, with the difficulty of the subject, whether Lord Buoicjiiam's view, that a distinction is to be made between the moral accountability of a man to his Maker, and his accountability to human tribunals, be accepted or not. With this duty to perform, and this responsibility upon them, courts naturally and properly turn to men of science, such as have had large experience in the care and treatment of the insane, for aid; and the questions allowed to be put to experts and answered by them, both in England and this country, show, that what is laid down as kao in theory, is al- most universally treated as fact in practice. At the trial where insanity is set up as a defence, two questions are presented: First. Had the prisoner a mental disease? S<'co))d. If ho had, was the disease of such a character, or was it so far tleveloped, or had it so far subjugated the power of the mind, as to take away the capacity to form or entertain a criminal intent? Tlie first is so purely a question of fact, that no one would think of disputing it any sooner than he would dispute that it was a auestion of fact, whether a man has A LEGAL TFST COWKXIKNT. 79 But not FoniuU'd on Ki'tison. nth those ' down an iry in all lacl capac- ositlon as tho ques- ;asc ; and attended b, namely, and text- tlieir lan- Iiat when wledge of id will in- ^ to meet iter, us a laos of a ers are so fferer has must de- idividual ifficulty ion is to ver, and Vith this at 11 rally lerience •lestions England y, is al- iens are d. If he oped, or way the purely V sooner man has consumption or not. It is in settling the second that all the difficulty arises. The instructions asked for in this case go upon the ground that this is a mixed question of law and fact; that where there is delusion, there can be no criminal intent; and that where there is capacity to know right from wrong in reference to the particular act, there is capacity to commit crime. It is true, the sixth request does not present the mat- ter in just this form; but if knowledge of right and wrong, as to the act, is to be considered a legal test of criminal accountal)ility, it must follow that those who have such knowledge are accountable, as well as that those who have it not arc not accountable. And this court is now called on, as a court of law, to decide whether cither of these tests shall be adopted in this State, and if so, which. It would doubtless be convenient to adopt some such test. It would, to some extent, save the trouble of trying each case, as it arises on its own special and peculiar facts ; at any rate it would narrow the range of investigation to a search for the facts constituting the test adopted. But, in cases of this sort, the argument of convenience is not to Jbe ad- mitted. No formal rule can be applied in settling questions which have relation to liberty and life, merely because it will lessen the labor of the court or jury. Nor ought such a rule to be adopted upon the authority of cases, unless those cases show, beyond a doubt, not only its exi^t• ence, but that it is founded in reason and fundamental truth. Expres- sions of even the most eminent juatients capable of distinguishing between right and wrong, knowing well enough how to appreciate the nature and legal conse(iuences of tlicir acts, acknowledging tiie sanctions of reli- gion, and never acting from irresistible impulse, but deliberateh'' and shrewdly." ' If Ave were at liberty to weigh and consider eridenw upon the ques- tion, it is clear that such testimony must outweigh all the convenient formulas and arbitrary dogmas laid down by the lawyers and judges from the time of Lord IIai.k to the present, simply for the reason that Dr. Ray is qualified by study and observation to give an opinion, -while lawyers and judges are not. But we do not consider evidence upon this point at all. Whether there is any universal test is as clearly a pure matter of fact, as is the (piestion what that test may be. A strong argument in favor of the instructions given in this case, and of conso(picnce against proceeding further to give the specific in- structions retjuestcd, is found, both upon principle and authority, in the course of decisions wliere testamentary capacity has been before the courts. In the well known leading case of Dew v. Clarke,- decided in 1826, Sir John Niciioll gave his opinion thus: "The true criterion, the true test, of the absence or presence of insanity I take to be the ab- sence or presence of what, used in a certain sense of it, is compre- hended in a single terra, namely, delusion. Whenever the patient once conceives something extravagant to exist, wliich has still no existence but in his own heated imagination ; and whenever, at the same time, having once so conceived, he is incapable of being, or at least of being^ permanently, reasoned out of that conception, such patient is said to be under a delusion, in a peculiar, half-technical sense of the term ; and the absence or presence of delusion, so understood, forms, in my judg- ment, the true and only test or criterion of absent or present insanity. In short, I look upon delusion, in this sense of it, and insanity, to be almost, if not altogether, convertible terms ; so that a patient, under a ' Ray'B Med. Jar., Ins. eect, 43. * 8 Addami, 7S. 89 THE LKUAL TKST OF INSANITY. Stall- V. .Ii)iu-«. Uelusioii, so understood, on any subji'ct or subjocts, in any degree, is, for tliat reason, essentially mad or insane on such subject or subjects, in that degree." After a very extended review of the evidence in the case, he draws this conclusion: " The will |)ropounded in this cause, a will virtually disinheriting the daughter, being t!u' direct, unqualilied offspring of that morbid delusion — proved, 1 may now say without any qualification or restriction, to have been ever present to the mind of the deceased as to the character and conduct of his daughter — being, if I may so term it, the very creature of that morbid delusion, put into act and energy, — I, at least, can arrive at no other conclusion than that the deceased was insane at the time of his nuiking the will propounded in this cause; and consequently that the will is ludl and void in hiw." In view of this explicit avowal, it may be considered somewhat remarkable that this case should have been regarded as an authority for anything more than this — that delusion is the test of testamentary capacity, so far that a disposition of property by a will, which is shown to have been the direct, unqualified offspring of morbid delusion cannot be upheld. If a morbid delusion produced the act, then the act is not valid. But, whether through a misconception of this case, or by adopt- ing the theory of S(jme writtns, who maintain that the mind, though it has varied fticulties, is one and indivisible, so that if it be disordered in any one of these faculties, it cannot be said to be sound, though its other faculties and functions remain undisturbed, a doctrine appears to have gained some ciirrencj' in liUgland to the effect that delusion on any matter, however remote from the subject of the will, and however dis- connected from it, is conclusive evidence of unsoundness of mind, and, therefore, altogether destroys testamentar\' capacity.' This idea was attacked iuiil completely overthrown in the case of Banks \. Goo(lfeUoio,~ d.-cuhnl i July, 1S70. In that case it appeared that a testator labored unci- r l,vvo fixed delusions: one, that he was pur- sued by spirits ; the othei, that a man, long since dead, came to molest him, neither delusion inlluencing or calculated to infiuencc the particu- lar testamentary disposition made by liim. Buktt, J., who tried tlie case, left it to the jury to say whether, at the time of making the will, the testator was capable of such knowledge and appreciation of facts, and was so far master of his intentions and free from delusions as would enable him to have a will of his own in the dispositiori of his property, and act upon it. ' Waring v. Waring, 6 Moore P. C. Cas. :U1 ; iinil see also Smith v. Tebbitt, L. U. 1 F. & D. a98. « L. R. 5 Q. B, 549. INSANITY AM) TKSTAMKNTAKY CAI'Ai ITV 98 ('iii'kl)iii'n, ('. .1., in llaiikH r. (inodl'iliiiw , ▼ree, '\^, Libjccls, ;e in llic cause, a liout any kI of the ing, if I into act that the unded in ,w." omewhat lority for amentary is shown )n cannot act is not by adopt- [thougli it idorcd in lough its ipears to )n on any cevor dis- ind, and, case of !ipi)earod was pur- to molest pari ic 11- Itried tlio I the will, |of facts, lisions as of his It will 1)0 observed, that if deltisinii were to be regarded sis si universal legal test, tlii-re was no ([uestion here to be sul)initted to the jury ; a verdict should have been ordi'red against the will for the existence of de- lusions was not disputed. Hnl the instructions were held correct, and Lord Chief .Iiistice C'<»ckhii{\, iu the course of his elaborate opinion, says: " Kvcrv one must be conscious that thi; faculties and functions of the mind are various and distinct, as jire the powers and functions of the physical organizations. Tiie instincts, tiie affections, tlic passions, the mcjral sense, perceptions, thougiit, reason, inuigination, memory, arc so many distinct faculties or functions of the mind. The pathology of mental disease, and the experience of insanity in its various forms teach us that, wliih^ on the one hand all the faculties, moral and intel- lectual, may be involved in one common ruin, iis in tlie case of a raving inanai(!, one or more only of these faculties or functions may be disor- dered, while tiie rest are left unimpaired and undisturbed, tliat while the mind ma}' be overpowered by delusions which utterly demoralize and unlit it for the perception of the true nature of surrounding things, or for the discliarge of the common obligations of life, there often are, on the other liand, delusions which, though the offsjiring of mental disease, leave tin individual in all other respects rational, and capable of transacting tlie ordinaiy affairs, and fulfilling the duties and obligations incidental to tlie various relations of life. ' ' The exact question presented to the court in this case, namely, whether unsoundness, not operating on the mind of the testator in regard to the particular testamentary disposition, will be sutlicient to deprive liim of the power of disi)osing of his property by will, was said to be a now question, not before presented for judicial decision in England. l)Ut iu Boardman v. iroot/wtctji,' decided four 3-eais earlier in this State, the court below, liAUTLKTT, J., charged the jury ''that the mere fact of the possession of a delusion may not be sullicient to render a l»ersou utterly incapable of making a valid will; that a person of sulli- cient mental capacity, thougli uiuU^r a delusion, may make a valid will ; if the will is in no way the offspring of the delusion, it is unaffected l)y it." This instruction was sustained ; and I am unable to find anything in the opinion of the court that conflicts with the doctrine of Biotks v. (Jooilfdlow. Saiigknt, J., in the course of his o{)iuion says: '• Dclu- siun, in the technical sense, as explained b}' Sir Jons Nkhoi.i., is the legal test of the presence of active insanity ; and if the vill is the off- s^pring of this delusion, it should be set aside." It is sutliciently obvious that neither Sir John Nicholi, nor Judjje Sakgknt would t jld that a ' 47 N. H. 120. 84 THE LEGAL TEST OF INSANITY. State V. Jones. man avIio labors under a delusion that his lej^sare made of glass, or that he is cliarged with controllin<5 the motions of the planetary system, but is in otlier respects sane, would, therefore, be incapable of making a valid Avill. It is not neccoo., 'V here to express any assent to or dissent from the manner in which the ."^ubject is treated in Dew v. Clark and Boardman v. Woodman. AVhethcr the inquiry is advanced by saying that the act to be invalid, must be the offspring of delusion, instead of saying that it must be the offspring of mental disease, is a matter which does not concern this argument.! If the doctrines of Banks v. GGodfelloio and Boardman v. Woodman bo applied in the case under consideration, it would clearly have been error to give the instruction as to delusion requested by de- fendant's counsel ; because delusion cannot be a legal test, if while delu- sions exist in the mind, an act no way connected with such delusions, nor produced by them, is to be held valid. How far the analogy holds between testamentary capacity and capac- ity to commit crime, it is not necessary to inquire, because delusion has never, so far as I can find, been regarded as a test in criminal cases, unless HudjiekVs Case is to be excepted ; and all the argument requires is, to show that the rule, which it has been thought may be drawn from the authorities in civil cases, has no existence even there, in the broad and universal terms in which the court was requested to apply it on the trial of this case. Fortunately, we are not embarrassed by any decisions, or, so far as I know, any dicta or expressions of single judges in this State at variance with the bi'oad philosophical doctrine laid down by the judges who tried this case. Indeed, there seems to have been a strong leaning hereto- fore in the same general direction, as is shown by the quotations from charges of two of our late chief justices, Richakdson and Bell, in the brief of the attorney-general for the State. In view of these considerations, we are led to the conclusion that the instruction given to the jury in this case, that " if the defendant killeu his wife in a manner that would be criminal and unlawful if the defend- ant were sane, the verdict should be ' not guilty by reason of insanity,' if the killing was the offspring or product of mental disease in the defendant," was right; that it fully covers the only general, universal element of law involved in the inquiry ; and, therefore, that any further step in the direction indicated by the requests would have been an in- terference with the province of the jury, and the enunciation of a propo- sition which, in its essence, is not law, and which could not in any view 1 See remarks of Lord Penzance in Smith v. Tebbitt, L. R. 5 Q. B. 549. EXISTENCE OF MENTAL DISEASE. 85 A Question of Fact,. or that, ;m, but aking a ■om tbe Iman v. ct to b(; must be ern this Iman v. clearly \ by de- ile delu- ilusions, '} capac- sion has al eases, requires wn from e broad it on the far as I 'ariance I ho tried hereto- us from ,, in the that the |t killeu Idefend- |sanity,' in the Iniversal I further an iii- I)ropo- kiy view safel>' be given to the jury as a rule for their guidance, because, for aught we can know, it might have been fsilse in fact. This would SL'em to dispose of the whole ca^e. All the other instruc- tions given are onl}' the direct logical conse(iuenceof this principle. Whether the defendant had a mental disease, as before remarked, seems to be as much a question of fact as whether he had a bodily disease ; and whether the killing of his wife was the prod'iot of that disease, was also as clearly a matter of fact as whether tliirst and a quickened pulse are the product of fever. That it is a dilliciilt question does not change the matter at all. The difficulty is intrinsic, and must bo met from whatever direction it may be approached. Enough has already he( n said as to the use of symptoms, phases, or manifestations of the disease as legal tests of capacity to entertain a criminal intent. They are all clearly matters of evidence, to be weighed by the jury upon the question whether the act was the offspring of insanity ; if it was, a criminal intent did not produce it; if it was not, a criminal intent did produce it, and it was a crime. The instructions as to insane impulse seem to be quite correct, and entirely within the same principle. If the defendant had an insane im- pulse to kill his wife, which he could not control, then mental disease produced the act. If he could have controlled it, then his will must have assented to the act, and it was not caused by disease, but by the concurrence of his will, and was therefore crime. These instructions have now been twice given to the jury in capital cases in this State, first by Chief Justice Peuley, in State v. Pike, and now again by Judge Doe in the case before us. In State v. Pike no exceptions were taken to this part of the charge, and the questions here raised were not before the whole court for judicial determination, al- though they were printed in the case as transferred, and no objection to their forni is understood to have been made. But a question was passed ui^on in that case, which, carried to its logical results, goes far toward settling most of the questions raised upon the instructions here. It was claimed that the defendant was irre- spon'^Ible by reason of a species of insanity called dipsomania. The court instructed the jury that " whether there is such a mental disease as dipsoi^iania, and whether the defendant had that disease, and whether the killing of Brown was the product of such disease, were questions of fact for the jury." These instructions were specially excepted to by the defendant, and were held correct. This would seem to be en- tirel}' inconsistent with the idea that either delusion or knowledge of right and wrong is, as matter of law, a test of criminal capacity ; and [ 86 THE LEGAL TEST OF INSANITY. State V. Jones. would also seem to be about equivalent to holding, in general tcrmp, that it was for tiie jury to say whether the killing was the product of mental disease, and return their verdict of " guilty " or •' not guilty by reason of insanit}'," as they found that fact to be. We should be slow to establish any doctrine on this important subject which we could see would be likely to result in the escape of malefac- tors from punishment, or afford encouragement to a fictitious defence of insanity ; and no considerations of convenience or ease in the admin- istration of the law, as before observed, should be allowed to weigh at all against adhering to any doctrine or any course of practice that rests upon sound reason, or that appears to be necessary for the attainment of right results, whether such doctrine or practices is supported by uni- form authority or not. Still it is no objection to the course of the judges who tried this case, and who tried Pike's Case, that it relieves the subject of some of its most formidable difficulties so far as the court is concerned, and at the same time furnishes at least one clear and explicit direction which the jury can understand. No untried or doubtful theory is adopted. The instruction given was always law, and always must be law, while justice is administered upon principles at all consonant with the calls of civilization and humanitj". The only objection is, that the court did not go further, and undertake to explore a region where all is doubt, imcertainty and confusion upon the authoi'ities, and where, upon principle, they had no right to go at all ; that they did not undertake to lay down a rule where, if we could allow ourselves to investigate the fact, we should probably find tiicre is and can be no rule, nor to enunciate as law a pure matter of fact which can only be absolutely known to the Almighty. 1 may add that it confirms me in the belief that we are right, or at least have taken a step in the right direction, to know that the view em- bodied in this charge meets the approval of men who, from great ex- perience in the treatment of the insane, as well as careful and long study of the phenomena of mental disease, are infinitely better qualified to judge in the matter than any court or lawyer can be.' The satisfaction with which the charge to the jury in State v. Pike is understood to have been received by the most enlightened members of the medical profession, proves to my mind not that we have thrown down old landmarks to adopt any theory based on a partial, imperfect or visionary view of the subject, but that, in a matter where we must inevitably rely to a great extent upon the facts of science, we have con- sented to receive those facts as developec' and ascertained by the re- > Sou Uoy's Med. Jur. Iiim. (5lh vd.) f^ccl. 44. NO LEGAL TIIST. 87 Stcvnis V. State searches and observations of our own day, instead of adhering blindly to dogmas which were accepted as facts of science and erroneousl}' promulgated as principles of law fifty or a hundred j'ears ago. The last instruction, that the defendant was to be acquitted on the ground of insanity, unless the jury were satisfied, beyond a reasonable doubt, that the killing was not produced by mental disease, was in ac- cordance with State v. Bartlett, ' and was correct. Exceptions overruled. NO TEST — BURDKN OF PROOF. Stkvexs V. State. [;n Ind. 4S5.] In the Supreme Court of liKUana, November Term, 1869. Hon. John T. Elliott, . " Jamks S. Fkazkk, '« RoBKItT C. GllEGORY, ( '^"<^6'«S- " CiiAKLES A. Ray, j L No Test— Insane Impulse* — H .in insane impuUc leads to the commieBion of a criiiio, the aclor is not reisponsible. An instruction that " if the jury believe that the defendant knew the difference between right and wrong in respect to the art in (piep- tinn ; if he was conscious that such act was one which he ought nut to do," he was res|ioDBibIe for his act, is erroneous. 2. Burden of Proof.— Upon an indictment for murder where the defence is insanity, the jury should ac(|uit if tlicy entertain a reasonable doubt as to the soundness of mind of the prisoner at the time of the homicide, although they believe lie had judgment and rea- son suflicient to discriminate between right and wrong in the ordinary affairs of life He is as much entitled to the benefit of u doubt on that as any otiier material fact in the case. Pike is ibers of thrown perfect e must AC con- the re- This was an appeal from the Vigo Criminal Co-art. The appellant was indicted for murder in the first degree, and convicted. The defence was insanity. At the instance of the prosecuting attorney, the court instructed the jury that " in order to excuse a man from killing another, on the ground of insanity, it must appear to the satisfaction of the jury that he was either absolutely insane at the time of the act, so that he did not know the difference between right or wrong, or that he was laboring under some form of monomania by which he was irresistibly 43 N. H. 224. 88 THE LEGAL TEST Oi INS^AXITY. Stevens v. Statu. impelled by an uncontrollable will to the per|)etration of the act ; biit such monomania must be in relation to the act of killin'j,for if it is mo- nomania upon some other subject, it does not excuse a killing. If a man becomes a monomaniac on account of the morl)id state of Ins domestic affections, or if he becomes so on account of the morbid state of his religious feelings, in either case his moral sense is only affected by the cause of his disease ; that is he is only excused from the commission of crime so far as he acts under the irresistible influence of the particular monomania under which he is laboring; and if, aHhoiajh laboring tinder either of said forms of monomania, heshall kill a man loith premeditation, m (.'nticixtl. under the statute of this State, a necessary injiredient of the offence tliat the i)er.s(ju charged shall, at the time of the commission of the offence, be of sound mind, and if the evidence shows that the pris- oner, at the time of the commission of the act, was not of such sound mind, although the jury may believe he had judgment and reason sufficient to discriminate between right and wrong in the ordinary' affairs of life even at the time of the connnission of tlie offence, they cannot find him guilty." The court refused to give the instruction, as asked, but, over the objection of the defendant, gave it witli this quali- fication: "If the jury, believe from the evidence, that the defendant knew the difference between rigiit and wrong in respect to the act in question ; if he was conscious that such act was one which he ought not to do ; and if that act, at the same lime, was contrary to the law of the State, then he is responsible for his act." There was a motion for a new trial on the ground that the parts of charge in italics were erroneous, and that the qualification of the instruc- tions asked by the defendant was incorrect. The new trial was refused, and defendant appealed to this court. /. C. Baird, C. Cruft, W. E. McLean, and J. N. Pierce, for appellant; R. W. Thompson, and D. E. Williamson, attorney-general for the State. The opinion of the court was delivered by Gregory, J. — It is undoubtedly tlie law as charged by the court below, that if the defendant was moved to the act by an insane impulse con- trolling his will and his judgment, then he was not guilty of the crime charged. And if the defendant was a monomaniac on any subject, it was wholly immaterial upon what subject, so that the insane impulse led to the commission of the act. It is claimed that the instructions as to this point given by the court, at the instance of tlie State's attorney, were calculated to mislead the jury : and two members of this court are of that opinion. It is clear that tlie instructions might have been put in a better form, but I have no doubt that they are correct law, as thej' were intended by the court to be understood, and particularly as explained by the court in the in- structions asked by the defendant. But if this case turned upon that question, I should hesitate to determine that a jury might not have been mislead by instructions, about the meaning of which there is a difference of opinion among the members of this court. It is claimed that the court erred in the instruction in reference to simulating insanity after the commission of the act, in assuming tha the defendant had given no previous indication of insanity. There was some evidence of previous indication of insanity, but we do not under- T 90 THK LKOAL TKST f)F INSANITY Stevens v. State stand the instruction as making any such assumption The instruction may not have been applicable to the case made, and may have misled the jury. But we are clear that the court below erred in giving the qualification to the instruction asked by the defendant. The statute provides that "if any person of sound mind shall pur- posely and with premeditated malice kill any human being, such person shall be deemed guilty of murder in the first degree." ' The Legislature have defined the meaning of the expression " person of unsound mind." It is provided tliat this phrase "•' shall be taken to mean any idiot non compos, lunatic, monomaniac, or distracted \x , "2 1 > f ■ jat difficulty has been, in cases of partial insanitj', to fix the Stanaaid of criminal responsibility. Tlie leading case in this country [fl Commonu-ealth v. Rogers.^ Chief Justice Siiaw, in his charge to the jr. in;, case, said: " Tiie diflSculty lies between these extremes in the case of partial insanity, where the mind may be clouded and weakened, but not incapable of remembering, reasoning and judging, or so perverted by insane delusions as to act under false impressions and influences. In these cases, the rule of the law, as we understand it, is this : A man is not to be excused from responsibility, if he has capacity and reason suflBcient to enable him to distinguish between right and wrong as to the particular act he is then doing; a knowledge and consciousness that the act he is then doing is wrong and criminal, and will subject him to punishment. In order to be responsible, he must have suflficient power of memory to recollect the relation in which he stands to others, and in which otiiers stand to him ; that the act ho is doing is contrary to the plain dictates of right and justice, injurious to others, and a violation of the dictates of duty. On the contrary, al- though he maj' be laboring under partial insanity, if he still understands the nature and character of his act and its consequences ; if he has a knowledge that it is wrong and criminal, and a mental power sufflcieiit to apply that knoidedge to his own case, and to know that if he does the act he will do wrong and receive punishment, such partial insanity is not suflftcicnt to exempt him from responsibility for criminal acts." As we understand this charge, it docs not go the length of fixing the test " of a knowledge of right and wrong." It recognizes the neces- sity of a mental power sufirtcient to apply that knowledge, and act ac- cordingly. Tl:/" 'i.arge is by no means clear, and we think that it is not entitled to the weight usually awarded to it. ' 2G. A H., p. 435, BCCt. 2. 2 2 G & IT., pp 57:?, 574, RfCt. 1. ' 7 Mete. 500. NO LEGAL TEST. 91 Burden of Proof. instruction liave misled malification d sliall pur- uich person 3n " person be taken to distracted y, to fix tlie ;liis countrj- 3 charge to se extremes ;lou(lcd and [id judging, impressions understand V, if be has tween right wlcdge and iminal, and le, he must n which he le act he is njurious to ntrary, al- nderstands if he has a r sitfficieiit e does the insanity is cts." fixing the I the neces- Lnd act ac- iat it is not The law was much better put in Commonwealth v. //«,sA(V/,' tlius: "Tliatthe true test lies in the word power. Has the defendant in a criminal ease the power to distinguish rigiit from wrong, and the power to adhere to the riglit and avoid the wrong? Has the defendant, in addition to the capacities mentioned, the power to govern his mind, his body, and his estate? " Indeed, there are very strong reasons for holding tliat tlie cnarge of Chief Justice Peuley, in State v. Pike,- is tlie true law on the sub- ject. He instructed the jury "that the verdict should be not guilty, by reason of insanity, if the killing was the offspring or product of mental disease in the defendant; that neither delusion nor kiiowledge of right and wrong, nor design or cunning in planning and executing the killing and escaping or avoiding detection, nor ability to recognize ac- quaintances, or to labor or transact business or manage affairs, is, as a matter of law, a test of mental disease but are purely matters of fact to lie determined by the jury." The argument that leads strongly to tliis conclusion is found in the able dissenting opinion of Judge Doe, in Boardman v. Woodman.'^ It is not necessary for us to go this length in the case in judgment. In a criminal case the jury must be satisfied beyond a reasonable doubt of the defendant's mental capacity to commit tlie crime charged. This is but an application of the general principle that the criminal in- tent must be proved as well as the act ; that without a capable mind such intent cannot exist, the very element of crime being wanting. Such terms as " criminal intent," " vicious will," and " use of reason," are used in a very broad and general sense, including the idea that the mind must be in such a reasonable condition as to be capable of giving a guilty character to the act. The will does not join with the act, and there is no guilt when the act is directed or performed by a defective or vitiatod understanding. So far as a person acts under the influence of mental disease he is not accountable. We wish ill this case to be understood as simply holding that the qualification of the instruction asked by the defendant was not law, and for tills reason the court below ought to have granted a new trial. Judgment reversed, cause remanded, with directions to grant a new trial, and for further proceedings. Elliott, J., was alisent. ^ Philadelphia Legal Intelligencer fur Dec. 4,18WJ;4 .\ni. F.. R. 240. ' 4a N. 31)9. See American Law Review for Januaiy,1870, pp. 245, 246. 3 47N.H.. 120. 500. 92 TUK LKOAL TKST OF INSANITY. State V. Felli'iv insank iml'ulsk — i'uior insanttv — in'samtv of fattier — evt- denck of experts. State v. Feltek. [25 Iowa, C7.] In the Supreme Court of Iowa, Jane Term, 1868. Hon. Jon.v F. DiM.ox, Chipf Justice. " CUKSTKU C. Coi.K, 1 «' GKomiK S. Wi!i(;iiT, \ Judges. " JO.SKl'H M. liKCK, j 1. Test of Insanity — Insane Impulse. —If a person commit a homicide, knowing it to bo wrong, but driven to it by un iincontrolliiblo and irresistible impulse arising not. from natural passion, but from an insane condition of the mind, he is not criminally responsible. 2. Evidence — Prior Insanity. — Evidence that the prisoner had been insane at a period )irior to the date of the commission of the act is admissible. • 3. Insanity of Prisoner's Father.- On the defence of insanity in the prisoner, evi dcn(!e tlmt his fatlicr was subject to fits of insanity, is admissible. 4. Medical Experts. — Medical witnesses who have no personal knowledge of the prisoner cannot be allowed to give an opinion formed from the testimony in the case and his conduct on the trial, as to bis sanity at the time of the act. Appeal from Benton District Court. The defendant was indicted for the murder of his wife ; pleaded not guilt}'-, was tried, found guilty of murder in the second degree, and sentenced to imprisonment in the penitentiary for life. From this judg- ment he appealed. J. H. Murj)hj/ & Brother, I. M. Preston & Son, for appellant. Henry O'Connor, Attoi'ney-General for the State. Dillon, C. J. (Omitttng rulings on other matter.) The next error assigned relates to the action of the court in exclud- ing from the jury certain portions of the aflidavlt made by the defend- ant for a continuance. Upon the afWdavit being made, the district attorney, according to the record, "to avoid a continuance admitted that the witnesses named in said aftidavit would swear to the facts therein stated as facts expected to be proven by them ; but, by agree- ment of parties, the defendant being present and assenting thereto, the State, on the trial, or before, was to have the right to object to the whole or any part of the affidavit for insufficiency, irrelevancy or iii- competeucy." On the trial the court, on the objection of the State, EVIDENCE OF I'lJIOIl INSANITY d'6 'HKIt — KVI- Practice and Evulciice. e, knowing It to iilse arising i\<>t is not criminally isane at a period lie prisoner, evi lowledge of tl'u >ny in the case pleaded not dearty stipulated that all proper objections to the suffi- ciency of the affidavit might be made on the trial. ■ Sects. 3010, 3011, 4760. 3 Sect. 3013. I 94 THE LKUAL TKST OF INSANITY. State V FflttT It will be seen tliut it was proposed to prove by the three inciliciil gen- tlemen named, that in tiieir opinion tlie defendant was insane at the time the homicide was eomniitted. The affidavit inulertakes to give the data upon which this opinion is based. If the ecomcs accjuainted with his mental condition, he may give an opinion respecting such mental condi- tion at that time ; that is, he nmy, under such circumstances, state to ' Pelamourges v. Clark, 9 Iowa, 116 ; 3 Greenl. on Ev., sect. 5. OPINIONS OF MKDICAL MKN, 95 nulictil gon- isaiie lit the I to give tilt' \ will not, ill ion as to thv ;lu(ling such resent upon and circuin- ified by still it's conduct le or insane have been I the place of ivit as one of >r the reason le judgment. 1 of the alli- estly errone- pf Dr. Fay. 7,. Fay, who lysician of has visited al disability that in his disability the affiila- ired around lis father's erangenient is life, it is trying the )erson, and d with his 'utal condi- s, state to Prisoner Kntlthtl to Kiilr Trial. the jury his opinion as to the sanity or insanity of tlie person at the time when he thus olwerved or examined him.' There is no more reason why he may not do this, than why he might not testify that he saw a certain person at a certain time, and that he was then laboring under an epileptic fit, or under an attack of tyi»lius fever, or had been stricken down and rendered unconscious by an aiioplectic stroke. "We have found it impossible to sustain the ruling of the court in re- jecting this portion of the allidavit. Of its materiality it is needless to speak. The point deciuec^ is, that a medical witness may, from personal knowledge and examination, give an opinion based thereon, as to the mental condition of such person. lie might, of course, be required on cross-examination, to describe the condition of the person, and to give the date and facts upon which his opinion is based. For this error, the iiubmient must be reversed. This result we regret the less, because there is much in the record to show (though not sutHcient on this account alone to justify a reversal), that all that portion of the affidavit before referred to as being underscored with red ink, and which stated that defendant's father and the defendant himself were suliject to iiisunity, were stricken out by the court before the affidavit was read to the jury; and because, also, we are not satisfied that there was that full, thorough, and deliberate examination of the defendant's alleged insanity to which he was, under the law, entitled. We cannot resist the conclusion, that the defendant, by the rulings of the court below, was practically deprived of showing to the jury the truth of the alleged insanity of his father, and of himself at former periods of his life; facts competent, material, and highly important as bearing upon the question of defendant's alleged insanity. - In the debate of the House of Lords on 3Ii:Xaghteti's Case, Lord BijiifoiiAM very justly criticised the needless haste of the court in Bel- iin'jliani'ti Case, in proceeding to trial without allowing f'l.' prisoner the ((pportiinity of slioMing that his family had been tainted with insanity, Mild tliat he himself had been previously insane.'' Finally, it is insisted that the court erred in its instructions to the jiirv, and in its refusal to give certain instructions pra3'ed by the de- fendant relative to the defence of insanity. Before noticing the assign- • In re Cainiichael.SO Ala. 514; 1 Bishop's ( r. I'roc, sod. ."i^l; Commonwealth v. Riigers, 7 Mete. 500; Clark v. State, 12 Ohio, 1"^:!; r.axtert'. Abbott, 7 Gray, 71; McAllister <- State, 17 Ala. 134 ; lu re Vanuukuu, 2 Stock. 18R; 1 Greenl. on £t., sect. 440; Ileald v. Thing, 45 Me. 392. •i Bii.xter V. Abbott, 7 Gray, 71. s Hansard, 67, 714. 9G TIIK LKdAL TKST or IN.sAMTY. Stiito V. FilfiT. nieiit of error, it in iiroper, hrit-lly to wU'v to the ciriMimstiiiicc of the liomicido. 'I'liut tin; (k't'i'ii(l;iiit look the life of liis wife, wus not dis- puleil, ami the only (U'feiice umuU'. or n-lied on was that species of uien- tal unsoundness, which has received tlie name of hontieidal mania. Tlie testimony tends to show tliat tii(! dcfendrson, and a very le record ; le case is iilled per I don't cause she ill me ; I r.'s, — a truck her, ead; my ' She ween the endant to ,th or the e defend- as afraid he (liefentlant ) would kill us; my fiilhcr, at this lime, was breiikinj; tilings in the house ; wiien I started to iMr. I'.'s they were out liet\ve»n the liotisi' and fence ; we had all eaten dinner — • all sat down toj^elher, nothinji; was said; 1 starteil to Mr. i'.'s because his actions were such, that I thouj^ht he was o;oing to kill me; I went into the housi! and he was Itrcakim; things ; he said notliiuL;; he threw the lamp out of doors, and broke the clock; said nothing when he did this; papa and 1 were in the house and ma 9 or many duct, or and told show, or o rescue ians that eem that 'rotn the ascribed, the de- It was own life he stand J defend- jntly hap- , of these special ne of the iig under d him to reason e to the Uy. In 's mind, ras so in- ot know quit him in their not state lant had respon- :now tliat X)n us to defence itially aa Ive been, Views of llie Court. I and are not, as we find upon comparison, essentially different on this point from those asked to be given on the ptii-t of the defendant. With reference to the right and wrong test referred to in the instruc- tions given it will be seen that the court does not adopt this criterion as a general one, that is the court does not say if the defendant has capac- ity to distinguish between right and wrong generally, he is criminally responsible. But it held that if at the time and with respect to the act about to be committed, the defendant had not reason enough to discriminate between right and wrong with reference to that act, had not reason enough to know the nature of the crime, and did not knoiothat he tvas doing wrong in ommitting it, he is not criminally punishable. The court in sub. stance held that if the defendant's reason was so far gone or over- whelmed that his pcrcei)tion of right or wrong with respect to the contemplated, act was destroyed, if he did not rationall}' comprehend the character of the act he Avas about to commit, he should be acquitted. The instruction as given finds a full support in the judgments of courts the most respectable.' On the other hand, the right and wrong test, even when guarded as carefully as in the court's instruction, has been very vehemently opposed as incorrect and delusive, ^ especially as a criterion of responsibility in cases of moral insanity. As applied to the facts of this case, a preferable mode of instructing the jury will be briefly indicated below. In my opinion the right and wrong test is not to be applied too strictly, and belongs more properly to intellectual than to moral insanity.' Intelligent medical observers who have made insanity a special study, insist that it not unfrequently happens tliat persons un- doubtedly insane, and who are confined on that account in asylums, are able to distinguish right from wrong, and to know the moral qualities of acts. Perliaps the profession of law has not fully kept pace with that of medicine on the subject of insanity. And yet medical theoiists have propounded doctrines respecting insanity as an excuse for criminal acts, wlilfli a due regard for the safety of the community and an enlightened public policy must prevent jnrists from adopting as part of 'the law of the land. If, as the court charged, the defendant committed the act ' Freeman r. People, 4 Denio. 27; and approved and followed in the recent case of Willis V. People, 32 N. Y. 715; State v. Hraiiilon, 8 Jones N. C. (L.),463; Common- wealth r. Mosler,4 Pa. St. 266; McNagbten'a Case, 10 01. & F. 210; Oxford's Case, 9 C. & P. 525. 2 Ray, sects. 16, 17, 18, 16, et. serj. ; Whar- ton & Stillo (2d Kd.) sect. 61); and see Smith V. Commonwealth, 1 Duv. (Ky.) 224. ii 100 THE LEGAL TEST OF INSANITY. Statu V. Fc'lter. I' from an irresistible and uncontrollable insane impulse, not knowing it was wrong, it is clear that iie is not criminally responsible. But sup- pose he knew it was wrong, but yet was driven to it by an uncontrolla- ble and irresistible impulse, arising, not from natural passion, but from an insane condition of the mind, would he then be criminally re- sponsible ? Most of the cases before cited have recognized the doctrine, that there is a responsibility for the criminal act if the accused knew at the time it was wrong; or, as it Avould be better expressed, if he rationally com- prehended the character and ccmsequences of the act. But, if, from the observation and concurrent testimony of medical men who make the study of insanity a specialty, it shall be definitely established to be true, that there is an unsound condition of the mind, that is, a diseased condition of the mind in which, though a person abstractly knows that a given act is wrong, he is yet, by an i)isane impulse, that is, an impulse proceeding from a diseased intellect, irresistibly driven to commit it — the law must modify'- its ancient doctrines and recognize the truth, and give to this condition, when it is satisfactorily shown to exist, its excul- patory effect. It is not too much to say, that both medicine and law recognize now the existence of such a mental disease as homicidal in- sanity ; the remaining question in jurisprudence being what must be shown to make it available as a defence to a charge of murder.* In a recent case in Kentucky, it is said that moral insanity is recog- nized 1)}' medical jurists, and that "the true test of responsibility is, whether the accused had sufficient reason to know right from wrong, and whether or not he had sulRcient power of control to govern his actions." - If this want of power of control arose from the insane condition of the mind of the accused, he should not be held responsible. But if want of power to control his actions arose f lom violent and ungovernable pas- sions, in a mind not diseased or unsound, he would and ought to be criminall}- punishable for his acts. Of all medical-legal questions, those connected with insanity are the most difficult and per[)lexing. Without further discussion, we conclude by stating what, under the facts of this case, would be safe and proper directions to be given to the jury respecting the point under consideration. The jur^', in sub- stance, should be told that if the defendant's act in taking the life of » See Wharton & Stille's Med. Jur., pects. 61, 178. 2 Smith r. roititnonwealth.l Diiv. 224. See •also Scott r. Coniinonwi'iilth, 4 iMclc. (Ky.) 227 ; cumpui'u blait) v. liruuUuu, supra. PASSION AND INSANITY DISTINGUISHKl) 101 )wing it 5ut sup- jntroUa- tut from lally re- lat there the time lly coTi- from the luike the 'd to be diseased ows that I impulse imit it — uth, and ts excul- ! and law icidal in- must be 1 reeog- )lilty is, wrong, )VL*rn Lis n of the want of jle pas- it to be are the ider the riven to in sub- e life of .224. See }lc. (Ky.) 'ra. Jury may bo Cautioned as to the Di-fcnci'. his wife — if. he did take it — was caused by mental disease or unsound- ness, which dethroned his reason and judgment with respect to that act, which de.stro3'0(l his power rationally to comprehend the nature and consequences of that act, and which, overpowering his will, irresistibly forced him to its commission, then he is not amenable to legal punish- ment. But if the jury believe from all the evidence and circumstances, that the defendant was in the possession of a rational intellect or sound mind, and allowed his passions to escape control, then, though passion ma}' for the time being have driven reason from her seat and usurped it, and have urged the defendant with a force at the moment irresistible to desperate acts, he cannot claim for such acts the protection of in- sanity. "Whether passion or insanity was the ruling force and controlling agency which led to the homicide — in other words, Avhether the defend- ant's act was the insane act of an unsound mind, or the outburst of vio- lent, reckless, and uncontrolled passion in a mind not diseased, — is the jiractical question which the jury should be told to determine accord- ing to their best judgment from the evidence before them. If the}' believe that the homicide was the direct result or offspring of insanity, they should acquit; if of poss?'o7i, unless it be an insane passion, they should convict. This is a much more practical inquiry than to direct their attention solely to the defendant's capacity at the time to distin- guish right from wrong — an inquiry which must often bo speculative and difficult of determination from the data possible to be laid before tlie jury, and which, as a test or criterion of responsil)ility, rather be- longs, when applicable, to what is known as intellectual, as distinguished from moral insanity'. As the case w^ill have to be retried, we have briefly indicated our gen- eral views as to the instructions proper to be given to the jury on the subject of criminal capacity and res[)onsibilit3'. Where homicidal in- sanity is reliec on, the court may very properly sa}' to the jury that tliey shonl'J indulge in no prejudice against the defence, but give it tin ugh If ul, thorough, dispassionate consideration ; 3'etthat the interest of society requires that it ought not to be regarded as sufficient to ex- culpate unless the jury believe from the evidence that the propensity to commit the act existed in such violence as to subjugate the intellect, control the will, and render it impossible for the accused to do other- wise than to yield to the insane impulse. In other words, it should appear not onl}' that the mind of the accused was insane, but that the act for which he is indicted was the direct offspring of such insanity ; this being shown, responsibilitj' is annulled, but not otherwise. Vr 102 THE LEGAL TEST OF INSANITY. State V. Mewherter. Because of the error of the court in excluding material portions of the affidavit for a continuance, the judgment is reversed and the cause remanded for a new trial. Reversed. UNCONTROLLABLE IMPULSE — INSANE DELUSION— TEST OF INSAN- ity— evidence of appearance and conduct. State v. Mewherter. [46 Iowa, 88.] In the Supreme Court of Iowa, June Term, 1877. Hon. James H. Rothuock, Chief Justice. " Joseph M. Beck, " Austin Adams, " William H. Sekvers, •« James G. Day. - Judges. 1. TTnoontroUable Impulse — When a Defence.— The uncontrollable impulse which will relieve a perBon from the consequences of the commission of u crime, must have its origin alone in a diseased mind. 2. Test of Insanity. — To excuse, the mental disease must be such as to destroy the power to comprehend the nature and consequences of the act, and to overpower the will. 3. Insane Delusion— When an Excuse.— One who commits a crime under the influence of an insane delusion is punishable, if he knew ut the time that he was acting contrary to law. 4. Appea ance and Conduct of Prisoner. — In considering the question of the sanity of a prisoner, the jury may properly be directed to consider his appearance, conduct, and language prior to the time of the commission of the alleged crime. Appeal from Pottawattamie District Court. The defendant was indicted for murder in the first degree, in killing Joseph W. Hatton in Pottawattamie County, and upon conviction for the crime was sentenced to imprisonment in the penitentiary for life. He now appeals to this court, Montgomery & Scott, for appellants. J. F. McJunkin, Attorney-General, John II. Keatley, and C. E. Rich- ards, for the State. Beck, J. — (Omitting rulings on other points. ) Testimony, tending to prove the insanity of the defendant at the time of the homicide was introduced in his behalf. It was claimed that this condition of mind had existed for some time. A witness for the EVIDENCE OF OPINION. 103 Tlie Facts of the Case. State testified that during the time of the alleged insanity he had two conversations with the defendant, and saw him often, but observed nothing unusual in his actions, and that, in the language of the witness, ' ' so far at I could see, he was as regular and sane as the first day I saw him." Upon the cross-examination, the counsel for defendant asked the witness if he thought himself competent to give an opinion as to defendant's sanity. An objection to the question was sustained on the gi-ound that it was not proper in cross-examination. The ruling is complained of as erroneous. We think it was correct. The witness had stated facts, and not his opinion of defendant's sanity. The ques- tion, therefore, did not relate to matters brought out upon the direct examination. Other objections to the proceedings and judgment are based upon the rulings of the court in giving and refusing instructions, and in overrul- ing a motion for a new trial on the ground that the verdict is in conflict with the evidence and the law as given to the jury by the court. The consideration of the objections demands attention to the testimony given upon the trial. We will proceed to state briefly, the purport of the evi- dence, so far as it is necessary for the proper understanding of the questions we are called upon to discuss and determine. The defendant, at the time of the homicide, was a farmer, and about fifty-two years of age. He had sons and daughters of mature years, and others yet in childhood. About one year prior to this event he had employed Dr. Joseph W. Hatton, for the killing of whom he was con- victed in the court below, to attend upon his wife iu child-bii-th. The evidence tends to show tliat defendant charged Dr. Hatton with mal- practice in his professional treatment of the case, and with improper exposure of tlie person of his wife, and other cruel aud unprofessional conduct, whereby the health of the patient was permanently impaired, and her womanly feelings outraged and wounded. To recover for these injuiies to the health of his wife, defendant brought and prosecuted an action against Dr. Hatton, which resulted favorably for the physician. After the confinement of his wife, and up to the killing of Dr. Hatton, defendant exhibited violent excitement upon the subject of the alleged injuries to his wife and himself. They were the subject of his conver- sation to many persons, and he rehearsed the incidents connected there- with in public places, in the hearing of all who would give heed thereto. In these conversations he indulged in violent denunciations of the physician, accompanying it with great profanity, and declared he lacked skill and ability in his profession, and was destitute of qualities necessary to fit him therefor. He made threats against the person and 104 THK LEGAL TEST OF INSANITY. Stute V. Mewlierter. life of Dr. Ilatton, declaring that it was his purpose to drive the pliysi- cian from the country by tlie suit, and if it failed in such object, lie would shoot the doctor. These threats wore frequent, and those made after the suit was terminated against defendant were unaccompanied by (pialification or condition. Tliey were communicaled to Dr. Hatton, who armed himself for protection against defendant, to whom this fact was soon made known. On Sunday, the 18th of July, 187"), Dr. Ilat- ton was called to visit, professionall3', a patient living about a mile and a half from defendant's place of residence. The father of the pliysician, a man of seventy-two years of age, accompanied him in his buggy, and they passed witliin a quarter of a mile of defendant's house. Tliey also drove near the house of a neighbor where defendant was at the time. lie was informed of the fact of their passing the house and immediately left, after exi)ressing his want of confidence in the physician's skill, and went in the direction of his own house. He had come but a short time before to this neighbor's from the house of the iiatient, who had informed him of the fact that Dr. Ilatton was expected, and would soon arrive. Upon receiving this information he expressed, angrily, his ^.ant of confidence in the skill of the physician. In returning from the vis t to the p;itient the road travelled by Dr. Ilatton and his father took them again near defendant's hoiise. They reached this place not long after defendant had left his neighbor's house as aliove stated. The incidents immediately connected with the act of defendant, which resulted in the killing are related lij' the father of Dr. Hatton in the following lan- guage: "After we got around the willows, we saw defendant going through the fence with his gun in his hand, east of us, — might iiave been eighty or a hundred yards, — defendant came through his fence across first track of road to second road ; came in front of doctor when pretty near his gate ; we were driving on a trot ; he came down the road with his gun ; thumb looked like on the cock ; he raised up and the doc- tor said 'stop.' This is all the doctor said, when gun went off; gun about three feet long; don't think it was a second after he raised up until he shot; don't know whether he took aim or not; we had a two -stepped buggy ; my left foot was on the upper step ; when the gun went off the doctor fell over my right thigh, and it scared the team ; they went on ; I went out near Mewherter's gate ; looked back and saw defendant behind, standing in the path, about half bent, with gun pre- sented like he was going to shoot again, but he did not; looked back again ; defendant said, ' Oh, God damn you, I have killed you ; ' that was all defendant said." The shot took effect in the abdomen, and the doctor lived about two weeks. STATE V, MEWHERTER. 105 Evidence in the Caxe. lie physi- bject, he jse made lanied by Hattou, this fact Dr. Ilat- lile and a hysiciaii, ggy, fvnd rhey also the tune, nediately skill, and t a short who had )uld soon his ^ant , the vis t pok them Dng after incidents 3d in the 'inij Ian- nt going ght have lis fence or when Ithe road he doc- nt off; ! raised e had a the gun team; nd saw un pre- ed back ; ' that and the The fact of killing was not contested at the trial ; the defence wholly relied upon was the alleged insanity of defendant. The testimony tended to establish that after the confinement of defendant's wife? when she was treated ])y Dr. Ilatton, defendant's disposition, temper and deportment, whenever that subject was spoken of by liim, or his mind was directed toward the physician, were unlike, in their manifesta- tions, anything before exhibited by him. He was violent, unreasonable and extremely denunciatory and bitter in his expressions. Ills appear- ance, too, on such occasions was changed, exhiltiting great excitement and nervousness. His wife and children testified that he was wakeful and restless at night, would arise from his bed and arm himself, and, as an explanation of his actions, would declare he was guarding his wife. He would often declare that his troubles were more than he could bear, and wlun the name of Dr. Hatton was mentioned he would become pale, wijd, and nervous. His appetite was poor, aud he l)ecame thin. They state that his actions were unusual and strange ; but neitlier they nor other witnesses testify to any change in his mind or manner u\h)U any other subject than that of his troubles with Dr. Hatton. There is no evidence tending to prove that upon all other subjects he was not reasonable ; and, indeed, it is not so claimed on the part of the defence. Upon evidence of the character indicated above, the cause was sub- mitted to the jury upon numerous instructions upon the law of the case given by the court. After we have considered the correctness of the ruling in excluding certain instructions asked ]>}' defendant those given will claim our attention. Counsel for the defendant presentetl seven separate instractions which they requested to be given to the jury. They all related to the subject of insanity, which was, as before stated, the sole ground of defence relied upon. These instructions present rules to guide the jury in de- termining defendant's accountability. The natui'c, character, and ex- tent of mental disease which renders the subject irresponsible for acts otherwise criminal are stated therein. The substance of these instruc- tions, except the fifth, is fully and fairly embraced in the ninth, tenth, eleventh, and twelfth, given upon the court's own motion. 'I'hese will be hereafter considered. The refusal to repeat rules announced in in- structions, by giving them in another form as asked b}' either party, has often been held not to be error. The fifth instruction just referred to is in the following language so far as it treats of the question of insanity: 'If * * * the pro- pensity in tiie defendant, from whatever cause it may have originated, to commit the act, existed in such violence as to subject the intellect, 106 THE LEGAL TEST OF INSANITY. State V. Mt'wherter. control the will, and render it impossible for the accused to do other- wise than yield to the insane impulse by which he was controlled and the act was the offspring of such insanity," in such case " neither the State nor the interest of society demanded such conviction." A glance will suffice to discover the error of the rule here presented. The pro- pensity — the disposition to c Ray's Med. Jur. of Insan., sects. 29, 39. 3;i6. 108 THE LEGAL TEST OF INSANITY. ! HtiitL' V. .Sticklcv. plain the term malice and points out when it will be presumed to be of the dcsjree or character which constitutes niurtler. But, in using the term malice in these explanations, the adjective oforethonr/ht is not used in connection with it. This is the ground of counsel's criticisms. They are not well founded. The court in the langua<>e compltiined of explained to the jury what facts autliorized the conclusion that malice had the quality of being aforetliou<>ht. It was not necessary in doing so to couple the adjective, the meaning of which the court was ex- plaining, with the word malice whenever it Avas used. Another instruction directed the jury to consider all the facts con- nected with defendant's language, appearance, etc., preceding the alleged homicide upon the question of defendant's insanity. They were informed that these facts were to be considered to enable them to test the value of the opinions expressed b}' witnesses upon that subject, and also to determine the fact whether the insanity was established inde- pendently' of such oj)inions. The purport of the instruction is obvious. If witnesses had testitled that defendant was sane, and his actions, as shown by the testimony, were unmistakably those of an insane man, surely this should, in the minds of the jury, destroy the force of the opinions and lead them to the conclusion, upon the evidence of his actions alone, to find the existence of insanity. The like rule would be applicable did his acts establish sanity when the opinions of the wit- nesses were the other way. The objection to the instruction is without force. Others of the same character need not be noticed. Affirmed. MORAL INSANITY— INSANITY MUST DIRECTLY CAUSE CRIME TO EXCUSE IT— OPINIONS OF WITNESSES. State v. Stickley. • [H Iowa, 232.] In the Supreme Court of Iowa, December Term, 1875. 1. Koral Insanity no Excuse for Crime. — A person who is possessed of a sound mind is liable for a criminal act, though committed under the imiiulse of passion or revenge which may temporarily dethrone reason and control the will. 2. Insanity is only an Excuse for Crime where it is the direct cause of it. 3. Opinions of Witnesses, when admissible. ArPEAL from Benton District Court. At the April term, 1.S73, of the Blaekhawk District Court, llie defend- STATE V. 8TirKL?:Y. 109 ned to be I using the 9 not used criticisms. [)ltiined of liat malice iT in doing :t was ex- facts con- ceding the Tho3' were lera to test ibjoct, and shed indo- is obvious, actions, as isane man, rce of tlio nee of his e would be f the wit- is without Facts In the Case. [(firmed. 3RIME TO .sound mind or Tcvenge ants, ^lary Stickley and Khnira Stickley, were jointly indicted with Richard (leorgc, for an assault with intent to murder one Byron Wright. Mary Stickley is tiie m»jther of Elniira, who, at the time of the commis- sion of the offence charged, was about sixteen years old. IJichard (leorge was in tlie employment of IMary Stickley, and boarded and lodfCil at her house. There is some evidence that wliilst he was there an engagement of marriage was made between him and Klmira. Wright took charge of a schocd very near to Mrs. Stickle^-'s, and at the solicita- tion of Mrs. Stickley and Klniira, came to board with them. It would seem, from the evidence, that Khnira became very nnu-h eiiamoied of him, and that the mother was quite willing to promote and encourage an intimacy between tiiem. On the Tluusday before the commission of the assault, Wright made arrangements to board with Kiugsley, one of the directors, and remained there Thursday night. On Friday, Mrs. Stickley and her daughter interrogated him about boarding at Kiugsley's, Mild he informed them he thought of going. On Saturday he told them positively he intended to go, and both urged him to sta}'. The testi- mony of Wright on this branch of the case is as follows: " Both fell to abusing me; asked why I wanted to change my Ijoarding place; Mrs. Stickley said that if 1 would stay, she woidd give me what I owed her. 1 said that would be no object. Then she said she would give nil' what would be due her if I stayed to the end of my school. I said that would l)e no object. She tlu'U said, ' if ^'ou will stay and marry KImira, I will give you the farm,' and neither of us should want while she lived. I told her that would be no object. They ended their l)lt;Kliiigs by Mrs. Stickley saying: 'Then, danui j'oii, go;' repeated that several times ; got very angry ; said they rather see me shot than to go to Kiugsley's. This was Saturday morning." Saturday evening both again urged hira to sta}': )Vright testifies: " KImira came to me Saturday night, and said ' INIr. Wright, I will give j'ou another chance. Won't you give up going to Kiugsley's, and stay here? ' I told her no, and. further, I wished she would not ask me that again ; that it was my privilege to go where I pleased ; and she said : ' Look out, maybe you will not go yet.' On Sunday mrruing KImira renewed her expostula- tions, and when informed that he would not stay, she said : ' I had a notion to blow your brains out while you was in bed, but I will give you another chance.' When he went to church Elmira was weeping, and w' e;i he returned her mother said : ' She has been crying ever since you iri\e been gone.' " On Monday morning Wright dressed himself and went out, saying he would go over to school. Elmira, her mother and lie defend- ' 110 THE LEOAL TEST OF INSANITY. State V. Stlckl(>v. CfCorge, nil askod him to eat. IIo saitl he would letiirn at recess. At recess he came in and took his place at the taMe. Elmira came behind liim and shot him in the back of the head, ile took iiold of the table, rose to his feet, and turned toward the outside kitchen door, and then fell to the floor on his face. He again rose and started to the door. When he reached the outside door Ge.irge vas standing with his back against it, and when he tried to get out. he pushed him away. This was repeated a half dozen times. Wright then went to a broken glass in the window to get air, and G.'orj'-e shot him in the left side of the head in front of the ear. Mrs. Stickloy was present, and the evidence tends to show that she enojuraged and altetted the act. Mrs. Stickley testifies that after they retired Sunday night Elmira told her Wright had insulted her .>n Friday night in the school-house, but that she i)ald no attention to it, bccacse she knew Elmira had told things before that were not tcue, aiid chat she had imagined things. There was evidence tending to show that the father of Elmira was subject to fits of insanity, and that Elmira had insane spells ; that there woe peculiarities in her conduct at her monthly periods, and that the traiisaction in question occurred about that period. Upon the other hand, there was evidence tending to show that there was nothing peculiar about the father of Elmira, except that he was a very passionate man, and that nothing unusual was discernible in the conduct of Elmira pre- vious to this event. The jury found both defendants guilty, as charged. The court sen- tenced Mary Stickley to the penitentiary for nine years, and Elmira Stickley, who. at the time of the sentence, was nearly seventeen years old, to the reform school until she should attain her majorit}'. The de- fendants appeal. Boies, Allen & Couch for appellants. . Cntts^ Attorney-General for the State, Day, J. — I. Immediately after the shooting r " and Elmira got into a sleigh, and she drove, at a rapid rale, ti . Falls, a d tance of about a mile. A witness, Packard, describ now she was cuessed, her appearance, and manner of driving, and suyi* he saw her a few minutes afterward in Taggart's store, and heard her t. iking, but paid little attention to what she was saying. That she was very much ex- cited, and was relating something in regard to the occurrence. He was then asked the following question : " Will j'ou state from your knowl- edge before, and your acquaintance with her, from her conversation at that time, and her looks at that time, whether, in your judgment, she was then in her right mind ? ' ' OPINIONS OF WITNKSSKS NOT KXPKUTS. Ill icess. At inc bohind the table, , nnd then the door, h bis back -ay. This okcn glass lido of tlie evidence 8. Stickley bright had 18 ])aid no jefore that ilmira was tliat there ;1 that the the other ig peculiar nate man, Imira pre- court sen- iid Elmira ;een years The de- iiiisa got d *ance cii ossed, ler a few but paid much ex- He wag ui knowl- sation at inent, she Must be Basi'il on Stati'd Facts. Tlie question was objected to, as iiioompetoiil and iuiidmisxible, and the objection was sustained. In l*eJitmi»irrfm v. C'lnrkJ respecting tlie admission of opinion of witnesses, not experts, It is said : '• The extent to which any of the authorities have carried the rule, even in the Kcdes. iastical Courts of Kngland, is, that after the witness has stated tlie facts and circumstances, then his conclusion or opinion derived from and resting upon them may be given."- Tested by this rule, which has received the sanction of this court, and is abundantly sustained by authority, it seems cpiite clear that there was no error in excluding the (juestion asked. The v/itnesshad descril>ed the appearance and maimer of Elmira, but paid little attention to, and does not undertake to detail what she said. lie was asked to give his opinion whetiier she was in her sound mind, from her conversation wiiich he had not detailed, and her looks, and from his knowledge before and acijuaintance with her. Now, however proper it might hav»; been for him to express an opinion !)ased upon her conversation and looks, if he had descril)ed her looks and detailed her conversation, so tliat tlie jury might have I)een put in possession of the facts upon wliicli he based his opinion, and been enabled to estimate properly the value of his opinion, it is clear that he could not exijress an opinion from his former knowledge and acquaintance. Such evidence would be a mere substitution of the opinion of a non- professional witness for facts. -^ II. Tiie defeiiilant introduced testimony tending to show the defend- ant (Elmira) had been temporarily insane at different times prior to the alleged offence. In rebuttal, the State called Lyman Davidson, who stated he knew Stickley, and was the»i asked the following question : "Did you know the treatment ne received fnmi his wife?" The defendants oVjjected to evidence of her treatment at other times than those in which it was claimed he was deranged. The objection was overruled, and defendants excepted. The witness answered : "They were a very peculiar family. They wore very rough, and would swear like pirates ; knew of their having fiunily quarrels ; the boys could not live at home ; know the general character of Mrs. Stickley; it is very bad." This answer, it will be observed, is not all responsive to the question. It does not appear that any effort was made to exclude it from the jury. The mere asking of ' It Iowa 1. - See also Dunham's Appeal, 27 Conn. 13. ^ See the following authorities cited by ai>pellee; Clapp v. Fullerton, 34 N. Y. 11)0; O'llrien v. People, 36 Id. 576; Ileal v. People, li Id. 270; Hewlett v. Wood, .55 Id. 634. See also the following oases in which the rule of exclusion is carried to .still greater extent: Coiuinouwealth v. Wilson, 1 Gray, 3;!7; Com- monwealth V. Fairbanks, 2 Allen, 511 Wyman v. Gould, 47 Maine, 159. 112 THE LEGAL TKST OF IXSAXITY. State V, Stickley, the question, if erroneous, worked no prejudice to defendants. Tiie answer was permitted to reinain witliout objection, and even if it should be coneeded that it contains im[)roper evidence, it constitutes no ground for reversing the ease. Wliere iniprcjper evidence is permitted to re- main in a criminal ease, without objection, the eiTor ii> its admission is waived.' III. The court instructed the jury as follows: "8. Tlie luiture, character, and degree of insanity' wluch exonerates a party from crim- inal resi)onsibility is not euisily explained or understood. It is not nec- essary that it should be shown by the evidence that the defendant at the time of the commission of the act did not know right from wrong, as to her acts in general. The inquiry must be directed to tlie act charged. If you believe from the evidence that the defendant's act in shooting " Vright (if she did siioot him), was caused by mental disease or unsound- ness, which dethroned her reason and judgment with respect to that act, which destroyed her power rationally to comprehend the nature and consequences of the act, and whkh, overpowering her will, inevital)ly lorced her to its commission, then she is not in law guilty of any crime, and j'our verdict as to her should be not guilty. B'lt if jjoa believe from all the evidences and circumstances in the case, that she ivas in the ])ossession of a rational intellect or sound mind, or from some real or fancied injury she alloived her passion to escape control, then, though passion or recencje, may for the time, have driven reason from its seat, and usurped it, and urged the difendant icith a force, at the moment irre.si-;tible, to desperate a(.'^s•, she cannot claim for such actf the j^i'otec- tion of insanity, and she is guilty. Tiie practical question for you to determine from all the evir. : e is, whether passion and revenge or insanity, was the ruling force antl controlling agency which led to the commission of this act. If 3'ou believe that the shooting was the direct result or offspring of insanity j'ou should ac([uit; if of passion or ivvenge you should convict. You should indulge in no prejudice against the defence, but give it tlioughtful, thorough and dispassionate C(^nsideration, and yet the interests of society and tlie welfare of the State demand that this defence ought not to be regarded as sullicient to exculpate, unless you believe from the evidence that the propensity to commit the act, existed in such violence as to subjugate the intellect, control the will, aud render it impossible for the defendant to do other- wise than to yield to the insane impulse. In other words, it shouhl appear not only that the mind of the accused loas insane, hut that the state V. Polsun, 29 Iowa, 133. INSANE DELUSION. 113 russioii and Uevciiitc :s. The t should 5 ground d to rc- issiou is ■ nature, )m dim- not nee- ,nt at the jg, as to charged, shooting unsound- t to that iture and nevital)ly ly crime, m believe le teas i)i some real H, though I its seat, moment e 2'>>'otec- V you to ^•I'nge or id to the a direct sion or rejudice ssionate ,he State lent to nsity to Intellect, lO other- s/ioul'l that the act for ichich she is indicted was ike direct offspriny of such insanit;/. This being shoioi, responsibilit;/ is anmdled, but not otherwise.'^ To tills instruction defendants excepted, the i)arts object^.'d to arc in italics. It is conceded that the first paragraph o))jected to was borrowed from the rule suggested by this court in State v. Feltrr,^ and tiiat it is almost a literal copy thereof, with the addition of the words, '■ or revenge " after the word passion. Whilst no objection is made to this rule in a piopcr ease, it is clanned lliat the facts in the case of State v. FelU r and in this case are so essentially different as to render a rule, wliirh would be entirely safe and proper in one case, equally unsafe and iniprop.i in the other. It is urged that the rule has no a[)|)lication to any tlieory of either the piosecution or the defence. It is insis'.e'l that the State claims that the assault was the consummation of r deliberate plan formed by three rational beings, to take the life of Wrigiit. Whilst the defence claims that it was the outgrowth of an insane delusion on the part of Elmira, that he had locked her in a school-house and attempted her ruin. We are uuLble to see wherein the instruction is not pertinent to the case. The defence claimed that Elmira, at the time of the commission of the act, was laboring under such insane delusion, impelling her to the net, and overcoming her Avill, that she is not responsible iov her con- duct. It was incumbent upon the coiu'tto distinguish between insanity and mere passion or revenge, and to instruct the Jury that the latter, though it may for a time have driven reason from its seat, would furnish 110 excuse. This portion of the instruction must be taken in connection witli that which immediately follows, in which the court says: "Tlie practical question for you to determine from all the evidence, is whethei- passion and revenge or insanity was the ruling force and controlling agency which led to the commission of tliis act." From all the circumstances disclosed the jury were warranted in find- ing that Elmira was actuated by a spirit of revenge, or was thrown into a violent passion, because Wright would not listen to her expostulations, and was determined to change his boarding place, and if she allowed tliis feeling of passion or revenge to so take possession of her mind as to impel her to an act of violence, she is still rcsponsiiile therefor, if her act was the outgrowth of her passion or revenge and not of her insanity. Tlic next paragraph objected to is a literal quotation from State V. Fe'ter,- But it is claimed that the question of its correctness was not 1 25 Iowa, 67. 8 p. 86. \ 114 THE LEGAL TEST OF INSANITY. Uradlev v. Stato befoi'e the court, and that the hinguage can onl}' be considered as dicta. We think the paragrapli cannot be regarded as mere dicta, and further, that it is not fairly vulnerable to the criticism made upon it. It is claimed that tlie rule here recognized casts upon the defendant the burden of proving by substantive testimony, not only that she was insane, but that the act for which she was indicted was the direct offspring of such in- sanity. This is not, we tliink, the fair construction to be placed upon this paragraph, when taken in connection witii the wliole instruction. It means only that, from all the facts and circumstances of the act, as disclosed by the testimony, if defendant would claim exculpation on the ground of insanity, it must be made to appear that she was insane, and that the offence was the offspring of such insanit3\ Instances are nu- merous in the works upon medical jurisprudence, in which the mind respecting some particular matter rests under a peculiar delusion, and with respect to all matters having no connection therewith, appears per- fectly sane. Whilst such a person could not be regarded as sane, j-et he would be criminally respoiisi1)le for his acts, unless they could be attributed to his particular delusion. IV. The evidence as to the sanity of Elmira was conflicting, and it does not warrant us in disturbing the verdict which found her sane. The jury was fully warranted in finding that Mary Stickley was present, and that she aided, abetted, and cncouniged the assault. No error is apparent in txc record. Affirmed. TEST OF INSANITY — UNDERSTANDING AND WILL — BURDEN OF PROOF — REASONABLE DOUBT — DRUNKENNESS — HEREDITARY IN- SANITY—BOOKS OF SCIENCE — EXPERT -COMPENSATION. Bradley v. State. [31 Ind. 492.] In the Supreme Court of Indiana, November Term, 1869. Hon. James S. Fiuzkr, Chief Justice. ■ Judges. " RonEKT C. Gregoky, " Jonx T; Elliott, •' CuAKLES a. Ray, 1. Test oflnsanity— UnderstandiiiR and Will. — Ins.anlty may dcfitroy cither the un- (ler.staiuliiiK "v the will. An instruction, therefore, which limit" the inquiry of the jury to the cuuiUliou of the power to ui>i)ruhcuU by the uudcrstaudinK. is erroneous. BRADLEY V. STATE. 115 Syllabus and Facts. IS dicta, further, claimed irden of but that such in- :ecl upon truction. le act, as 3n on the lane, and I are nu- the mind sion, and )ear3 per- sane, yet could be ind it does .no. The ;sent, and irmed. IDEN OF Itary in- 9. lUerthe un- of the jury bous. 2. Burden of Proof. — Where there ia a reasonable doubt of the iirisoner's insanity ad- iluced by hi n, the burden of proving his sanity falls on the .State. .3. Reasonable Doubt dellncd. I. Voluntary Drtinkenness ii^ uo excuse for crime; but insanity i)ro(hu'Ccl l)y continued intoxication is. 5. Evid' :;'■' —Hereditary Insanity. — Where there is no evidence of the (irisoncr's ins '• '■ ', evidence of the insanity of lii.s relatives is irrelevant. undedman to carry him into the house, saying that he had shot him, and was sorry for it. But the wife refusing to let l)im assist, he said he 116 THE LEOAL TEST OF INSANITY. JJriulk'y V. State. had shot him, and was glad of it. The defendant and his wife then stalled with their child to tlie river, and endeavored to get across, first on the ferryboat, and, on being refused a passage, tlien by taking a slciff tiiat was 13'ingon the sliore ; and after putting liis wife and cliild into it and trying to pusli off, he was prevented by tliose present, and said that lie iiad done what he had to tlie deceased in self-defence ; and that he did not want to be arrested on Sunday ; and if they would let him go to Kentucky he would return tlie next day auy the wound; and whether the shot or other causes produced his death, was a question fiercely debated upon the trial. The shot was inflicted, and the deceased died in Switzerland County. If the death should be found to have been caused by the wound in- flicted upon the deceased by the defendant Avith the pistol, then the defence relied upon was, that he was insane at the time the fatal shot was fired, and consequently, incapux doli. I5UADLKY V. STATF,. 117 Kvidfiicos of Insanltv. ife then ss, first T a skiff I into it aid that that he im go to he liad pistol — in, three uilf full, ff by the )lUce, he i avowed it awaj'. amount, • of eight riiis offer leceased, pveral at- hundred carried then he ed some time re- time he Before imbs ro- iVfter his g in, re- )ny tend- id not by lis death, inflicted, onnd in- then the 'atal shot The evidence adduced by defendant upon this point, stated in a vciy general tvuy, ♦.ended to establish tiie following facts: 1. That his mother became and was insane for twenty years before her death, being ;it first wild and maniacal, but as she grew older becoming more quiet, and finally settling into a stale ai)proaching dementia, in wliich condi- tion siic died. The defendaiit was al)outten years old when she l)ecame insane, and was thoncefortii, until he was over twenty, in tiie almost exclusive company of his motlier, who, in her fondness for him, was in the habit of taking him out on the l)anksof the river and spending whole days building houses for him of sticks. 2. That "William Gray, the twin brother of defendant's mother, became insane, and for a long time sought opportunities to destroy his own life, in which, though often prevented by the vigilance of his relatives, lie fmally succeeded, by shooting himself to death. His insanity is traced to no known cause so far as the evidence discloses. IJ. That defendant's sister — half-sister by his father — was also insane, and when last heard from, confined in a lunatic asylum in Connecticut. Her insanity is not well defineil, or rather is not characterized by the Avitnesses ; but it was total and un- doul)ted. 4. That Hugh Maiipel, a c;Hisin of defendant, tjad become insane in consequence of an injury inflicted by a horse tramping upon his head ; but he subseipientl}', partially or wholly recovered. ."). That defendant liimself, when a mere child, had been seized by some disease in the legs, which confined him for live or six j'ears to his room and bed; and when he partially recovered the use of his limbs, he was seized with a disease of the spine, wliich resulted in a great and permanent curvature of the spinal column, and confined him to the house and bed until he was neail}^ or quite sixteen years of ago ; that his sickness had up to that time precluded all attempts to educate him, and, although upon recovery so far as to be able to go about, his father made great efforts to educate him, his mind was so weak and imbecile as to render them utterly unavailing ; that his mind remained that of a mere child ufitil after he was twenty years old; and that being now ovei thirty, he never has accpiired any facilty in reading or writing. The evidence tends \o show that for the last seven or eight years, and according to some of the witnesses, for ten, he had been a constant, hal)itual, and excessive drinker of alcoholic stimulants ; and had been, in fact, dining the seven or eight j'ears immediately before the shoot- ing, constantly drunk — an habitual drunkard. On this point there is almost no contrariety in the evidence. There is evidence tending to show that the small amount of mind he originally had, was, l)y tiiis in- 118 THE LEOAL TKiST OF INISAMTY. BriullL'y V. State. voterato liabit of drunkenness still further weakened and impaired, until his memory was almost entirely destroyed ; one of his attorneys testify- ing that he could not reraembej what might occur in relation to his business between them from oiie consultation to another, although such consultations occurred within a day or two of each other, aixl sometimes even on the same day ; and that when he would have some one writing a letter for him he could not remember what he desired to have written in the letter, after he had begun it. The evidence also showed that, being poor, he had recently before the shooting was done, become the heir or legatee of a wealthy relative, and was hi consequence raised from poverty to opulence in a day. Succecdmg this change in his circum- stances, his habit of drunkenness and its injurious effect on his mind, seem, according to the testimony of some of the witnesses, to have be- come, if possible, more deeply maiked. lie was, just before and during the trial, examined by at least four physicians, who also heard the evidence touching the insanity of his mother, her brother, defendant's sister and cousin, as well as that un- folding his own previous life, habits, and condition, all of whom con- curred in the opinion, which they delivered as experts, that the facts proved in relation to defendant's mother, uncle, sister and cousin, tended strongly to prove that insanity was hereditary in the family of the defendant ; and that the defendant himself wSs insane at the time he shot the deceased. They also tesiifieu, upon a hypothetical case, in- volving substantially the facts proved, and of which there was evidence to go to the jury, that the defendant was insane at the moment of the fatal act ; and that his appearance in court, and at the jail, strength- ened rather than weakened, their conclusion as to his insanity. There was little if any evidence tending to show any cause why the de- fendant shot Evans. Indeed, so far as the evidence disclosed the rela- tions of defendant and deceased, they had alwaj's been friendly, and the act went to the jury apparently without a motive. The State introduced proof tending to show that defendant's mother did not become insane until he was about ten years old ; and that the immediate cause of her insanity was the death of two children who both died at the same time. The State also intro'^uccd evidence of eight or ten, or it may be more, of the defendant's acquaintances and neighbors, who testified that up to the time of the shooting, they had severally known the defendant for a longer or shorter period, had noticed nothing unusual in his manner or appearance, and that they did not regard him as insane. BRADLEY V. STATE. 119 Instructions. mother that the [ho both le more, that up llant for Imanner AVe proceed to the consideration of the charges given by the court, in relation to insanity, and those that on general principles must be held to apply to and give point to the same. They are as follows : — " 2, The law presumes all persons to be of sound mind, and in a charge of murder it is not necessary for the State to prove, to make out the offence, that the accused was not insane. If it is claimed that he was, the defendant must prove the fact in his defence. "4. The act must be done intentionall}'- ; and I instruct you that a sane man is conclusively presumed to intend the natural and probable consequences of his own acts, and the intent to murder is conclusively inferred from the deliberate use of a deadly weapon. " 6. The rule of law is that if from the evidence in the case the jury have a reasonable doubt as to any material fact going to the defence, or necessary to make the cause, the prisoner is entitled to the benefit of the doubt. But you cannot go out of the evidence to hunt for doubts ; hut the doubts, if any exist, must arise out of the evidence in the case. Cy a reasonable doubt in law, is intended this : when the evidence is not sufficient to satisfy the judgment of the truth of a proposition with such certainty that a prudent man would feel safe in acting upon it in Ills own important affairs. And, if the evidence in the case, upon any material point for the State and defence considered, does not satisfy your judgment of the truth of all material propositions in the case, and of the criminal liability of the defendant, with such certainty that a prudent man would feel safe in acting upon said matters in his own im portant affairs, then, in such case, there would be a reasonable doubt in the case, within the meaning of the law as to reasonable doubts in criminal cases. "9. To constitute the defence of insanity so as to excuse the defend- ant from the punishment imposed by law for the offence charged, it is not sufficient to show a weakness of mind only ; but it is necessary to prove such a deprivation of the reasoning and mental powers, at the time of the killing, as shows that the defendant did not know the con- sequences of his act, and that it was a wrong, and that it was illegal. " 10. If the defendant at the time he did the act charged, knew what he was doing, and that it was wrong, and a violation of law, then he is liable to punishment for it like any other person. Tliej'^ will not weigh or consider the different grades of intellect, but will punish the weak as well as the strong in mind — if there exists sufficient mind to know and understand the nature and consequences of the act. "11. "Whether the defendant knew wiiat he was doing at the time r. i 120 THE LKOAL TKST OF INSANITY HnuUi'y v. State. he fired, depends upon all the ovich'ncc in the case; and in tliis cotniec- tion you may consider any attempt, if i)roved, to tlee from the State soon after the doing of tlic act. "12. Vohmtary drunkenness is no excuse for the commission of a crime, and cannot be set up as a defence. " 1.'). Continued drunkenness producing insanit}', may be proved ; and if tlie insanity exists to sucli an extent that the party's mind cannot well determine to d(» the act, or does not know the consequences of his act, and that it is Avrong, then, in sucli a ease, he would not be liable. But a mere voluntary drunkenness, no matter how much it may excite the accused or arouse his passions, is no excuse — if he has mind enough to predetermine the act and to know its consequences. " 14. The fact, if proved, that the mother and uncle of the defendant were insane, is no evidence of the insanity of the defendant ; and with- out otiier proof tending to prov'e tliat defendant v\ is insane at the time he did the act, it must be disregarded by the jury. " 15. Tiie law does not presume the son insane liecause the mother was, nor because otlier relatives were ; and from such facts alone you cannot find insanity in defendant. " 10. The defendant has been permitted to give evidence of his drinking hal)it3 ])efore the homicide ; yet the evidence will be of no avail unless you find him insane at the time of committing the homicide, that is of firing the fatal shot, * * * "22. If the defendant wilfully, anil with premeditated malice, shot Alexander Evans, as charged in the indictment, and inllicted on said Evan's person a wound, and if said wound was ultimately the cause of said Evan's death, the defendant is guilty of murder in the first degree — if he was not at the time insane within the rules laid down herein. * * * "25. The opinions of medical witnesses are admissible in evidence for the consideration of the jury. The opinions of such witness are not to l)e admitted for the purpose of controlling the judgment of the jury, but to be considered for what they are worth in your opinion when con- sidered with the other evidence in the case. "20. If you think from all the evidence in the case- tiiat 3a)u ought to reject the testimony of the medical witnesses or any of them you have the right to do so. "28. If the evidence satisfies you, that any medical witness in the case has voluntarily come from the State of Illinois, to testifj' in behalf of the defendant with the expectation that his exi)enses would be paid by the defendant or others for him ; and if it further satisfies you, that i connc'C- Lhe State jioii of a vcd ; and k1 cannot lonc'os of 1(1 not be [•h it inay has mind lefcndant iiul witli- ; tlie time le mother [xlone you :g of his be of no loniicitle, ice, shot on said cause of le first id down evidence are not the jury, aen cou- ni ouglit licm you ss in the n belialf be paid ou, tluit BRADLEY V. STATK. 121 Instructions the defendant was a stranger to such witness ; you_ may consider tliesc matters in connection with his evidence upon tlu- stand, and all the other evidence in the case in determining what credit you give to his evidence ; and if you believe from his manner of testifying, and the matter of his testimony, and from the evidence in the case, that "ou ought to disregard his evidence, you have the right to do so. " 29. If you find from the evidence that the defendant was not insane at the time of the shooting, but knew right from Avrong, and understood the consecpjences of the act, and had the ca; acity to predetermine to do the act, and did inllict the wound witii premeditated malice, and wil- fully, and intentionally, then he is guilty of murder, no matter whether at a prior time he was sane or insane. " oO. If you find that the defendant was c»f sound mind for tliirt}-- two years next preceding the act, and has been of sound mind ever since the commission of the act, you may consider this evidence in de- termining whether he was sane at the time of the shooting. "32. Mere weakness of mind, when the party knows right from wrong, and knows and intends the effect of his act, will not excuse a iiomicide ; for the law will not weigh degrees of strength of intellect, l)iit only inquire vtiiether the accused knew right ^om wrong — whether ho was capable of wilfully, premeditating, and maliciously doing the act. "33. Questions have l)een asked medical witnesses calling for their opinions upon a hypothetical case, a state of facts supposed b}' counsel to exist; and opinions have been given to such questions ; but because the facts have been supposed to exist by counsel, it is no evidence that they do exist ; and you are to find what if aii}' of the sui)- posed facts have been estal)lished, and if any one is not proved to your satisfaction, then the opinions ui)on such as arc not i)roved can have no application to the case, and ougl't as to them, to be dis- regarded. „ "31. If after considering all the eviilence on tlie subject of insanity, and facts and opinions of witnesses not of the medical profession, as well as of that profession, you are satisfied (with the rule as to reasonable doiil)t as given you) that the defendant was not insane at the time of doing the act charged, then the defence of insanity hs failed, and can not avail the defendant. ' ' The following charges were given by the court on its own motion : — " 13. 1 have already' said to you, in charges asked b}- counsel for the State, that if the defendant committed the act, as charged, and knew what he was doing, and that it was wrong and a violation of law, he is 122 THE LK(!AI. TKST OF INSANITY. Bradley v. State, liable under this iiKlictmciit. Wliile this is the law .ipplicable to the (luestion of sanity generally, it seems that in some cases a broailer principle should be applied. The best exposition 1 can give you upon this subject perhaps will be to give you what is said by a standard author. I quote from 1 IJishop's Criminal Law: — '§ 478. Yet the form of the question of insanity for the jury, stated above, is well in cases where it is admitted that Ihe mental disease or imperfection extends only to the intellectual powers, and the party has full control over liis own actions. How numerous comparatively, these cases are, is a matter of science and fact not here to be discussed. But it is both understood in science, and sometimes recognized in the law, though judges are slow to yield on this point, that the mental and physical machine may slip the control of its owner ; and so a man may be conscious of what he is doing, and of its criminal character and con- sequences, while yet he is impelled onward by a power irresistible. In stich cases, in the language of Lord Denman, " if some controlling dis- ease Avas in truth the acting power within him, which he could not resist, then he will not be responsible.' And the question for the jury, under such a state of the proofs should be so framed as to com- (•rehend this view. ^'§ 479. Let it be remembered, likewise, that this irresistibU; impulse is not always general, but sometimes has reference to a particular class of actions, as for example in ' homicidal iasanity.' 'There is,' says Gibson, C. J., ' amoral or homicidal insanity, consisting of an irresist- ible inclination to kill, or to commit some other particular offence. There may be an unseen ligament pressing on the mind, drawing it to consequences which it sees, but cannot avoid, and placing it under a coercion, which, while its residts are clearly perceived, is incapable of resistance. The doctrine which acknowledges this mania, is dangerous iails relations, and can be recognized only in tiie clearest cases. It OMght to be shown to have been habitual, or at least to have evinced itself in more than a single instance.' Even this doctrine, as thus qualifiedly and guardedly stated is discarded by many judges, as the reader who consults the various cases cited in this chapter will see. This matter, however, is evidently one of evidence, as mentioned in a note to the last section. If really a person is imi)elled by an unseen power which he cannot resist, no court and jury who believe this fact will hold him guilty of a ciime. "14. If it has been proved that the mother of the defendant was insane, and that insanity in the mother raises a strong presumption that it is transmitted to the offspring, yet it rests upon the defendant to HEHEDITAKY INSANITY. 123 le to the , broftder rou upon standard •y, stated lisease or party has ;ly, these led. But I the law, entul and man may ' and con- tible. In oiling dis- co uld not 1 for the \s to com- Impulse is ular class IS,' says n irresist- of fence, ing it to under a pable of langerous lases. It evinced as thus Is, as the will see. Ined in a In unseen Ithis fact [lant was Ition that aidant to What Is a " Reasoimblo Doubt." prove that he was insane at tlu time the act was committed. The facts that the mother was insane, that the twin brother of the mother was also insane, and that a cousin was insane, if proved, would not he sufHcicntof themselves to shov,' insanity in tlie defendant, but are facts strongly tending to show hereditary insanity in the family, anil proper for you to consider with the other testimony in the case, to aid you in determining whether tiie defendant was insane or not when the act was committed. Hut if the proof sliows that tiie defendant's mother became insane after his birth, and her insanity was the result of the loss of two children, and was not in any way the result of a hereditary tendency to Insanity, then the insanity of the mother is entitled to no consideration in determining the question of the defendant's sanity or insanity ; and, so, if the proof shows that the insanity of defendant's cousin, Hugh Manfred, was the result alone of an injury received on the head from the kick of a horse, and not in any way the result of hereditary insanity, in that event Manfred's insanity can throw no light upon the defendant's insanity." Before entering upon a critical examination of each special charge to which an exception was reserved, it may be well to remark that an erron- eous instruction cannot be corrected by another instruction which may state the law accurately, unless the erroneous instruction be thereby plainly withdrawn from the jury. The effect of the conflicting instruc- tions can only be to confuse the jury; and as they must follow one or the other, it is impossible to determine whether the influence of the court ill such a case has been exerted for good or evil. The defendant is en- titled to a plain, accurate, and unquestioned statement of the law from the court. Nothing less than this will satisfy the requirements of the statute. 1 The sixth instruction given at the request of the State is in such lan- guage as, by necessary inference, aflirms the proposition that if the evi- dence satisfies the jury of the guilt of the defendant, with such certainty tiiat a prudent man would feel safe in acting upon such conviction in his own important affairs, then, in such case, there would be no reason- able doubt of the defendant's guilt. Mr. Starkie states it as the law that "a juror ought not to condemn unless the evidence exclude from his mind all reasonable doubt as to the guilt of the accused, and, as has been well observed, unless he is so convinced by the evidence that he woidd venture to act upon that con- viction in matters of the highest concern and importance to his own in- 1 Clem v. State, :il I ml. 480. 194 TIIK LKOAL TKST <)l' INSAMTV. Urmlli-y v. Stiili- terost." ' This rule Is slJited in (liHciissinj^ tlio effect produwd on the iiiltid \ty t'iiTumstuiiUal eviiUMico ; but it iimtters iiothiii<; hy what class of evidence tliis result is attaiiii'd. 'I'here iiiiist lu' this certiiinty of con- viction l)ef(»re a reasonable d()nl)t can he exclnded. And, we ma}' add to Mr. Starkie's delhiition, this (lualitication, that it must he such a conviction of the truth of the proposition that a prudent man would feel safe to act upon the conviction under circumstances where there was iKj compulsion upon him to act at all. In other words, a prudent man, compelled to do one of two things affeclinii; matters of the utmost mouicnt to iiimself, mii^iit, and iloulitless would, do liiat thins^ which a mere preponderance of evidence satisfied hin\ was for the best; and yet such a conviction would fall far short of that HMpiired to satisfy the mind of a juror in a criminal case. It must induce such faith in the truth of the facts which the evidence tends to establish that a prudent man might, without distrust, voluntarily act u[)on their assumed exist- ence in matters of highest import to himself. The test stated by tiie court that the conviction must be such as would induce one to act in regard to his own "important affairs" is loo narrow. It must be sucii a certainty as would justify to the mind action not only in nuvtters of importance, but those of the highest im- port, involving the dearest interests. Nothing short of this can serve as an example of that moral certainty which should alone authorize a verdict of guilty. " Moral certainty," says IMr. Burrill, " is a state of impression produced by facts in which a reasonable mind feels a sort of coercion or necessity to act in accordance with it ; the conclusion pre- sent^>d being one which cannot, morally speaking, be avoided consist- ently with adherence to truth." - This certainty alone excludes all reasonable doubts. One may act in important matters without having reached this degree of rest from doubt; and nothing, therefore, short of the highest personal interests involved should be placed before the juror as a test, when upon his action may depend the life of another. The highest interests of the prisoner being involved in the decision, the juror's supposed action on no matter of mere importance to himself will serve as his guide. Nor would it be proper for the juror to apply the test to matters personal to himself, which are only important considered in comparison with his other affairs. One may, perhaps, lead a life so near on the level that nothing of import disturbs the even tenor of his way. The test must be unifoim; and though, in a special case, the conviction of the de- ' stark Kv. (Sliarswooil), 805. - Burrill Cir. Ev. l'.)'.>. nUKDKN OF I'KOOF. I2r) Undcrstaiulliiii iiml Will. (mI on tlie what class \\y of coii- ' mti}' add 1)0 Hiii'h a nsiii would iR're tlieif ji prtidoiit he utmost \<^ wliicli a t ; and yet satisfy tlu; aith in tlio a prudent noil exist- •h as would rs" is loo tlie mind ii Redf. on Wills, ,V21. UNDEKSTANDING AND WILL 127 lis triune o the un- ice, which ; civilized •ight, and bUions of io.- of an ature and <; lost by inccs arc lity have, lewed at- icy might lie condi- oase may io extend :.'ciiHarit3'^ exhibited eir affec- ! disposi- ire given complete :)ral and ifluence, known lich de- ce, any- natural testa- case of 1 share, without uasion, nee at r'isions, to his iev the Insanity may Affect Both. instrument the necessity of showing that its character is not the off- spring of mental defect, obliquity, or perversion." ' This is a full recognition of the position that the power of volition may be so far impaired by disease that it may be under the control of the perverted affections ; and in sucii a case the act of the testator is declared not his voluntary deed. Why should the influence of disease upon this power of the mind be recognized by the courts in civil cases, :\nd denied when applied to criminal cases? If in the one case the act be declared involuntary because the will is so prostrated by disease as to render it incapable of fol^pwing the understanding, why should the law exact a criminal responsibilitj'' under the same conditions? No one would insist upon limiting the test in the contest of a will to the ques- tion whether the testator know the act he was doing was right or wrong • and yet under this test, enforced in crir inal cases alone, a man might he executed for a homicide whose testament would be avoided on the ground of his insanit}'. The doctrine that insanity may affect not only the understanding, but control also the power of volition, was fairly recognized by Chief Justice Shaw in the case of CommomveaUh v. Ro'jers;'^ although an ap- parent reluctance to be the first to announce a doctrine then regarded as radical has rendered ihe entire opinion more unsatisfactory and confused than any other proi meed l>y that learned judge and distinguished jur- ist. This was again declared by Judge Bukwstku in Commonwealth v. IIiitikelL^hy Chief Justice Pkklky, in i>tate v. Pih.\^ and by this court, ill the case of Stevens v. State.'' We will not attempt to discuss the (V.f*'erent announced chissifications of insanity, — with them we iiavo uot'j .ig to do. Their teclinical names and nice theoretic J. '^''•■.tinctions have long enough confused courts and cast contempt upon the verdict of juries. Iiisanit}' is a disease. The effect it has produced uiion tlie faculties of the reason and will are all we are concerned W'ith. It is no more the province of a court to in- struct the jury as to the effect this disease will produce in a special iuhject, than as to an attack of cholera or fever. The effect wlrch has iicen produced is a question of fact, and to be proved in like manner. Insanity must be recognized as a disease whicli may impair or totally destroy either the understanding or tlie will, or indeed, both ; and all the symptoms of such disease and its effect upon these faculties should go to the jury, and as a matter of fact, they must determine the mental > Id. 515. ' 7 Mete. 500. ' 4 Am.X,aw Rev. 240. « 40 \. II. 399. s 31 Ind. 485. 128 THE LEGAL TEST OF INSANITY. Bnidlt'v I'. State. condiiion of tlie defendant. We are well aware that the docU-iiie of in. sanity h.as been the sliield employed by counsel to cover the most exe- crable crimes, and that juries have disgraced themselves and degraded their office in applying it to the sanest of criminals. In special cases they will not distinguish between insanity and moral depravity. If there ever were a time when truth might be withheld, the temptation would be strong upon us now. But there is no such time in the history of courts. It is our duty to declare the law as we understand it, fully and plainly, and any responsibility for Its misa[)plication must rest upon those who abuse a plain truth. We are satisfied that it is always saftT tl' the law should he well understood, than that it should seem rlolhed in mystery. Indeed, it nnist be evident that the cases where the shield of insanity protects the guilty, are tuosi; alone where the circumstances attending the act appeal so strongly to the symiiathy of the jury that they would ac- quit without even a pi-etext ; where the feelings control the judgment and the moral obligation of their oath, ami fit the triers, if not th:,' tried, for an inquest of insanity. The tenth, eleventh, twenty-ninth, and thirty-second instructions are objectionable, also, as limiting the question of insanity to the under- standing. The instructions in regard to intoxication are correct in the abstract, and cannot be criticised in the absence of more special instructions pre- sented by the defenilant, with the exception of the thirteenth charge, which limits the question of insanit}' to the understanding. Nor do we see any valid objection to the cliarge in regard to hereditary insanity. The thirteenth charge given by the court on its own motion contains an extract from Bisho})'s Criminal Law, which we will not review, ex- cept to remark that the requirement of (Jibson, C. J., therein contained, that homicidal mania, to be recognized, must be habitual, would find very few cases Avliere it could be favorably applied. Before the defence could be available the victim of the mania would doubtless have been confined for life, or executed, in the effort to acouire the h .,bit. The entire sections quoted were not proper for the consideration of a jury. The law that goes to the jury from the court should be given as law, umiueslioned by the opinions of other judges. In regard to the twenty-eighth charge, wherein the court casts dis- credit upon a medical witness, because he may have attended the trial from an adjoining State with the expectation that his expenses would be paid, it must receive our unqualified disappr'^bation. The motive prompting him may have been, and doubtless was, one in the interest of MORAL INSANITY. 129 Anderson v. Statu. humanity and science, and merited no implied censure from tlie court, !i forum where truth should be sought from all sources. The twenty- second charge is also objectionable, as resting upon the sixth charge. The fourth charge contains the same extract from Greenloaf on Evi- dence that was declared erroneous in the case of Clem v. State.^ There is also a point made upon the introduction of evidence, but as this forms only a reason for the granting of a new trial, and the (jues- lion may not be again presented, we will not extend this oi)iniou to examine the ruling of the court thereon. We desire to acknowledge our ol)ligation to counsel for the labor and learning displayed in the pre[)aration of the argument for the appellant. Judgment reversed and the cause remanded for a neiu trial. Elliott, J., without assenting to all the reasoning in the foregoing opinion, concurs in the decision on the points ruled. a jury, as law, Ists dis- he trial )uld be I motive h'cst of MORAL INSAMTY — NEW TRIAL ON GROUND OF NEWLY DISCOVERED EVIDENCE — DEGREES OF CRIME. Andeksson V. State. [43 Conn. 514; L'l Am. Rep. OC'J]. In the Supreme Co.irt of Errors of Connecticut, April Term, 1876. Hon. John Duane Pakk, Chief Justice. (I Ei-iSHA Cakpkxtkk, Lahvette S. Fostku, DwK.UT W. Vai.ui:i:, DwitJIIT LoOM'S, .Judges. 1. Moral mania, i.e., the ilerangemeiit of the nior.il fivcvltics, where it is proved to exist i-hould be considered by llic jury in deterniiiiug the degree of a crime. '.'. New Trial — Newly Disco'^Ciou Svi'icuce. — A. was indicted for murder in the first (k'ircc, and was conviclL'd after offering sonic evidence of l);s insanit. A lu'w trial was iifterwards asked for on the ground o' newly discoverea evidence of his insanity. Held, that it should be granted. ;i. Deifreeh' of Crime. — Though a total want of responsibility on account of insanity be not sliowii, v<"t if tlie prisoner's mind was so far impaired as *o render him incapaljle of a lii'libcratc, premeditated murder, he should be convicted only of murder in the sccoud degree. Petition for a new trial ujion a conviction of murder in the first degree, upon the ground, among others, of newly discovered evidence. J 31 llid. 4!iO 'J 130 THE LEGAL TEST OF IXSANITY. Atulorson i\ Statf The facts are suriicieiitly stated in the opinion of tlio court. Those portions of the opinion devoted to a consideration of the question of tlie power of the court to grant new trials are omitted. L. N". Bhjdcnbiirijh, li. S. Pickett, and ./. Bishop, for petitioner T. E. Doolittle and L. M. Hubbard, for the State. Caui'entkk, J. The charge was murder in tlie first degree. Tlie homi- cide was achuitted ; the vital question being wliether tlie prisoner was in a condition of mind to form a deliberate purpose to take life. The defence claimed that he was not, for the reason that he was insane ; indeed it was claimed that he was not criminally responsible at all. The inquiry there- fore was not merely whether he was irresponsible, but assuming his responsibility the question still remained, was his mind so far impaired, as to raise the presumption that he could not form a wilful, deliberate, and premeditated purpose to take life. The burden was on the State to show not only that the prisoner was capable of committing a crime, but that he was in a condition to plan and execute a cool, delibei-ate murder. The degree of malice essential to murder in the first degree, like the act of killing or an} other material fact, must be proved beyond a reasonable doubt or the jury ought not to convict of the greater offence. Upon that point the jury might have entex'tained a reasonable doubt and at the same time may have been satisfied that the act was a ci'ime and that it was their duty to convict of murder in the second degree. [The court here considered the question c .' the petitioner's negligence in discovering the new evidence and the objection that such evidence was cumulative.] We do not care to state at length the testimony in the case. It seems that the prisoner notified his employers that he should give up his work and they employed others to take his place. He then objected, saying he had not given it up, and insisted that Mr. Norton and Mr. Nettleton, who had been employed in his place, should not go to work. Being a poor man and having a family to support, he became very much excited and caused some trouble in the shop, for which he was arrested. This was on Thursday. Ilis trial was to take place on Saturday. Saturday morning he armed himself with two revolvers, went to the shop, and commenced firing — some of the time with a revolver in each hand — and in a few moments he had shot at no less than four diffeivnt persons. One of the men who took his job, Mr. Norton, was shot at and wounded; the other, Mr. Nettleton, although close liy tlie iirisoner. was not mole -ted. Some ten or twelve persons were present, and the affair occurred in broad day light. Of course there was no attempt at MOTIVE FOR CRIME. 181 court. Those question of tUe )etitioner ;c. The homi- isoncr was in a The defence ; indeed it was e inquiry there- t assuming his far impaired, ful, deliberate, lo prisoner was idition to plan ;nalioe essential , other material jury ought not ury might have may have been luty to convict er's negligence such evidence lase. It seems Ive up his work |bjected, saying r, Nettleton, ■ork. Being a much excited .rrosted. This ay. Saturday the shop, and each hand — 'oifnt persons. shot at ami the prisoner. 'sent, and the no attempt at llolutioiis of Parties Relevant. concealment and hardl}' a possiliilit}' of escape. If the prisoner relloct(>d at all he must have known that detection and punishment were certain. The motive for the crime seems to bo wliolly inade(iuate. His employers had only accepted his resignation, and the men em[)loycd in his stead had only offended in consenting to be employed. How a rational man could coolly and deliberately plan a murder of these parties or of any one of them, as a remedy for an existing evil, is ditlicult to conceive. Revenge, the only other possible motive, rests upon a slight provocation. The indiscriminate nature of the attack makes the whole matter still more mysterious and incomi)rehensihle. Tlie only man killed was one with whom he had had no trouble, and the testimony does Udt show that lie owed him any grudge. Tliis indicates not so much a deliberate in- tention to take the life of some one who liad injured him, as a disposi- tion to destroy life generalh', it mattering little to him who the unfor- tunate one might be. "In a case of homicide the relations existing between the parties are worthy of much consideration. If the person slain wore a parent, a child, a wife, or some near friend or relative, and no particular reason for the act was assigned, it might raise a fair pre- sumiition that it was due to insane impulse. If the individual slain be an object merely of indifference, toward whom no particular feelings either of friends'dp or enmity can be presumed to be entertained, the presumption, although much less strong, is still in favor of its being an insane act. Tlie mere motiveless destruction of life can, with difficulty, be regarded as the act of a sane mind. If, on the cf)ntrary, a motive exist, or if feelings of enmity, originating in no delusion, be entertaine'' toward the person .slain, the presumption will be that it is a sanfe act." ' We look in vain for any mr^tive for taking Hall's life, and it is by no means clear that his death was caused by inadvertence, while attemptino' to take the lives of others. As a fitting close to such a tragedy, the prisoner made two unsticcess- ful attempts to take his own life. It is strange tliat a professed Christian, as the prisoner was — one who believes in future rewards and punish- ments — should deliberately imbrue his hands in the blood of his fellow- man, and then rush unbidden into tlie presence of his Maker and Judge, to receive the punishment due to his crimes. In this age of the world, suicide is regarded by many as conclusive evidence of insanity. Ks- quirol, a celebrated French pliysician, who founded a lunatic asylum in 1799, which became a model for all similar institutions afterwards > Dean'8 Medicul Jurisprudence, 577. 132 THE LEGAL TEST OF INSANITY. Anderson v. State. founded in France, and who published a work on mental maladies, thinks that in all cases the suicidal act is the deed of a monomaniac, and results from a pathological change in the brain or some part of it. However this may be, it is probably true that homicidal mania manifests itself in self-dostruction more frequently than in any other form. In civil causes the act which is the occasion of investigating the men- tal condition of the actor is carefully considered. If it is a rational act, rationally done, it is stro' evidence of a sound mind ; if it is an irra- tional act, or done in an irrational manner, it is regarded as evidence of insanity. INIaking due allowance for temper and passion we see no good reason why the same r.ule should not prevail in criminal jurispru- dence. If so thei'e is certainly to be gathered from this transaction some evidence of an unsound mind. The testimony shows that the prisoner, to use the words of an expert who heard the trial, was a man of " irrital)le temperament, little self- control, a strange man, disappointed in business, out of work, with an increasing family and fear of poverty, and added to all that, dyspepsia and fever and ague." It also appears that he was subject to great nerv- ous excitement, and at times to a corresponding despondency, was easily vexed and annoyed by his fellow-workmen, at one time imagin- ing that they had poisoned the water that he drank and that they had conspired against him for the reason that he was a superior workman, and were endeavoring to deprive him of emi)loyment. In the events which immediately preceded the homicide he spoke of them as trying to kill him and told his wife that he intended to use the pistols which she saw only in sell-defence. His arrest also, about that time, and being held for trial, for a l)reacli of the peace, furtlier excited him. It also appears that during the latter part of the j^ear 187.'), and the first part of the year 1S71, he was greatly changed from what he fcn-merly was, so much so that it was ap[)arent from those wiio knew him and came in contact with him, being a subject of conversation with them. One man refused to emtiloy him, although wanting a man in his line, because he regai'ded hiit. as half crazy. Several others, observing his singular conduct and noticing the change that had come over him, also pro- nounced him crazy. It is also manifest that he was naturally of a ([iiarrelsome disjiosition, and hail a violent temper, which at times was ungovernable. The State denied that there was in all this any indication of insanity ; but accountcfl for it all l>y attributing it to bad temper and pecuHarity of temperament and tlisixisition. Upon all the facts which were i)laced before the jury, giving a large part oi his personal history for the last Y, was luagin- hoy had oikman, events ying to ich she d being It also st part \y was, :une in ne man ause he ■lingular DIFFERENT FOKMS OF INSANITY. Vi3 Moral Mania : Partial or GciuTal. few years. Dr. Butler, the eminent physician who was for thirty years at the head the Retreat for the Insane, at Hartford, pronounced him in- sane. Drs. Jewett and Bacon, of New Haven, two eminent pliysicians of large experience, pronounced him sane. (The court then considered the new evidence offered, and continued.) It is not our [)urpose, nor is it our duty, to apply tliis evidence to any one of the numerous phases of insanity recognized by courts of justicje. Indeed, it is not necessarj' for us to assume that it does or may, in tlie opinion of the jury, establish tlie fact that the prisoner is not crimin- ally res))onsible for his acts. The evidence may fall far short of this, and still satisfy a jury that he ought not to suffer the penalty of the crime of which he was convicted. Perhaps the most usual form of insanity which comes under the cog- nizance of courts of justice is derangement, total or partial, of the intellectual faculties. Tiiere is some evidence in this case indicating delusion, which is the usual and perhaps an essential manifestation of this form of insanity. Should the jury be satisfied of its existence they would probably acquit the prisoner on that ground. As to the sufficiency or insufficiency of the evidence for that purpose we express no opinion. Another form of insanity is a derangement of the moral faculties. In this there is usually, though not always, an entire absence of delu- sion. Moral mania, like intellectual, is of two kinds, partial and general. Instances of the former are kleptomania or jiropensity to steal, pyro- mania or propensity to destroy by fire, and liomkhlal mania. General moral mania " consists in a genei'al exaltation, perversion, or derange- ment of function, of all the affective or moral powers. Those who have observed and written upon this form of ruental alienation, unite in de- scribing those who labor under it as persons of singular, wayward, and fccentric character. Their antipathies are violent and suddenly taken ; their suspicions unjust and severe; and their propensities strong and eagerly indulged. They are generally proud, conceited, ostentatious, easily excited, and obstinate in the maintaining of absurd o|)inions." ' On page 407 is a quotation from Iloffbauer, in which it is described as " a state in which the reason has lost its empire over the passions, and the actions by which they are manifested, to such a degree that the in- dividual can neither repress the former nor abstain from the latter. It does not follow that he may not be in possession of his senses, and even his usual intelligence ; since, in order to resist the impulses of the pas- > Dean's Med. Juris. 400. 134 THE LEGAL TEST OF INSANITY. Anderson v. State. sions, it is not suffloicnt that tlic reason should impart its counsels ; we must have the necessary power to obey them. Tiie maniac may judj^e correctl}^ of his actions without being in a condition to repress his pas- sions, and to abstain from the acts of violence to which they impel him." Tlio subject of moral mania will generally be found to have exper- ienced a great change in temper, disposition and moral qualities, either sudden and dating from some reverse (jf fortune or loss of dear friends or relatives, or gradual and imperceptible, consisting in an exaltation or increase of peculiarities which were always natural or habitual. The moral maniac Avill rarely exhibit any signs of derangement in his conversation. lie will often be regular, systematic, and niethodical in all his business transactions, and, to all appearance, regular in the use of his intellect. One man sees him in business transactions only, or converses with him when he is free from excitement, and he does not hesitate to pronounce him perfectly sane ; another has an opportunity to witness some strange and unaccountable eccentricity of conduct, totally irreconcilable with the possession and exercise of a sound mind. The facts to which these two witnesses would testify arc apparently con- tradictory, and yet they are perfectly consistent when the form of the malady is known. The conversalioa discloses intellectual mania, and the conduct moral mania. We will not undertake to say that the con- duct above referred to, as characterizing one who is afllicted with moral mania, is exactly the conduct of the prisoner ; but the description is certainly applicable to some extent, and when we consider that the manifestations of insanity are as various as characters and tempera- ments, that the insane man is not careful to walk in the footsteps of those who have gone before him, but wanders through moral or intel- lectual darkness, or both, and makes his own path, we are by no means clear that a jury might not with perfect propriety find that the prisoner is morally insane. Upon this point the newly discovered evidence bears with peculiar force, and materially strengthens the evidence given upon the trial. It is true tliat courts have hitherto been slow to recognize this form of insanity as an excuse for crime ; nevertheless, that it exists is well understood, and, in some cases, is clearly defined by medical and scientific men, cannot be denied. It is not our purpose either to ignore or recognize this form of in- sanity as an excuse for crime. The question is not whether an act committed under its influence is criminal ; whether the actor should be punished or be exempt from punishment; hut whether he is a proper subject of capital punishment. If it be conceded that one afflicted I -7 •• MOHAL INSAMTY. I. '{5 Kc'k'vaiit on Decree of Criiiu'. els ; we with it never loses the power to distinguish between rigiit and wrong, J judge L. ; ^- . and is at all times master of himself, and may control his ailions, still at the mpera- teps of Intel- means isoner bears upon ;ognize exists !al and ii'oper lUcted his mind may be enfeebled and the power of his will weakened, so that lie will readily yield to the influence of temptation or provocation with- out that wilful, deliberate, and premeditati'd malice which is essential to constitute murder in the tirst degree. The Jury, therefore, n Fostkk and Paudkk, J.J., concurred; Pauk, C. J., and LooMis, J,, dissented as to the propriety of granting a new trial for newly discovered evidence. MORAL INSANITY, Scott v. Commonwealth. [4 Mete. (Ky.") 227.] Tn the Court of Appeals of Kentucky, Summer Term, 1863. Hon. Alvin DrvAi.L, Chief Justice. •' Joshua F. Bii.mi t, 1 " B. J. Pi:rKi!s, ' Judfips. " R. K. WiM.IAMS j 1. Moral Insanity — When an Excuse for Crime. — Moral insanity existing in such vio- lence as to render it impossible for tlie party to resist its promptings is an excuse for crime. 2. Instructions. — Tlie court instructed the jury that they should not acquit on the ground of moral insanity" unless it had manifested itself in former acts of similar character or like nature to the offence charged." Held, error. ArrEAi. from Mercer Circuit Court. Harlan & Harlan and Hardin & Kyle, for appellant. A. J. James, Attornej'-General, for the Commonwealth. Chief Justice Di'vall, delivered the opinion of the court. This is an appeal from a judgment of conviction rendered by the Mer- ger Circuit Court, at its April term, IHG.'J, against Edward I). Scott, who was indicted for the murder of his stepson, James Tilford. The defence set up on behalf of the prie^ner was that he was insane at the time of the commission of the homicide. MOUAL INSANITY. i.i; Krroiicoiis Iiistrui'tloiis. Mcr- |Scott, insane The grounds mainly relied upon for reversal are, first, that the court erred in instructing the jury; and, secondly, in admitting improper evi- dence. 1. The evidence relating to tlie question of insanity, as set out in the bill of exceptions, is quite voluminous, and need not be stated or re- ferred to here, further than to say that it condueed to sustain the ground of defence relied on, sulHcientlvso at least to authorize the court to instruct the jury iu regard loit. At the close of the evidence, the court, having instructed the jury in sul)Htance, that although they might believe that the accused was un- sound in mind, yet such unsoundness did not justify an acquittal on tlie ground of insanity, unless they believe that tlie accused, at the time of tiie commission of the act, did not know right from wrong in refiT- ciice to the killing of the deceased, or if ho did not know that sui'h kill- inle as a legal excuse for crime must have manifested itself " in former acts of similar character, or like nature, of the offence charged." And, in our opinion, the instruction was to this extent erroneous. 'i lie other objection to the instruction is, that it requires the jury to believe from the evidence, that the moral insanity '" overwhelmed and destroyed the faculties of the mind to such an extent as to render the accused incapable of governing his actions at the time." We are not prepared to say that this, if properly understood, was too strong a state- ment of the principle, or that it was practically injurious to the appel- lant. For in another case cited by "Wharton & Stille, it is said by Judge Lkwis, that "moral insanity arises from the existence of some of the natural propensities in such violence that it is impossible not to yield to them. It bears a striking resemblance to vice, which is said to consist in an undue excitement of the passions and will, and in their irregular or crooked actions leading to crime. It is, therefore, to be received with the utmost scrutiny. It is not generally admitted in legal tribunals as a species of insanity which relieves from responsibility f(ir crime, and it ought never to be admitted as a defence until it is shown that these propensities exist in such violence as to subjugate the intellect, control the will, and render it impossible for the party to do otherwise than yield. Where its existence is fully established this species of insanity relieves from accountability to human laws. But 1 WbartOD & Stille Med. Jur., sect. M. MORAL iNSAxr;"- 139 Must Exist to \ 'lilt Kxtc'tit. acknowl- lized only tual, or at » » * es of this i personal case, it is >iis c'xist- 1 hal)ituai a second r liable to action are Y the legal ;lie i)nnci- [uires that sxcuise for character, inion, the he jury to limed and ender the e are not g a state- he appel- 8 aid by of some le not to is said to in their re, to be d in legal |onsibility intil it is lugate the jrty to do ;hed this s. But n this state of mind is not to be presumed witliout ovidenco, nor docs it usually occur without some premonitory symptoms indicating its ap- proach." ' And it is elsewhere laid down in the same treatise, tliat " it is not to be supposed that a single impulse is diseased while all the other functions of tlie mind retain their healthy action. While tlie entire intellect enjoys sound health *lic're is nothing in which a morbid desire of theft, murder, etc., could originate, and such a phenomenon is a psycohjgical impossibilit}', ami the assumption of such requires a psyco- logical contradiction. A mania sine drliro, a mania without a morbid participation or disturbanie of the percei)tive faculties is, therefore, out of the question, as a ire to injure or destroy is imjiossible without an act of the mind l>y which this purpose is entertained, and as reason and understanding are alike diseased, whether they insinuate a wrong motive for the morbidly conceived puii)use of the act. or whether they entirely omit the suggestion of any reason whatever." - Without going further into the discussion of this abstruse and per- plexing subject, it is u[/i)arent from what has been said that, before this spec-ies of insanity can be admitted to excuse the commission of crime, it must be shown to exist in such violence as to render it impossible for the party to do otherwise than yield to its promi)tii)gs. This is the fun- damental fact to be established to the satisfaction of the jury. And whether this im[)ossibility of resistance arises fnmi a subjugation of the intellect by tiie morbid impulse or i>ropensity, or from an overwhelm- ing and destruction of the faculties of the mind to the extent of rendering the party incai)able of governing his actions, is a point, it would seem, of not much practical importance. We think, however, tliut the form of expression used by Judge Lkwis, in the passage before quoted, more aptly conveys the correct idea, and is therefore less cal- culated to confuse or mislead the jury than that adopted by the coin-t lielow in the instruction we have been considering. Except in the particulars mentioned the court committed no error in giving or in receiving instructions. 2. Nor do we think the court erred in allowing a witness who had been introduced by the defendant to be recalled and examined with the view of laying a foundation for contradicting her testimony in chief, by showing that she had made statements different therefrom. It is unnec- essary to notice this point further, as no such ques^bn will probably arise upon a subsequent trial. > Med. .Jur., sect. 55, » Sect. 177. 140 THE LEGAL TEST OF INSANITY . I'fople r. Finley. For the error mentioned, the jiulj^ment is reversed and the cause remanded for a new trial and further proceedings not inconsistent with this opinion. EMOTIONAL INSANITY — BURDEN OF PROOF — REASONABLE DOUBT. People v. Finley. [38 Mich. 482.] In the Supreme Court of Michvjan, April Term, 1818. Hon. James V. Campbell, Chief Justice. ♦' Isaac Makstov, " Bkn.iamin F. GiJAVEs, dissociate Justice*. " Thomas M. Cooley, 1. Iteasoi.able Doubt. — What in n " reasonable doubt " defined. 2. " Emotional Insanity," i.e., " that convenient form of insanity which enables a person wlio doeB not choose to bridle his passion to allow it to get and keep the upper hand just long enough to enable hiui to commit an act of violence and then subside'' criticised. 3. Burden of Proof. — Kvidence tending to show the prisoner's insanity docs not throw upon the prosecution the burden of ovurbaluuciug it, if it does not raise a reasonable doubt. ExcErxiONS upon a judgment from Newaygo County Kirrhner, Attonie3'-G('neral, for the People. Standish, Fuller & Standish, for the respondent. Campbell, C. J. — Respondent was convicted of an assault, with in- tent to mnrdi'r his wife. The defe-^ce on whicli the questions before us are raised was temporary insanit}'. It is claimed the court below deprived him of tiie benefit of a reasonable doubt. The charge given was in substance that the element of malice was the im- portant element in the case, and must be made out not merely by a preponderance of evidence, but beyond a reasonable doubt. The instruction given as to what was meant by a reasonable doubt ' was one of the clearest and most sensible definitions ' "A reasonable doubt is afair doubt grow- ingout iif the tesliinony in the case ; it is not a mere imaginary, captious.or possible doubt, but u fair doubt based upon reason and rnin- moil sense; it is such a doubt as may leave your minds after a careful examination uf all the evidence in the case, in that condition that you cannot say you have an a'liding niiiviction to a moral certainty of the truth of the charge here made against the respon- dent." INSANITY NOT A LAW TERM. 141 .he cause itent with 5 DOUBT. bles a person 3 upper hand en Bubside" iCB not throw a reasonable :, witli in- befcre us at below B charge the ini- bt merely Ue doubt. leasonablc lefinitions |at condition an a'liding lot the truth Ithereapon- Emotioujil Insanity Criticised. we hnxe ever seen, and such as to be intellijrible to any jury — a merit not aH-ays possessed by the requests to charge which are sometimes made in such cases. And after such an explanation the jury were tuUl not to convict unless they had an abiding conviction to a moral cer- tainty of the truth of the charge. It is claimed, however, that this clear and fair charge was nullified because the court when asked to make a separate charge upon the sub- ject of the mental condition of respondent, is supposed to have quah- lied it injuriously. The court in regard to insanity', charged that the respondent would be blameless in law: (1) if by reason of insanity he was not cai)able of knowing he was doing wrong; or, (2.) if he had not power to resist the» temptation to violate the law. This was correctly charged. The law hns no theories on the subject of insanity. It holds every one responsible who is compos menti.s, or a free agent, and every one irresponsible who is uon compos mentis, or not having control of his mind. Unfortiniately for the administration of justice, persons are sometimes found, who with small experynce and hirge conceit, have succeeded in formulating theories under which, if properly applied, there would be hardly enough sane persons found to sit upon juries «. ; attend to business. If the term insanity, — which it tn:iy be remarked is not a term of the law at all, — is so far enlarged as to include persons who have not only knowledge of wrong, but also Ciipacity to resist it, then it includes persons whom the law deems capa- ble of crime, and is a phrase entirely inapplicable in civil or crim- inal law. There is some reason to suppose, from the frame of this record, that wh.1t the respondent relied on as " temporary or emotional insanity " was that convenient form of it which enables a person who does not choose to bridle his passion, to allow it to get and keep the upper hand just long enough to commit an act of violence, and then subside. We iiad occasion to refer somewhat to this subject in W'lch v. Ware ; ' and we adhere to the views there expressed, that if a person voluntarily allows his passion to be indulged until it gets the temporar}' control over him, he is responsible for the condition in which he thus falls, as a man who becomes voluntarily intoxicated is liable for his drunken vio- lence. It is certainly a strange and unsafe doctrine to tolerate that anytliing should be deemed innocent insanity which in no way affects the inineen overcome, in their minds, ])v adoiiuate proof, if they think the testimony of insanity is tlms overcome, it is difllcult to conceive how they can fwrtiier regard it, or how tbey could entertain a reasoualtle doulit o\\ the case if con- vinced of the falsehood of the only ground on which the defence rested. It certainly is not true that the introduction of testimony of such in- sanity necessaril}' throws any bunlen on tin- prosecution ; for the jury may not regard such ti'stimoii}' of any weight wliatevcr, and m:iy not believe the opinions of the witnesses. It is only wiicre the testimony creates a reas(mable doubt, that tiierc is any occasion to remove the doid)t. We do not understand the charge as at all designed or calcu- lated to qualif}' what had been before said on the general question of proving malice beyond a reasonable doubt. Ncjthing but the defence of insanity had any bearing on the (piestion of malice, which without this could not — as we judge from the record — have been open to any con- troversy. We must take the whole ch.'irge together in construing it, and we cannot conceive that there was any likelihood of the jury being led to a wrong conclusion concerning the meaning of the judge. The particular request which it is complained he did not give is not so ex- plained by facts 'n the record as to show that there would have been any impropriety or n.^ccssity for it after what actually was given. We are notdi3[>osed to criticise with an}' great nicety the omission of courts to give requests which tend to distract the minds of jurors by calling special attention to metaphysical suiitleties or to particular testimoii}'. A jury knows without instruction that it lias a right to con- sider any testimony which has been allowed to go before it, and to draw such inferences as naturally are drawn by each one of the body. When a court calls attention to bits of evidence, or to particular witnesses, more than others, there is some danger that undue prominence will be given to what is so designated. It is at least quite as safe to avoid this prac- tice, unless circumstances appear to retjuir*' it. While, as before suggested, we might find il difficult — even if the charge appeared to involve doubtful theories of law — to hold it error without a more full showing of Its bearing than we can gather from this record, we think that taking the whole charge together there is no rea- son to believe the jury were misled to the prejudice of the respondent. We think judgment should be rendered on the verdict. The other justices concurred. 144 TIIK LKd.M. TKfST t)F I.\!?AMTY, State V. IJruiitloii. MORAL INSANITY DISAPPHOVED — TEST OF INSANITY. StATK V. liUAXDON. [H .Jones (L.) 4(;:!.J 7/1 tlic Supreme Court of North ('(irolinn, June Term, 1862. lloii. HiciiMON'n M. Tkaissox, Chief Justice. " WlI.I.IAM 11. HaTIIK, ) , .' MAr.H.AsK.MAM.vJ'^"'^^'-'- 1. Uoral Insanity Disapproved. — Tlio law (iocs not recognize any moral power compel- ling a man to do whiit hu kuowM to lie wrong. 2. Particular RiKht and Wronpr Test. — The insanity which takes away the criminal (jnality of an act must Ije such as amounts to a menial ilisea-e, ami prevents the uccuscd from knowing the nature and ({uality of the act he was doing. Iiidictmeiit for murder tried before Bailey, J., at Fall Term, 1H61, of Caswell Superior Court. The defendant was indicted for the murder of one William J. Con- nelly, his father-in-law. His counsel contended that though he knew it was wroui; to kill the deceased, yet if he was impelled to the act by a moral power which he could not resist, he was excusable. Verdict guilt}', and judgment of death. The prisoner ajiijcaled. The Attorneif-Gi'uentl and Winston, Sr., for the State. No one appeared for the prisoner. Maxi.v, J. (After passing on other points.) Tiie third and last (juestion made upon the record arises out of proofs, in respect to the mental condition of the prisoner. The record states the prisoner's counsel insisted that, although the pris- oner knew it was wrong to kill the deceased, j'et, if he was impelled to the act by a moral power, which he could not resist, he was excusable The words " mural power " may mean threats, duress of imprisonment, or an assault imperilling life, which is the usual sense of the phrase, or it may mean, some supernatural agency. The former construction would make the j)ositioa of the counsel entirely inapplicable to the case ; we therefore adopt the latter. The position thus interpreted, does not fall within any approved definition of a no)i compos mentis. It assumes that the accused knew the nature of his act and that it was wrong. The law does not recognize any moral power compelling one to " MOKAI- IN.sAM IV " CI! ITKISEU. 145 Kiillit and Wroii;,' Ti.sl. ?C2. wcr compel- tlic criminal I the accused 1, 1861, of ■m J. Con- ic knew it )y a moral uilty, and No one irises out ncr. The the pris- npelled to xcusable isonment, lirase, or istruction the case ; does not entis. It !it it was use one to do what he knows is wrong. "''I'o know thi' ritrciigth of will sutHcient to arrest tiieir rule. — speak of them as irre- sistible, and impotenlly continue under their dominion; l)ut tlie law is far from excusing criminal ticts committed under tlie impuUe of such passions. Toexcuseone from criminal res|)onsiliility the mind must, in the laugiiagi' of the Jmlge below, be insane. The accu>ey the highest authorities. But we do not undertake to lay down any rule of universal application. It seems to be chimerical to attempt to do so from the ver}' nature of things, for insanity is a disease and, as is the case with all other diseases, the fact of its existence is not established by a single symptom, but by a body of symptoms, no particu- lar one of which is present in every case. Imperfect as the rule may lie, it covers a great variety of cases and may aid the tribuiuils of the country in judging of this most difficult subject. The case put of a criminal act committed under the belief that it was commanded by (!od, would fall under the rule. The perpetrator in such would not know he was doing what was wrong, but on the contrary, believe he was doing what was right in obeying a power who had a right to command him. This condition of mind would constitute insane delusion in respect to the particular act committed, and if clearly established by proof of pre- oxistent facts, would excuse from responsibility. It will thus be seen that instructions, in conformity with the argument of prisoner's counsel, ought not to have been given. If the prisoner knew that what he did was wrong, the law presumes that he had the p iwer to resist it, against all supernatural agencies, and holds him amen- able to punishment. There is no error in the instructions actually given upon this subject, and in the absence of any prayer for other specific 10 : 14(> TUh LK(}AL TKST OF INSAMTY, liViii'li /■. ( 'nmiiic'ii\M'altli. iiistnictioiis, tliorc is no oiiiissiniHif whidi tlic prisonef lias a h'<>;!il ri^ht, to cunipliiiii. Tlicic bt'iiig no error found upon the n-coid tliis must he cortiiiivl to the supt-rlor court of law for Caswfll, tli.it the saiil court may proci-eil again to pronoiuice the judgment of the law. Per Curiam. Jnilrfnit'tif ntj\rmed. MORAL INSANITY — BURDP:N OF PROOF — SANITY PRKSl'MKO TO CON- TINUK. Lynch v. Commons kaltil. [77 Pii. St. -.'OJ.J In the Supreme Court of Pennsylvania, 1874. Hon. John M. Rk.\i>, Chief Justicf. " (;i:ou(ii-. SuAU.swooD, " Ih'.MtY W. Williams, " ri.Y.-isr.s Mkiuik, " Da.mi'.i. A CON- |in>onL'r. |inty. liaaricld. ho \v;vs a 11 (if .June. ithson in a defemlant [ill ; he liail '(' put liiiu [ic mayor' > pme a few :. took out Prisoner lUer to the shouhU'i open, hi^ >istor was yoltin<^ (»iit of hcil undressed; lie struck tiie dccoax-d twice with tlie knife whilst ou the bed ; (h'ceasee. unless tlie evidence in connection with the act fairly convinces them that the h'.H Tin: LKOAL TKST OF INSANITY. I.jncU V, C'oininoiiwfaltli. flcffnduiit uiis iniiinlly insane ut tin- iromoiit the iict was ooininittcd. Tliirt point is ri-fused." And the jiidjie iiistructiiiir the Jury said: — " It is >\ but t!iis misfortune is. nevertlu-less, real, and if it carry him to conunit a criminal act, this act is perfectly well motived. In such case it will generally be found that revenge, auger, and kindred emo- tions of the mind constitute the real motive which has occasioned the homicidal act, if such act has been conunitted." * * * The court then read and answered the di'fendiint's i)oints, as before stated, and instructed the jury as to the character and effect of " a reason.able doubt." The jury, July 10, 1872, found the prisoner guilty of murder in the first degree. After a motion for a new trial, which was overruled, the prisoner was, on the isth of January, 1.S73, sentenced to be hung. The prisoner re- moved the record to the Supreme Court by writ of error. Ferguson & Murray f(jr plaintiff in error. T. M. liayne. District- Attorney, and W. D Moore, for the Common- wealth. Rkad, C. J. (After passing on other points.) The third error assigned is to the answer of the court to the defend- ant's first point, which was, " that if ,on the night of the killing, defendant found, or supposed he found, the deceased in bed with defendant's married sister, and was thereby so much '.excited as, for the time, to AN(ir. Nor i.\>.\Mrv ID in ittcd. (U'iMl, the le in this? wIk'U ho ;i()ii, t'Von r, indeed, ' niiinifest !i wifkrd ; pn.ssion, inity, how A. K'tirned nhen it is an uneon- nmu is no ire in dis- does not :i;cr:ite his carry him In snch ilrcd cmo- ioiied tlie as before ect of " a rder in the soner was, risoner re- Common- he defcnd- defendant efendiiut's le time, to ronllimanc'c of Sanity I'rt'siMUfd. ovorwlichn his reason, consoipnco, and jndLrincnt. and cansc liini to net frmii an nncontrollable and irresintihlf impulse, the hiw will not hohi him rispoiisihic." This seems very va<;ne and uncertain, hut the court say: "As the point seems to Jiniount to the proposition that if th«' jirisoncr was tem- porarily insane at th(^ time lie did tiie cuttinp:, he is not. jjuilty of any Ifjial offence, it is alllrmed as an al)stract principle of law. If the de- fen(hint was actually insane at the time, this, of coursi-, relieves him from criminal responsiliility, from whatever cansc tlu; insanity arose. Rut the jury nnist not confound aiijrer or wrath with actual insanity; because, however absurd or nnreasonal)le a n;;iu may act when exceed- inijly anjiry, either with or without cause, if his reason is not actually dethroned, it is no lejjal excuse for viol .i>n of law." There is no error in this answer. The fourth error assijrned is to the answer to the defendant'^ second point, which is: "That, if the jury haw a rcusonaltle doul)t as to the (condition of the defendant's mind at the lime the act was done, he is entitled to the benefit of such doubt, and they cannot coiuict." As to the second i)oint the court said : " The law of the State is, t'at where the killing is admitti'd and insanity or want of Iciral responsiijility is alleu,i;ht not to do, and if :he act was at tin; same time contrary to law, he is punishable. In all cases of thiii kind the jurors ought to bu told that every man is presuinLMl to sane, and to possess a sulllcicnt degree of leason to be responsible for his crimes until the contrary be proved to their satisfacticin ; and that to ostablsh a de- fence on th(! ground of insanity, it must be clearly proved tiiat at the time of commit- ting the act, ihe parly accused w.ns laboring under such a defect of reason, from disease of the mind, as not to know the nature and ({uality of the act he was doing, or as not to know that what he was doing was wrong. 3. A Party LaborinK Under a Partial Delusion must be considered in the same siluatlon, as to responsibility, as if the facts, in respect to which the ilelusion exists, were real. 4. Opinions of Medical Men. — Where an accused person is supposed to bo insane, a medi- cal man, who lias been present in court and heard the evidence, may be asked, as a matter of science, whether the facts stated by the witnesses, supposing them to be true, show a state of mind incapable of distinguishing between right and wrong. May 2r. ; ,Iine I'.t, 1H43. The prisoner had been indictod, for tluit ho, on.thc 2(itli day of Janu- nry, 1843, at the parish of Saint Martin- in-the-Kields, in tlie county of Middlesex, and within t\w jurisdiction of the Central Criminal Court, in and upon one Edward Diiininond, felonionsly. wilfiill\-. and of his malice aforethouglil , did make an as.sanlt ; and that the said Daniel INIcNaghten a certain pistol of tiic value of 20s., loaded and charood with gunpowder and a leaden bidlet (wiiicli pistol he, in his right hand, had and held), to, against, and upon the said Edward Driimmond, feloniously, wilfidly. and of his malice aforethought, did shoot and discharge ; and that the said Daniel IMcNagliten, witii tlie leaden bullet aforesaid, out of the lustol aforesaid, by force of the gunpowder, etc., tiic said Edwai'd Di-ummond. in and upon the back of hiin the said Edward Diiuninoiid, feloniously, etc.. did strike, penetrate, and wound, giving to the said Edward Diim- niond. in and npon tlie back of tlie said Edmund Dnimmond, one mortal wonnd. etc.. of which mortal wound the said E. Dnimmond M NAOIITKN S CASE. 151 -BURDEN ling a party ne delusion, y, or of pro- time he was < that the act ry to law, he I every man jionsible for -tabli^h ade- ! of commit- •cason, from 'as doing, or n the same ision exists, ant", a medl- asked, as a tliem to be rong. 1848. of Janu- )iinty of Court, in is malice Xagliten iipowder leld), to. wilfully. t the said le pistol immond. iiiiously. rd Duni- )nd, one ummoud (liii'f .liivticc 'J'iiiilars cliaru,!' languished until the 25th of April, and thou died; and that by tin- means aforesaid he, the prisoner, did kill and uuirder the said Kdward Drummoud. The prisoner pleaded not guilty. Evidence; having been given of the fact of the shooting of Mr. Diuni- mond, and of his death in consequence thereof, witnesses were called on the part of the prisoner to prove that he was not, at tlu' time of com- mitting the act, in a sound state of mind. The medical evidence was in sul)stauce this: Tliat persons of otherwise sound mind might be effected by morbid delusions; that the prisoner was in that condition: that a person so laboring under a moil)id delusion might have a moral perception of right and wrong, but that in the case of the prisoner it was a delusion which carried him away beyond the power of his own control, and left him no such perception ; and that he was not capable of exercising any control ovi-r acts<^vhich had connection with his delu- sion ; that it was of tlie nature of tiie disease with which tlie prisoner was affected to go on gradually until it had reached a climax, when it burst forth witii irresistil)le inttjusity ; that a man might go on for j'ears quietly, though at the same time under its intluence, but would all at once break out with the most extravagant and violent paroxysms. Some of tiie witnesses who gave tliis evidence had previously examined the jtrisoner; others had never seen him until he !i|)[)eared in coiu't, and they foimeai. (in his chaige). — The (juestion to be de- termined is whether at the time the act in (piestion was committed, the prisoner had or had not the use of his uuilerstanding, so sis to know !hat he was doing a wrong or wicked act. If the jiu'ors sliould be of n|iinion that the prisoner was not sensible, at the time he committed it, that he was violating the laws both of (Jod and man. then he would be ( tititled to a venlict i;i his favor; but if, on the contrary, they were of opinion that when he con.mitted the act he was in a sound state of mind, then their verdict must be against him. Vcrtliii " t>of fjuiltii,'" o» the [iroimd nf innnnity. This Vi'i'dict, and the (|uestion of the nature an Thu «;tli and I'.tli March, l.«4:;: see llans-ardV i>ebatei-, vol. CT, pp. af^^', "14. 152 THE LEGAL TEST OF INSANITY. INIcNiv^hton's Case. On thi> llHli of June the judsjos a1. f Lords, s of law •NE 10. r persons iiliir siib- mmission y to law, of insane )r injury, •y when a ng one or 5si()n of a ce? as to the ed? I commits nity, who sent dur- )e asked ne of the prisoner ontrary on at the le ques- r do not •articular the gen- applica- assumed expcri- arising leard no of these ihe num- nt; and as these and fre- (liiLMit occurrence, tlie answers to tliem by the judges may embarrass the administration of justice when they are cited in criminal trials. Yax tliese reasons I siiould liave been glad if ni}' learned brethren would liave joined me in prating 3'our lordships to excuse us from answering these questions; but, as I do not think they ought to induce mc to ask tliat indulgence for myself individually, I shall proceed to give such answers as I can after the very short time which I have had to consider the questions, and under the dilficulties I have mentioned, fearing that my answers may be as little satisfactory to others as they are to myself. The first (juestion, as I understand it, is, in effect : what is the law respecting the alleged crime when, at the time of the commission of it, the accused knew he was acting contrary to tlie law, but did the act with a view, under the inlluence of insane delusion, of redressing or revenging some supposed grievance or injury, or of j)r()ducing some supposed public beneiit. If I were to understand this question accord- ing to the strict meaning of its terms, it would re(iuire, in order to an- swer it, a solution of all (piestions of law which could arise on the circumstances stated in the (piestion, cither by explicitly stating and answering such fpiestions, or l)y stating some principles or rules which would suffice for their solution. 1 am (luite unal)le to do so, and, in- deed, doul)t whether it be possible to be done, and therefore request to bo permitted to answer the question only so far as it comprehends the question, whether a person circumstanced as stated in the question, is, for that reason only, to be found not guilty of a crime respecting which the question of his guilt has l»een duly raised in a criminal proceeding? and I am of opinion that he is not. There is no law that I am aware of that makes persons in the state described in the (piestion not respon- silile for their criminal acts. To render a person irresponsible tor crime on account of unsoundness of mind, the unsoundness should, according to the law as it has long been understood tmd held, be such as rendered him incapable of knowing right from wroiiii'. 'a he terms used in the usual and |)r<)pc'r to siil)niit sue. I sii'hoidinalc or intt'iinoliato questions, as tlic wiiich the trial lias taken may have inauided by a con- sideration of all the circumsiances attending the inquiry. In perform- ing this duty, it is sometimes necessary or convenient to inform the jury as to the law ; and if <>n a tiial such as is suggested in the (luestion, he should have occasion to state what kind and degree of insanity would amount to a defence, it should be stated conformably to what I have men- tioned in my answer to the first question, as being, in ray opinion, the law on this subject. Third. There are no terms which the judge is b}' law required to use. Tliey should not be inconsistent with the law as above stated, but should be such as in the discretion of the judge are proper to assist the jury in coming to a riglit conclusion as to the guilt of the accused. Fourth. The answer which I have given to the first (jucstion is appli- caltle to this. Fifth. Whether a (luestion can be asked dci)ends not merelj* on the question of fact raised on the record, but on the course of the cause at the time it is proposed t(^ ask it. ann('e, and til at t'le h it irrele- friHiuently rivi'ii. and has never, that 1 am aware of, been successfully objected to. Kvidencc most clearl)- open to this ol)jection, and on the admission of which the evi'nt of a most important trial probably turned, and was received in the case of T/tc Qaocn v. MrNayhten, tried at the ccntial criminal court, in March last, before the Lord Chief Justice, Mr. Justice Wil- liams and Mr. Justice CoLKUiiMiE, in whicli counsel of the highest emi- nence were engaged on both sides ; and I think the course and i)raetiee of receiving such evidence confirmed by the very high authorit}'^ of tliesc judges, who not only received it, but left it, as I understand, to tlie Jury without any remark derogating from its weight, ought to be held to warrant its reception, notwithstanding the objection in principle to which it may be open. In cases even where the course of })ractice in criminal law has been unfavorable to parties accused, and entirely con- trary to the most obvious principles of justice and humanity as well as those of law, it has been lield that such i)ractice constituted the law, and could not be altered without the authority of rarliament. Lord Chief Justice Tixdal. — My lords, her jNIajesty's judges (with the exception of Mr. Justice ]NL\i"Li;, who has stated his opinion t<^ your !ordships), in answering tiie <)uestions |>roposed to thembyj'our lord- sliip's House, think it right in the first place to state that they have for- !iornc entering into any particular discussion upon these ([uestions from the extreme and almost insuperable ditliculty of applying those answers to cases in which the facts are not brought judicially before them. The facts of each particular case must of necessity present themselves witli endless variety, and with every shade of difference in each ease, and as it is their tluty to declare the law upon eacli particular case, on facts proved iteforethem, and after hearing aigument of counsel thereon, they deem it at once impractica])le, and at the same time dangerous to the admin- istration of justice, if it were practicable, to attempt to make minute ap[ilicaiions of the principles involved in the answers given by them to your lordship's questions. l hey have, therefore, confined their answers to the statement of that whi el I they hold to be the law upon the abstract *iuestion8 proi)osed liy 3'our lordships ; and as they deem it unnecessary in this j)articul.Mr case to deliver their o[)inions seriatim, and as all concur in the same opinion, they desire me to express such, their unanimous opinion, to your lordships. rise lirst question proimsed by your lordships is this : '• What is the law respecting alleged crimes con.'nitted by persons afllieted with in- sane .irp particular subjects or persons; loG TIIK LEGAL TK.ST OV INSANITY McXii'jthtfii's Cast! as for instance, wlicre at the time of tlie commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, undor the inlhience of insane delusion, of redrcssiiiu; or revenging some supposed grievance or injury, or of pro- ducing some supposed pul)lic henelit? " In answer to wliich (lucstion, assuming that your lordships' inquiiies are conllned to tliose persons who labor under such partial delusions only, and are not in otiier respects insane, we arc of o[)inion that, notwith- standing tlie party accuseil did tlie act eomphxined of, with a view, under the inlluence of insane delusion, of redressing or revenging some sup- posed grievance or injury, or of producing some public benefit, he is nevcrtlieless punishable according to tlie nature of the crime committed, if he knew, at the time of committing such crime, that he was acting contrary to law, by which expression we understand your lordships to mean the law of the land. Your lordships are pleased to inquire of ussecondl , " What are the propter questions to be submitted to the jury when a person alleged to be alUicted with insane delusion respecting one or more particular sub- jects or persons, is charged with the commission of a crnne (murder, for example), and insanity is set up as a defence? " And thirdly, •" In what terms ought the (juestion to be left to the juiy as to the prisoner's state of niintlat the time when the act was conunitted? " And as these two questions appear to us to be more conveniently answered together we have to submit our opini(jn to ])e, that the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a suflicient degree of reason to be responsil)le for his crimes, until the contrary be proved to their satisfaction ; and that to establish a defence on the ground of insanity, it must be clear!}' proved that, at the time of the conunitting of the act, the party accused was lal)oriiig unde- such a defect of reason, from disease of the mind, as not to !•'!• . J^c nature and quality of the act he was doing, or if he did ;.\ /»v that he did not know he was doing what was wrong. The iri:.>(' '.•'i' putting the latter part of the question to the jury on these occasions has generally been whether the accused at the time of doing the act knew the difference between right and wrong, which mode, though rarely, if ever, leading to any mistake with tiie jury, is not, as we conceive, so accurate when put generall}' and in the abstract, as when put with ref- erence to the party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused solely and exclusively with reference to INSANi: bKLLSIONS. l.H e alleged d the act lusion, of ir of pi'o- |ui:ies are ons only, , notwith- e\v, under ionie siip- lefit, he is »minitted, as acting (Iships to at are the alleged to ■ular sub- ( murder. fdly, '' In prisoner's as these tosifcther )e told in )ossess a until the defence 10 time of • such a ; nature that he v' putting ions has act knew rarely, if ceive, so with ref- !ct to the put as to srence to C. J. Tiiidal's Answer to tlit- Lords. \.\w law of the land, it might tend to confound the jury liy iiidiuing tliiin to believe that an at'tual ixnowledgi' of tlu- hiw of tiic land was essential in order to lead to a conviction, whereas tlie law is adminis- tered upon tlie principle tliat every one must l>e taken oonchisively to know it, witliout j)roof tliat he docs not know it. If tlie accused was conscious that the act was one whicii lie ouiiht not to do, and if tliat act \V!is at the same time contrary to tlie hiw of the laud, he is punishable; and the usual course, therefore, has luen to Icjive the ([uestion to the jniy, whellier the party accusctl liad a suMicient degree of reason to know tliat he was doing au act that was wrong, audtlii>, course we think is c )rr('ct, accorai)aiiied with such obsf.'rvatioiis and exphiiialions as Ihc circumstances of each particular case ma}' reciuire. The fourth question wliich your lordships have proposed to us is this: •' If a person under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused? " To which (luestion the answer must, of course, depend on the nature of the delu- sion ; but making the Riime ^^umpticm as we did liefore, namely, that lie labors under such partial delusion oiil}-, and is not in other resjiects insane, we think he must be considered in the same situation as to re- sponsibility as if the facts with respect to which the delusion exists were real. For example, if, under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inllicted a serious injury to his cliaractir and fortune, and he killed liim in re- venge for such supposed injury, he would be liable to punishment. The question lastly proposed by your lordships is: " Can a medical man, conversant with the disease of insanity, who never s.aw the pris- oner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his oi)inion as to the state of the prisoner's mind at the time of the commission of the alleged crime? or his opinion whether the prisoner was conscious at the time of doing the act, that he was acting contrary to law, or whether he was laboring under any and what delusion at the time? " In answer tiiereto we state to your lordships that we think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the deter- min.ation of the truth of the facts deposed to, which it is for the jury to decide, and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But when the facts i:)8 THE LKUAK TKST Ol INSANITY. Coiiimoinvciiltli /•. l{i>i;crs. arc admitted or not (lisputi'd, and thu qiiostion becomes substantially one of science only, it nr.y be convenient to allow the (juestion to bo put in that fjeneral form, though the same cannot be insisted on as a matter of right. INSANE DELUSION— TEST UF INSANITY — BURDEN OF PROOF — OPINIONS OF EXPERTS. CoMMOMWEALTH >'. RodEKS. [7 Mete. 500; I Bennett & Heard's Lead. Cas. Crim. Law, 95.] In the Supreme Judicial Court of Massachusetts, March Term, 1S44. Hon. Lkmuki, Shaw, Chief Justice. " CuAKi.Ks A. Dkwkv, I j^^^^^^ " Samuel HrnuAKi). • 1. Insane DeluBion — Responsibility. —Where the delusion of a person is such that lb has ureal and llrni belief of tin; existence of a faci which is wholly imaginary, und under that insane belief he does an ucl which would be justilhible if such fact existed, he is not responsible for such act. 2. Test of Insanity. -Capacity and reason sulllcient to enable one to distinguish between right and wron,:;, Mi'l uiidci'sland th(! nature, character, and ('onse<|uences of his act, with mental power sulllcient to api)ly that knowledge to his own case, furnish the legal test of sanity. 3. The Opinions of Medical Men on the stale of mind of the jinsoner are admissible, though they have not personally examined him. 4. Burden of Proof — A jury may tlnd a person insane where the preponderance of the evidence is in favor of his insanity. The defendant, a convict in tlie State i)rison at Charlcstown, Mas- sachusetts, was indicted for the wilful murder of Charles J^incoln thi' warden of the prison, on the l.")th day of June, A. D. 1HJ;», by stab l)ino him with a shoe-knife. Tiie fact of killin('. l,-)!* ^ame was playini; upon him, which he could not long survive; that the warden was going to take him up to the old prison, shut him up, and. keep him there till he was carried out feet first ; that lie cxpresse.i lii.s fears and apprehensions at vaiiinia times to different persons, during the three days prior to tiie homicide and particularly i nd frequently stated that the warden was going to shut him up, and that if' he diil, he should not live three days ; he should be carried out feet first ; and ntlier statements of a like kind. His predominant fear seemed to be that he was to be shut up by the warden, and the c msequence would 1)0 that he should suffer instant death. On the afternoon of the homi- cide the prisoner saw the warden entering the sboj) where he was at work, and under the inllnence of his delusion, which then appeared to lie at its crisis, and in full possession of iiis mind, he probably imagined the time had come for his imprisonment in the old prison, and his con- sequent death ; impelled by a fear of his impending danger, he ruslied upon the object of his fear, and averted his own death, as he supposed, liy taking the life of the warden. Several medical gentlemen and sui)ei'- intendents of insane asylums, some of whom had and others had not, made a personal examination of the prisoner, testified that in their opinion he was uniiuostionably insane. The prisoner's counsel {Georr/e Bcmia, Esq. and George Ttjler BigeloH', Es-j. , afterwards chief justice of the Supreme Judicial Court of INIassachu- setts) claimed upon this and tiie other evidence of the case, that if the jury wore satisfied that the prisoner when hi' committed the homicide, was laboring under a delusion which overpowered his will, and deprived him of self-control, and the act was connected with that delusion, he was entitled to an actpiittal. How entirely that position was sustained b}' the facts and the law, the verdict of accpiittal and the instruction of the court to the jury furnish sufiiciont answer. 'J'lie cliaigo of the court was thus delivered by SiiAW, C'. J. — 111 oiiUt to constitute a crime, a person must have iiiti'llitieiice and capacity enoui;ii to have a criminal intent and [»ur|iose ; ami if his reason and mental powci-s are either so deficient that he has no will, no conscience, or controlling mental power, or if through the over- wiiclraing violence of mental disease, his intellectual iiower is for tl:e lime obliterated, he is not a responsible moral agent, and is not imiiish- nble for crimiind acts. Hilt tlnTO are ONtri'ines easily distinguished, and not to be mistaken. The ditliculty lies belwcen these extremes, in the cases of partial insan- ity, wliore tiie mind maybe clouded and weakened, but not incapable of remembering, reasoning, and judging, or so pervaded by insane delu- ICO THK r.KOAL ri;sr of ix«amty. C'oiniiiDinvfallli r. Koilurs. sion, as to act uiulor lalsc impressions anlical)iu tu all cases, wltcii tin; (iiu'stiuii is oiiu depi'inliiig un slxill and science in any particular department. In (general, it is the opinion of the jury which is to govern, and that is to l)i! formed upon the proof of facts laid J)efore them. Hut some (piestions lie beyond the scope of the ooservatiou and experience of men in general, but arc quite within the observation and experience of those whoso peculiar pursuits and profcs- sioii have brought that class of facts frequently and habitually under their consideration. Shipmasters and seamen have peculiar means of accpiiriug knowledge and experience in whatever relates to seamanship and nautical skill. When, tlu'refore, a question arises in a court of justice upon that subject, and certain facts are proved by other wit- nesses, a shipmaster may ])e asked his opinion as to the character of such facts. The same is true with regard to any (piestion of science, because persons conversant with such science have peculiar means, from a larger and more exact observation, and long exi)erience in such de- partment of science, of drawing correct inferences from certain facts, either observed by themselves or testified to by other witnesses. A familiar instance of the application of this principle occurs very often in cases of homicide, when upon certa'n facts being testified to by other witnesses, medical persons are asked whether in their opinion a particu- lar wound described would be an adetpuite cause, or whether such wound was, in their opinion, the actual cau le of the death, in the par- ticular case. Such question is commonly asked without objection ; and the judicial proof of the fact of killing often depends wholly or mainly upon such testing of o[)inion. It is upon this ground, that the opinions of witnesses, who have long been conversant with insanity in its various forms, and who have had the care and superintendence of insane per- sons, are received as conqicteut evidence, even though they have not had opportunity to examine the particular patient, and observe the symptoms and indications of disease, at the time of its supposed exist- ence. It is designed to aid the judgment of the jury, in regard to the iurtuence and effect of certain facts, which lie out of the observation and experience of persons in general. And such opinions, when they come fi'om persons of great expeiience, and in whose correctness and and sobriet}' of judgment just confidence can be had, are of great weight and deserve the respectful consideration of a jury. But the oi)inion of a medical man of small experience, or of one who has crude and vis- ionary notions, or who has some favorite theory to support, is entitled to very little consideration. The value of such testimony will depend mainly upon the experience, fidelity and impartiality of the witness who gives it. OI'IMONS OK EXI'KKTS. i6;i UiiittMl StatcM V. (iiiltcaii. inil lull', Hkill anil [)iiii(>n of proof of pe of i\w •ithiu the d profcH- lly under means of [vnianship court of other Mit- iracter of f science, ana, from such de- tain facts, esses. A very often p by other a \)articu- UT such the par- tion ; and or mainly opinions ts various isane per- have not iserve the sed cxist- rd to the jscrvation hen they tness and at weight )pinion of i and vis- s entitled 11 depend } witness Ono caution, in ro}»ard to tliis point, it is proper toijivc. Kven where the mt'(llcul or other professit)iial witnesses have attended tlie wljole trial, and lieard tlie testimony of the oilier witnesses, as to the facts and circumstances of tlic ease, they am iu»i, to judge of the credit of the witnesses or of the trutli of the facts testified l)y others. It is for the I jury to decide wliother such fads arc satisfactorily proved, and tl»c proper (pieslion to be put to tlie professidiiul witness is this: if the symptoms and indications testilied to by other witnesses are proved, and if the jury are satisfied of the truth of them, whether in their opin- ion, the party was insane; and what was the natme and character of that insanity ; what state of mind did they indicate ; and what they would expect would be the conduct of such a person in any supposed circumstances. ' The jury, after being in consultation several hours, came into court and asked instructions upon these two questions : "Must the jury be satisfied, beyond a doubt, of the insanity of the prisoner, to entitle him to an acquittal? And what deirree of insanity will amount to a justifi- cation of the offence." In answer to the first of these questions, the chief justice repeated his former remarks on the same point and added, that if the preponderance of the evidence was in favor of the insanity of the prisoner, the jury would be authorized to find him insane. In answer to the second ques- tion the chief justice added nothing to the instructions which he had previously given. The jury returned a verdict of " not guilty, liy reason of insanity." INSANE DELUSION — DISTINGUISHED FROM ERRONEOUS OPINION- burden of proof — test of insanity — evidence. United States v. Guiteau. [lOFed. Rep. 161.] In the United States District Court for the District of Columbia, 1881. Before Mr. Justice Cox. 1 Burden of Proof of Insanity on Prisoner. — Where the defence o{ inianity is set up as an excuse for crime, the burden of proving it is on the person aUeging it. The pre- sumption is that he is sane. 1 See 1 M. & It. 75. 164 THE LEGAL TEST OF INSANITY. United States v. Guitcuu. 2. Insanity — Evidence. — On the trial of the sanity of a person, evidence of his previoas and subsequent condition is admissible. 3. Insanity of Relations. — And in connection with evidence of his own insanity, testi- mony showing insanity of liis parents or immediate relatives, is relevant. 4. The £nornxity of the Crime, or the absence of motive, is no evidence of insanity. 5. The Test of Responsibility where tlie defence of insanity is interposed, is whether the accused had siitlii^ient use of liis reason to understand the nature of the act, and that it was wrong for him to commit it. (>. Declarations of Prisoner— Evidence. — The prisoner's unsworn declarations are not admissible iit his favor, though admissible us against him. 7. Insane Delusion— Defence.— An insane delusion is an unreasoning and incorrigible belief in the existence of facts which are either impossible absolutely, or impossible under the circumstances of the individual. 8. Opinions or Beliefs founded on reasoning and reflection arc not insane delusions nor within the law regarding them. I The prisoner, Charles J. Guiteau, was indicted for the niui'der of James Abram Garfield, President of the United States, on July 2, 1881. The assassination "vvas admitted, and the plea of insanity set up. After a long and tedious trial. Judge Cox on this day (January 25, 188"^), charged the jury as follows : — Gentlemen of the Petit Juri/: — The Constitution of tlie United States provides that " in all criminal prosecutions the accu.sed shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ; * * * to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him : to have compulsory process for obtain- ing witnesses in his favor; and to liave the assistance of counsel for his defence." Tiiese provisions are deemed the indispensable safeguards of life and liberty. They are intended for the i)rotecti<»n of the inno- cent from injustice and oppression. It is only by their faithful observ- ance that guilt or innocence can be fairly ascertained. Every accused pei'son is presumed innocent until the accusation be proved, and until such proof no court dare to prejudge his cause or withhold from him the protection of this fundamental law. With what difficulty and trial of patience this law has been administered in the pi'esent case, you bnve been daily witnesses. After all, however, it is our consolation that not one of these sacred guarantees has been violated in the person of the accused. If he be guilty, no man deserves their protection less than lie does. If he be innocent, no man needs their protection more, and no man's case more clearly proves their beneficence and justice. At length the long chapter of proof is ended ; the task of the advo- cate is done ; and the duty now rests with you of determining, with UNITED STATES V. GUITEAU. 165 Public Opinion Irrelevant. such aid as I can affofd j'ou, the issue between puhhc justice and llie prisoner at tlie bar. No one can feel more Iveenly than I do the gravo responsibility of my duty ; and I feel that I can onl}-^ discharge it by a close adherence to the law as it has been laid down by its higliest autiior- ized expounders. Before proceeding, I wish to interject a remark here upon an ei)isode in tlie trial pending the last argument. The prisoner has taken repeated occasions to proclaim that pubUc opinion, as evidenced by the press and by his correspondence, is in his favor. As you well know, these dechi- rations could not have been prevented except 1)3' resorting to the process of gagging him. Any suggestion that you could be influenced by this lawless babble of the prisoner, would have seemed to me simpl}' absurd, and I should have felt that I had almost insulted j^iur intelligence if I * had warned you not to regard it. The counsel for the prosecution have been rebuked for allowing tliese declarations to go to j'ou without contradii>tion, and in the course of tlie final argument the}' felt it neces- sary tg interi)ose a contradiction to these declarations of the prisoner, and the latter's counsel excepted to the form in whicli the contradiction was made. For the sole purpose of purging this record of any appar- ently objectionable matter, I would simi)ly say. here, that nothing that has been said in reference to public sentiment or newspaper opinion, on either side, is to be regarded by you, although I reall}' feel that such an adjnonition from me is totally unnecessary. This indictment charges the defendant with having murdered James A. Garfield. It l)f comes my duty, in the first place, to explain to you the nature of the crime charged. With us, murder is committed wiieii' a person of sound memory and discretion unlawfully kills a reasonal»le creature in being, and in the peace of the United States witli malice aforethought. It must of course be proved, first, that the death was caused by the act of the accused. It must be further shown that it was c.uised with malice aforethought ; but this does not mean that the government must prove any special ill will, hatred, or grudge, on the part of the prisoner, towards the deceased. Whenever a homicide is shown to have lieen committed without lawful authority and witli delib- erate intent, it is sufficiently proved to have been done wilii malice afore- thought. And this evidence is not answered and malice is not disproved by showing that the accused had no personal ill will against the deceased, but killed him from some other motive, as for purpose of roblieiy, or by mistaliing him for another, or, as alleged in this case, to produce a public benefit. If it could be shown that the killing occurred in the heat of passion and on sudden cpiarrel, and under provocation from the 166 THE LEGAL TEST O!^ INSANITY. United States v. Guiteau. deceased, then it would appear that there was no premeditated intent, and consequently no malice aforethought ; and this would reduce the crime to manslaughter. But it is hardly necessary to say that there is nothing of that kind in the present case. You will prol)ably see that eitlier the defendant is guilty of murder or he is innocent. But, in order to constitute the crime of murder, the assassin must have a responsibly sane mind. The technical term, " sound memory and discretion, " in the old common-law definition of murder, means this. An irresponsibly insane man can no more commit murder than a sane man can do so without killing. His condition of mind cannot be separated from the act. If he is laboring under disease of his mental faculties — if that is a proper expression — to such an extent that he does not know what he is doing, or does not know that it is wrong, then he is wanting in that sound memory and discretion which make a part of the definition of murder. In the next place, I instruct you that every defendant is presumed innocent until the accusation against him is esta])lished by proof. In the next place, notwithstanding tliis presump- tion of innocence, it is equally true that a defendant is presumed to be sane and to have been so at the time when the crime charged against him was committed ; that is to say, the government is not bound, as a part of itc proofs, to show, aflirmatively, that the defendant was sane. As insanity is the exception, and most men are sane, the law presumes the latter condition of everybody until some reason is shown to believe the contrary. The burden is therefore on the defendant, who sets up insan- ity as an excuse for crime, to bring forward his proofs, in the first instance, to show that that presumption is a mistake as far as it relates to liim. The crime, then, involves three elements, viz. : The killing, malice, and a responsible mind in the murderer. But after all the evidence is in, if the jury, while bearing in mind both these presumptions that I have mentioned, — i.e., that tlie defendant is innocent till he is proved guilty, and that he is and was sane, unless evidence to the contrary appears, — and considering the whole evidence in the case, still entertain what is called a reasonable doubt, on any ground (either as to the killing, or the responsible condition of mind), whether he is guilty of the crime of murder, as it has been explained and defined, then the rule is that the defendant is entitled to the benefit of that doubt and to an acquittal. But here it becomes important to explain to you, in the best way that I can,' what is a reasonable doubt. I can hardly venture to give you an exact definition of the terms, for I do not know of any successful attempt to do so. As to (juestions WHAT IS A " REASONABLE DOUBT. 1()7 Tlie riirase Defined. relating to human affairs, a knowledge of which is derived from testi- mony, it is imi)ossible to have the sanie kind of certainty which is created by scientific demonstration. The only certainty yon can liave is a moral certainty, which depends upon the confidence you liavc in the integrity of witnesses, and tiieir capacity to know the truth If, for example, facts not improbable are attested by numerous witnesses who are credible, ccmsistent, and uncontradicted, and who had every oppor- tunity of knowing the truth, a reasonable or moral certainty wotdd be inspired by their testimony. In such case, a doubt would bo unreason- able, or iniaginarj', or speculative, which the books say it ought not to be. And it is not a doubt Avhetlier tlie party may not poi,iibli/ be inno- cent in the face of strong proof of his guilt, but a sincere doubt whether lie has been pi'oved guilty, that is called reasonable. And even where the testimony is contradictorj'^, so mucli more credit maybe due to one side than the other, tlu\t the same resnlt will be produced. On the other hand, the opi)osing proofs uuiy be so nearly balanced that the jury may justly doubt on which side lies the truth, and, in such case, the accused party is entitled to the benefit of the doubt. As certainty advances, doubt recedes. If one is leasonably certain, he cannot, at the same time, be reasonably doubtful, i.e.., have a reasonable doubt, of a fact. All that a jury can be expected to do is to be reasonably or morally cer- tain of the fact which they declare by their verdict. As Chief Justice Shaw says, in Com. v. Webster: ' " For it is not sufficient to establish a probability, thoi:gh a strong one, arising from the doctrine of chances, lluit the fact ciiarged is more likely to be true than the contrary ; but the evidence must estalilish the truth of the fact to a reasonable and moral certainty, a certainty that convinces and directs the understand- ing, and satisfies the reason and judgment of those who are bound to act conscientiously upon it." With regard to the evidence in tiiis case, very little comment is re- quired from tlie court, except upon one question, the others being hardly matters of dispute. That the defendant fired at and shot the deceased President is abundantly proved, if you believe the testimony. That the woutid caused the death has been testified to by the surgeon-* most competent to speak on that subject, and they are uncontradicted. That the homicide was committed witli malice aforethought, if the de- fendant was capable of criminal intent and malice, can hardly be gain- said if you will bear in mind what I have already said. It is not necessary to prove that any special and express hatred or malice was 1 5Cush.320. I 168 THE LEGAL TEST OF IN.SAXITV. United States r. Guiteau. enttTtaineil 1)}' tlie accused towards the deceased. It is sufflcicnt to prove that the act was done with delilierate intent, as distinct from an act done under tlie sudden impulse of passion, and in the lieat of blood, and without previous malice. J^videuce has been exhibited to you tending to show that the defendant, in liis own hand- writing, admitted that he had conceived the idea of removing the Presi- dent, as he calls it, some six weeks before the shooting, and had delib- erated upon it, and come to a determination to do it, and that about two weeks before he accomplished it, he stationed himself for the pur- pose, but some relentintrs delayed tlie attempt. His preparation for it b}'^ the purchase of the pistol has been detailed to you. All these facts, if believed by you, come up to tlie full measure of proof required to establish what the law denominates viulice oforethoiK/Jit. And thus, I apprehend, that you will have little dilficulty in reaching a conclusion as to all the elements that make ui) the crime charged in the indictment, unless it be the one of "• sound memory and discretion," as it is called, which is only a technical expression for a sound mind. We now approach the difficult question in this case. I have said that a man who is insane, in a sense that makes him irre- sponsible, f annot commit a crime. The defence of insanity has been so abused as to be brought into gj-eat discredit. It has been the last resort in cases of unquestionable guilt, and has lieen the excuse to juries for acquittal, wh(Mi tiicir own and the public sympathy have been with tiie accused, and es :ecially when the provocation to homicide has excused it according to i)ublic sentiment, but r.ot according to law. For those reasons it is viewed with suspicion and disfavor whenever public sentiment is hostile to the accused. Nevertheless, if insanity be established to the degree that has been alread}', in part, and will here" after further bo explained, it is a perfect defence to an indictment for murder, and must be allowed full weight. Now, it is first to be observed that we are not troubled in this case with any question about what may be called total insanit}', such as raving mania, or absolute imbecility, in which all exercise of reason is wanting, and there is no recognition of persons or things, or their relations. But there is a debatalile border-line between tlie sane and tlie insane, and there is often great diificulty in determining on which side of it a party is to be placed. There are casea in which a man's mental faculties generally seem to be in full vigor, but on some one subject he seems to be deranged. He is possessed, perhaps, with a belief which every one recognizes as absurd, which he has not reasoned himself into, and cannot be reasoned out of, which we call an insane TARTIAI. INSANITY. i(;j> CriiiK' Must he Hi'sull of Iiisaiiitv Eicicnt to distinct and in las been \-y\ hand- lie Presi- Lid delib- lat about the pur- ion for it ise facts, luired to 1 thus, I )nclusion lictment, is called, We now him irre- has been the last cuse to ave been icide has to law. he never anity be vill here' ment for ;his case such as cason is or tlieir ane and )n wliich a man's 3me one . with a oasoned \ insane (lehision, or he lias, in addition, some morbid propensity, seemingly in liarsh discord with the rest of his intellectual ami moral nature. These are cases of what, for a bettor term, is called partial insanity. Some- times its existence, and at other times its limits, are doubtful and unde- finable. And it is in these eases that the difBculty arises of determining whether the patient has passed the line of moral or legal accountability f(»r his actions. You must bear in mind that a man does not become irresponsible by the mere fact of being partially insane. Such a man does not take leave of his passions by becoming insane, and may retain as much con- trol over them as in health. lie may commit offences, too, with which his infirmity has nothing to do. lie may be sane as to his crime, understand its nature, and be governed by the same motives in regard to it as other people ; while, on some other subject, having no relation to it whatever, he m"-' be subject to some delusion. In a reported case, a defendant was convicted of cheating by false pretences, but was not saved from punishment by his insane delusion that he was the Inwful son of a well known prince. The first thing, therefore, to be impressed upon you is, that wherever this partial insanity is relied on as a defence, it must appear that the crime charged was the product of the delusion, or other morbid condition, and connected with it as effect with cause, and not the result of sane reasoning or natui al mo- tives, which the party may be capable of, notwithstanding his circum- scribed disorder. The importance of this will be appreciated by you further on. But, assuming that the infirmity of mind has had a direct influence in the production of crime, the ditficulty is to fix the degree and char- acter of the disorder which, in such case, will create irresponsibility in law. The outgivings of the judicial mind on this subject have not always been entirely satisfactory or in harmony with the conclusions of nu'dical science. Courts have, in former times, undertaken to lay down a law of insanity without reference to and in ignorance of the medical aspects of the sul)ject, when it could only be properly dealt with through a concurrent and harmonious treatment by the two sciences of law and medicine. They have, therefore, adopted and again dis- carded one theory after another in the effort to find some common ground where a due regard for the security of society and humanity for the afllicted ma}' meet. It will be my effort to give you the results most commonly accepted by the courts. It may be well to say a word as to the evidence by which courts and juries are guided in this dillicult and deUcate inquiry. That subtle 170 Tin: LEGAL TKST OF LNSANITY. United Stntt's v. (iviiteiui. essence which wc call " mind" delies, of course, ocular inspection. It can ouIn' be known ])y its outward manifestations, and they are found in the language and conduct of the man. By these his tlioughts and emotions are read, and according as tlie}' conform to the practice of people of sound mind, who form tlie large majority of mankind, or con- trast harshly with it, we form our judgment as to his soundness of mind. For this reason evidence is admissible to sliow conduct and lan- guage at different times and on different occasions, wlfich indicate to the general mind somemorVud condition of the intellectual powers ; and the more extended the view of the person's life the safer is the judgment formed of him. Everything rehiiiug to his physical and mental his- tory is relevant, l)ecause any conclusion as to his sanity must often rest upon a large number of facts. As a part of the language and con- duct, letters spontaneously written afford one of the best indications of mental ccnidition. Evidence as to insanity in the parents and imme- diate relatives is also pertinent. It is never allowed to infer insanity in the accused from the mere fact of its existence in the ancestors. But wlien testimony is given directly tending to prove insane conduct on the part of tiie accused, this kind of proof is admissible as corroborative of the other. And, therefore, it is that the defence have been allowed to introduce evidence to you covering the whole life of the accused, and reaching to his family antecedents. In a case so full of detail as this I should deem it mj^ dut\' to you to assist you in weighing the evidence by calling your attention to particu- lar parts of it. But I wish you distinctly to understand that it is your province and not mine, to decide upon the facts, and if I, at any time, seem to exjjrcss or intimate an opinion on them, which 1 do not design to do, it will not be binding on 3'ou, but j^ou must draw your own con- clusions from the evidence. The instructions that have been given you import, in substance, that the true test of criminal responsibility, where tlie defence of insanity is interposed, is wliether tlie accused had sufficient use of his reason to understand the nature of the act with which he is charged, and to under- stand that it was wrong for him to commit it ; that if this was the fact he is criminally responsible for it, whatever peculiarities may be shown about him in other respects ; whereas, if his reason was so defective, in conseciuence of mental disorder, generally supposed to be caused by brain disease, that he could not understand what he was doing, or that what he was doing was wrong, he ought to be treated as an irresponsi- ble person. Now, as the law assumes every one at the outset to be sane and re- '■ h e II ENOILMITY OF CHIME. 171 Or Absence of Motive no Presumption of Insanity ;tion. It ire found iglits and act ice of 1, or con- ndness of ; and lan- idicate to r'ers ; and judgment ontal his- ust often and con- cations of ,nd iinnie- nsanity in ors. But net on the )orative of [illowed to ised, and to you to particu- t is j'our ny time, ot design own con- ance, that nsanity is reason to ;o under- the fact 36 shown ctive, in aused by , or that responsi- ; and re- sponsible, the question is, what is there in this case to show tlie contrary as to this defendant? A jury is nut warranted in inferiing that a man is insane from tlie mere fact of his committing a crime, or from the enormity of the crime, or from the vere uiq)nreHt absence of adecpiate motive for it, for the hiw assumes tliat there is a l)ad motive — that it is prompted by malice — if notiiing else appears. l*erhaps tiie easiest way for you to examine into this subject is, Jirst, to satisfy youiselves about the condition of tiic prisoner's mind for a considerable period of time l)efore any conception of the assassination entered it, and at the pres- ent time, and then to consider what evidence exists as to a different condition at the time of tiie act charged. 1 shall not spend any tinie on tiie first question, because to examine it at all would re(iuire a review of evidence relating to over twenty years of the defendant's life, and this has been so exiuuistivcly discussed by counsel thai aii^'thing 1 could say would be a wearisome repetition. Suflice it to say, that, on one side, this evi- dence is supposed to show a chronic condition of insanity for many years before the assassination ; and, onlhe (jtlier, to show an exceptionally quick intellect and decided power of discrimination. You nuist draw ^our conclusions from the evidence. Was his orduiary, permanent, chronic condition of mind stich, in consecpience of disease, that he was luiable to understand the nature of his actions, or to distinguish between right and wrong in his conduct? Was he subject to insane delusions that destroj'ed his power of so distinguishing? And did this contimie down to and eml)race the act for which he is tried? If so he was simply an irresponsible lunatic. Or, on the otiier hand, had he the ordinary intel- ligence of sane people, so that he could distinguish between right and wrong, as to his own actions? If another person had committed the assassination, would he have appreciated the wickedness of it? If he liad had no special access of insanity impelling him to it, as he claims was the case, would he have understood the character of such an act, and its wrongfulness if another person had suggested it to him? If you can answer these questions in your own minds it may aid you towards a conclusion as to the normal or ordinary condition of the prisoner's mind lief ore he thought of this act ; and if you are satisfied that his chronic or permanent condition was that of sanity, at least so far that he knew the character of his own actions, and whether they were right or wrong, and was not under any permanent insane delusions which destroyed his power of discriminating between right and wrong, as to them, then the only inquiry remaining is whether there was any special insanity con- nected with this crime; and what I shall further say will be on the assumption that you find his general condition to have been that of sau- 172 THE LEGAL TEST OF INSANITY. UiiiU'il States v. Guituau. ity to the extent I have mentioned. On this assumption it will be seen that the reUance of tlie defence is on the existence of an insane delusion in the prisoner's mind, which so i»erverted his reason as to incapacitate him from perceiving the difference between right and wrong as to this particular act. As a part of the history of judicial sentiment on this subject, and by way of illustrating the relation between insane delusions and responsi- bility, I will refer to a celelu'ated case in Englisli history already freely commented on in argument. Nearly forty years ago, one McNaghten was tried in England for killing a Mv. Drummond, private secretary of Sir Robert Peel, mistaking him for the premier himself. He was ac- quitted on the ground of insanity, and his acquittal caused so much ex- citement that the House of Lords addressed certain questions to the judges of the sui)erior courts of England in regard to the law of in- sanity in certain cases, and their answers have been since regarded as settling the law on this subject in England, and, with some qualification have been approved in the courts of this country. One of the ques- tions was : — " If a person, under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused ? " To which it was answered, that — " In case he labors under a partial delusion only, and is not in other respects.insane, he must be considered in the same situation, as to re- sponsibility, as if the facts with regard to which the delusion exists were real. For example, if under the intluence of his delusion he supposes another man to be in the act of attempting his life, and he kills that man, as he supposes, in self-defence^ he would be exempt from punish- ment. If his delusion was that the deceased had inflicted a serious in- jury to his character and fortune, and he killeil him in revenge for such supi)Osed injury, he would be liable to punishment." This, you will understand, was because it was excusable to kill in self-defence, but not to kill in revenge for an injury. This has been '.n part recognizeil as law in this country. Thus Chief Justice Shaw, of Massachasetts, in the case of Commomvealth v. Mogei's,^ says : — " Monomania may operate as an excuse for a criminal act " when the ** delusion is such that the person under its influence has a real and firm belief of some fact, not true in itself, but which, if it were true, would excuse his act : as when the belief is that the party killed had au I ki b( ' 7 Mete. 50(). INSANE DELUSIONS. 173 will be seen ine delusion incapacitate ig as to this iect, and by lid responsi- ready freely McNaghteti iccretary of lie was ac- jo much ex- ions to the le law of in- regarded as qualification if the ques- ts, commits lot in other 1, as to re- exists were le supposes le kills that om punish- serious in- ■)t' for such e to kill in Thus Chief mvealth v. when tlie a real and were true, led had au Distinguislied from Erroneous Opinions. i immediate design upon his life, :uid under that belief the insane man kills in supposed self-defence. A common instance is, where he fully believes that the act he is doing is done by the immediate command of (lod, and he acts under the delusive but sincere belief that what he is doing is by the command of a superior power, which supersedes all human laws and the laws of nature." The cases I have referred to furnish an introduction to the subject of insane delusions, which plays an important part in this case, and demands careful consideration. We find it treated, to a limited extent, in judi- cial decisions, but learn more about it from works on medical jurispru- dence and expert testimony. Sane people are said sometimes to have delusions, proceeding from temporary disorder and deception of the senses, and they entertain extreme opinions which arc founded upon insutlicient evidence, or result from ignorance, or they are speculations on matters beyond the scope of human knowledge ; but they are always susceptil)le of being corrected and removed by evidence and argument. But the insane delusion, according to all testimony, seems to be a" unreasoning and incorrigible belief in the existence of facts which arc either impossible absolutely, or, at least, impossible under the circum- stances of the individual. A man, with no reason for it, believes that another is attempting his life," or that he himself is the owner of untold wealth, or that he has invented something which will revolutionize the world, or that he is President of the United States, or that he is God or Christ, or that he is dead, or that he is immortal, or that lie has a glass arm, or that he is pursued by enemies, or that he is inspired by God to do sometiiing. In mist cases, as I understand it, the fact believed is something affecting the senses. It mav ;ilso concern the relations of the party with (jthers. But generally the delusion centres around himself, his cares, sufferings, rights, and wrongs. It comes and goes independently of the exercise of will and reason, like the phantasms of dreams. It is, in fact, the waking dream of the insane, in which facts present themselves to the mind as real, just as objects do to the distempered vision in delirium tremens. The important thing is that an insane delusion is never the result of reason- ing and reflection. It is not generated by them, and it cannot be dis- pelled by them. A man may reason himself, and be reasoned by others, into absurd opinions, and may be persuaded into impracticable schemes and vicious resolutions, but he cannot be reasoned or persuaded into insanity or insane delusions. Whenever convictions are founded on evidence, on comparison of facts and opinions and arguments, they are not insane delusions. 174 TlIK LKOAI, TKST OF INSANITY. Uniti'd Sliitts V. (;iiit»!iiii. Tin; insane delusion docs not relate to mere sentiments or theories or abstract questions in law, polities, or religion. All these are the sub- jects of (>pinio7iH, which are beliefs founded on reasoning and reflection. These opinions arc often absurd in the extreme. ]\Ien believe in animal magnetism, spiritualism, and other like matters, to a degree that seems unreason itself, to most other people. And ihere is no absurdit}' in relation to religious, political, and social (piestions that has not its sincere supporters. These opinions result from naturally weak or ill- trained reasoning powers, hasty conclusions frf)m insuflicient data, ignorance of men and things, credulous dispositions, fraudulent impos- ture, and often from perverted moral sentiments. But still, they are opinions, founded upon some kind of evidence, and liable to bo changed by better external evidence or sounder icasoning. But thej' are not insane delusions. Let me illustrate further: A man talks to you so strongly about his intercourse with departed spirits that you suspect insanit)'. You find, however, that he has witnessed singular manifestations, that his senses have been addressed by sights and soiuids, which he has investigated, reflected on, and been unable to account for, except as supernatural. You see, at once, that there is no insanity hei-e ; that his reason has drawn a conclusion from, evidence. The same man, on further investi- gation of the phenomena that staggered him, discovers that it is all an imposture and surrenders his belief. Another man, whom you know to be an affectionate father, insists that the Almighty has appeared to him and commanded him to sacrifice his child. No reasoning has convinced him of his duty to do it, but the command is as real to him as my voice is now to you. No reasoning or remonstrance can shake his conviction or deter him from his purpose. This is an insane delusion, the coinage of a diseased brain, as seems to be generally supposed, which defies reason and ridicule, which palsies the reason, blindfolds the conscience, and throws into disorder all the springs of human action. Before asking you to ai)ply these considerations to the facts of this case let me premise one or two things. The question for you to determine is, what was the condition of the prisoner's mind at the time when this tragedy was enacted? If he was suflficiently sane then to be responsible, it matters not what may have been his condition before or after. Still, evidence is properly admitted as to his previous and subsequent conditions, because it throws light, prospectively and restrospectively ui)on his condition at the time. In- asmuch as these disorders are of gradual growth and indefinite continu- ance, if he is shown insane shortly before or after the commission of I.NS.XNK DKLlSlON. ITf) ' theories or ire the siib- (1 reflection, vc in animal I that seems ibsunlity in has not its weak or 111- Icient data, ilent impos- ill. tliey are bo changed hey are not y about his You find, t his senses ivestigated, ipornatural. reason has her investi- it is all an ou know to ired to hiiji i convinced is my voice conviction the coinage hich defies conscience, cts of this ion of the If he was may have r admitted ows light. ;ime. In- e continu- mission of KvltU'iico hi till- Cast'. 11 ral K that h th nnu', It IS natun But all the evidence must centre around the time when the deed was - sossion, and which purport to assign the motives for his deed. In the address to the American people of June Kith, which seems most fully to set forth his views, he sa3's : — "I conceived the idea of removing the President four weeks ago. Not a soul know of my purpose. I cnnceivecl the idea myself and kept it to myself. I read the newspapers rarefnJIy, for and againut the ad- ministration, and gradiialli/ the conviction daicned nn me that the Presi- <1ent\s remomil icns a political necessiti/, because he proved a traitor to the men that made him, and thereby imperilled the life of the Republic." Again : — " Ingratitude is the basest of ci-imes. That the Pi'csident, under the manipulation of his Secretary of State, has been guilty of the basest in- gratitude to the stalwarts, admits of no denial. The exin-essed purpose of the President has been to crush Gen. Grant and Senator Conkling, and thereb}' open the way for his renomination in 1884. In the Presi- dent's madness he has wrecked the once grand old Republican party, and for this he dies." * * * Again : — " This is not murder. It is a political necessity. It will make my friend Arthur President, and save the Republic," etc. The other papers are of similar tenor, as I think you will find. There is evidence that, when arrested, the prisoner refused to talk, i7r, iiii: i.r.tiAL TKsr ov insamtv I'llilrd Stat«'« V. CiuiU'lUi. but said tliat the papers would explain all. ()u the iiiglit nf the a.snas- siuation, ac('(»r(liii<; to tlu; wittiess .laiiios ,1. Hrooks, tlie prisonei said to liiiu tliat he hail thought over it and prayed over it for weeks, and the more he thonght and prayed over it tlu' more satisfied he was that he had to do this thing, lie IkhI nntih' up /liffmhid Hint he IikiI (Jone it as a iiuitter of iliitij ; * * * in; mjide up his mind that they (the I'resi- dent nnd ^Ir. lilaine) were conspiring against the liberties of t'le people, and that the I'ri'sident nuist die. This is all that the cvidenee shows as to the pi-isoner's utterances about the time of the shooting. In addi- ti idea of removing him. Gradnalhj, as the r'siilt 'f reading the neivspai>ers, the idea settled on me that if the President was removed it would unite the two factions of the Republican party, and theieby save the government from going into the hands of the ex-rebcls and their Northern allies. Jt icas mij aim I' inception., and, wheth< r right c/ wrong, 1 take the entire responslbil- it!l." A second paper, dated ,1vi\y iOtli. addressed to the public, reiterates this and concludes, " Whet her he lives or dies. I have got the inspira- tion worked out of me." We have now befoie us everything emanating from the prisoner about the time of the shooting and within a little over a fortnight a t rwards. We have nothing further from him until over three months afterwards. Let us pause here to consider the import of all this. You are to consider, first, whether this evidence fairly represents the true feelings and ideas which governed the prisoner at the time of the shooting. If it does, it i-epresents a state of things which T have not seen characterized in anv judicial utteiauce or authoritative work as an INSANK I)i:i-U.SI()N. 177 opinions Coiitriiry to Law. the nssas- lei Hiiid to «, luid the lis thiit he yne it its )ii. It was, douhtlcss, shared l)y n great many others. Hut the difference was that the pris- oner, according to his revelations, went a step liulher, and reached the conrictimi that to put the President out of the way by assassimition was a political necessity. When men reason the law re(itiircs them to reason correctly, as far as their practical duties are concerned. When they have the t'o/)a(vY// to distinguish between right and wrong, they are bound to do it. Opinions, properly so called, — /.«., beliefs resultingfrom reasoning, ri'llection, or examination of evidence, — afford no protec- tion against the penal consetpiences of crime. A man may believe a course of action to be right, and the law, which forbids it, to be wrong. Nevertheless, he must <)bey the law, notwithstanding liis convictions. And nothing can save him from the consequences of its violation, except the fact that he is so crazed by disease as to be unable to comprehend the necessity of obedience to it. Tlio Mormon prophets profess to be inspired, and to believe in the duty of plural marriages, although it was forbidden by a law of the United States. One of the sect violated the law, and was indicted for it. The judge who tried hira instructed the jury — "That if the defendant, under the influence of a religious belief that it was right, — under an inspiration, if you please, that it was right, — deliberately married a second time, having a first wife living, the want of consciousness of evil intent, the want of understanding that he was com- mitting a crime, did not excuse him." And the Supreme Court of the United States, to which the case went, under the title of Rn/nolds v. U. ^S.,' in approving this ruling, said: — " Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with prac- tices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil gov- ernment under which he lived could notinterefere to prevent a sacrifice? Or, if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the 1 98 U. S. 145. 12 1- 178 THE LEGAL TEST OF INSANITY. United States r. Guitcau. civil government to prevent her canying her belief into practice- So, here, as a law of the organization of society', under the exclusive domin- ion of the United States, it is provided that plural marriages shall not be alloAved, can a man excuse his practice to the contraiT because of his religious belief? To i)ermit this would be to make the professed doc- trines of religious belief superior to the law of the land, and, in effect, to ])ermit every citizen to become a law unto himself. Government could exist only in name, under such circumstances." And so, in like manner, I say, a man may reason himself into a con- viction of the f'xpediency and patriotic character of political a^sasina- tion, but to allow him to find shelter from punishment behind that belief, as an insane delusion, would be shnplj' monstrous. Between one and two centuries ago there arose a school of moralists who were accused of maintaining the doctrine that whenever an end to be attained is right, any means necessary to attain it would be justiiiable. They were accused of practising such a process of i-easoning as would justify every sin in the decalogue when occasion requireil it. They incurred the odium of nearly all Christendom in consequence. But the mode of reasoning attributed to them would seem to l>e imj)liedly, if not expressly, reproduced in the papers written by the defendant and shown in evidence : — "It would be a right and patriotic thing to unite the Rppublican party and save the republic. Whatever means may be necessary for that object would be justifiable. The death of the President by violence is the only and therefore the necessary means of accomi)lishing it, and therefore it is justifiable. Being justifiable as apolitical necessity, it is not murder." Such seems to be the substance of the ideas which he puts forth to the world as his justification in these papers. If this is the whole of his po!?ition, it presents one of those vagaries of opinion for which the law has no toleration, and which f u-nishes no excuse whatever for crime. This, however, is not all that the defendant now claims. There is, undoubtedly, a form of irmxne delusion, consisting of a belief by a person that he is inspired by the Almighty to do something, — to kill another, for example, — and this delusion may be so strong as to impel him to the commission of a crime. The defendant, in this case, claims that he labored under such a delusion and impulse, or pressure, as he calls it, at the time of the assassination. The prisoner's unsworn declarations, since the assassination, on this subject, in his own favor, are, of course, not evidence, and are not to be considered by you. A man's language, when sincere, may be evidence .r"*^*.. ce- So, e domin- ,11 not be (e of his isod doc- in effect, k'eniment to a fon- assasina- lind that moralirits m end to iistiliable. as would it. They But the lly, if not nd shown can party for that iolenee is g it, and sity, it is rth to the lie of his the law jrirae. iThere is, a person another, !l him to IS that he jails it, at 1, on this I not to be evidence INSANE DELUSION, 17i> Saiif Biliif. of the condition of his mind when it is uttered, but it is not evidence in his favor of the facts declared by him, or as to his previous acts or con- dition, lie can never manufacture evidence in this way in his own ex(jneration. It is true that the law allows a prisoner to tentt'/i/ in his own behalf, and thereby makes his sworn testimony on the witness-stand legal evi- dence, to be received and considei'ed by you, but it leaves the weight of that evidence to be dc^termined by you also, I need liardly say to you that no verdict could safely be rendered upon the evidence of the accused party only, under sucli circumstances. If it were recognized, by such a verdict, that a man on trial for his life could secure an acquittal b\' simply testifying, himself, that he had committed the crime charged under a delusion, an inspiration, an irresistible impulse, this would be to proclaim an universal amnesty to criminals in the past, and an unbounded license for the future, and the courts of justice might as well be closed. It must be perfectly apparent to you that the existence of such a de- lusion can be best tested l)y the language and conduct of the i)artv immediately before and at the time of the act. And while tiie accused pirty cannot make evidence f6r himself by his subsequent declara- tions, on the other hand, he may make evidence agai)}st himself, and when those declarations amount to admissions against himself, thej^ are evidence to be considered by a jury. Let me here say a word about the characteristics of this form of delusion. It is easy to understand that the conceit of being inspired to do an act may be either a sane belief or an insane delusion. A great many Christians believe, not only that events generally are providen- tially ordered, but that they themselves receive special providential gill lance and illumination in reference to l»oth their inward thoughts and outwa.rd actions, and, in an undefined sense, are inspired to pursue a certain course of action ; but this is a mere sane belief, whether well or ill founded. On tlie other hand, if you were satisfied that a man sincerely, though insanely, believed that, like Saul of Tarsus, on his way to Damascus, he had been smitten to the earth, had seen a great light shining around him, and heard a voice from heaven, warning a 1 commanding him, and that thenceforth, in reversal of liis wliole previous moral bent and mental convictions, he had acted upon tliis supposed revelation, j-ou would have before you a case of imagin- ary inspiration amounting to an insane delusion. The question for you to consider is, whether the case of tiie defendant presents anything analogous to this. The theory of the government is that the defendant I I' ii 180 THE LEGAL TEST OF INSANITY. United States v. Guiteiviu committed the homicide in the full possession of his faculties, and from perfectly sane motives ; that he did the act from revenge, or perhaps from a morbid desire for notoriety ; that he calculated deliberately upon being protected by those who were politically benefited by the death of the President, and upon some ulterior benefit to himself ; that he made no pretence to inspiration at the time of the assassination, nor until he discovered that his expectations of help from the so-called stalwart wing of the Republican party wore delusive, and that these men were de- nouncing his deed, and that then, for the first time, when he saw the necessity of making out some defence, he broached this theory of in- spiration and Irresistible pressure, forcing him to the commission of the act. If this be true, you would have nothing to indicate the real motives of the act except what I liave already considered. Whether it is true or not, you must determine from all the evidence. It is true that the term " inspiration " does not appear in the papers first written by the defendant, nor in those delivered to Gen. Reynolds, except at the close of the one dated July lOth, in which he says that the inspiration is worked out of him ; though what that means is not clear. It is true, also, that this was after, according to Gen. Reynolds, he had been informed how he was being denounced by the stalwart Republicans. In one of the first papers I have referred to, the Presi- dent's removal was called an act of God, as were his nomination and election ; but whether this meant anything more than that it was an act of God, in the sense in which all great events are said to l)e ordered by Providence, is not clear. Dr. Noble Young testifies that a few days after defendant's entrance into the prison — a time not defin- itely fixed — he told him he was inspired to do the act, but (jualified it l)y saying that if the President should die he would be confirmed in his belief that it was an inspiration ; but if not, perhaps not. The emphatic manner in which, in both the papers delivered to Gen. Reynolds, the defendant declared that the assassination was his oiC7i conception and execution, and ivhether riyht or ivrong he took the entire responsibility, his detailed description of the man'> . ^V which the idea occurred to him, and how it was strengthened by his reading, etc., and his omission to state anything about a direct inspiration from the Deity at that time, are all circumstances to be considered by you on the question whether he then held that iilea. On the other hand, you have the prisoner's testimony in which he now asserts that he conceived him- self to be under an inspiration at the time. He also advanced this claim in his interviews with the expert witnesses shortly before the trial. It becomes necessary, then, to examine the case on the assumption UNITED STATES V. GUITEAU. 181 The Medical Evidence Reviewed. and from r perhaps tely upon ! death of b he made r until he (vart wing I were de- 3 saw the Dry of in- aission of ;e the real V'hether it he papers Reynolds, says that ms is not Reynolds, i stalwart the Presi- Dmination it was an e ordered at a few ot defin- iialified it irmed in to Gen. 3 his oicn the entire the idea etc., and the Deity u on the vou have ved him- his claim ial. sumption that the prisoner's testimony may be true, and to ascertain from his declaration and testimony what kind of inspiration it is which he thus asserts. According to the testimony of Dr. Strong, he inquired of the defend- ant if he claimed to have had any direct revelation from heaven, and the answer was that lie did not believe in any such nonsense. Accord- ing to Dr. McDonald, who intei-viewed the prisoner on the thirteenth of November, he did not then, in terms, speak of his idea of removing the President as an inspiration, but as a conception of his own, and said that, after conceiving the idea, he tried to put it aside ; that it was re- pulsive to him at first; that he waited a week or two, thinking over it and waiting for the Almighty to interfere. He had conceived the idea himself, but he wished the Ahnighty to have the opportunity of inter- fering to prevent its execution ; and at the end of two w^eeks, no intoi- ference coming from the Almighty, he formed the deliberate purpose of executing the act, etc. According to the testimony of Dr. Gra}-, the prisoner said that he had received no instructions, heard no voice of God, saw no vision in the night, or at any time ; that the idea came into his own mind first, and after thinking over it and reading the papers, when he arrived at the conclusion to do the act, he belieoed then it was a riglit act, and was justified by the political situation. When asked how he could apply this as an instruction from the Deity, he said it was a pressure of the Deity; that this duty ofdoinc 't, as he claimed, had pressed him to it. Again, he said he had not connected the Deity iciththe inception and development of the act; that it was his oivyi. He did not get the inspiration until tiie time came for it, and that the inspiration came when he had reached the conclusion and determination to do the act. Perhaps the most remarkable of the prisoner's statements to Dr. Gra}' was that at the very time when he was planning the assassination, he was also devising a theory of insanity which should be his defence, which theory was to l)e that he believed the act of killing was an inspired act. Perhaps equally remarkable was the prisoner's theory propounded in this conversation, viz., that he was not mediccdly insane, but legally so, /.e., irresponsible^ because the act was done without malice. Finally, on this subject, you have the defendant's own testimony. He does not profess to have had any visions or direct revelation or dis- torted conception of facts. But he says that while pondering over the l)olitical situation the idea suddenly occurred to him that if the Presi- dent were out of the way the dissensions of his party would be healed ; that he read the papers with an eye on the possibility of the President's removal, and the idea kept pressing on him ; that he was horrified ; kept 182 THE LEGAL TEST OF INSANITY. United States v. Guitean. throwing it off ; did not want to give it attention ; tried to shake it off ; but it kept growing upon liim, so that at the end of two weeks liis mind was thoroughly fixed as to the necessity for the President's removal and the divinity of the inspiration, lie never had the slightest doubt of the divinity of the inspiration from the first of June. He kept praying about it, and that if it was not the Lord's will that he should remove the President there would be some way by which his providence would in- tercept the act. He kept reading the newspapers, and his inspiration was being confirmed eoery day, and since the first day of June he has never had a doubt about the divinity of the act. In the cross-examina- tion he said : If the political necessity had not existed the President would not have been removed — there would have been no necessity for the inspiration. About the first of June he made up his mind as to the inspiration of the act, and the necessity for it ; from the sixteenth of June to the second of July, he prayed that if he luas wrong, the Deity would stop him by his Providence ; in May it was an embryo inspira- tion — a mere impression that po&sibly it might have to be done ; he was doubting whether it was the Deity that was inspiring him, and was l)raying that the Deity would not let him make a mistake about it ; and that at last it was the Deity, and not he, who killed the President. Again, the confirmation that it was the Deity, and not the devil, who in- spired the idea of removing the President, came to him in the fact that the newspapers were all denouncing the President. He saw that the political situation required the removal of the President, and that is the way he knew that his intended act was inspired by the Deity ; but for the political situation, he would have tnought that it came from the deA-il. This is the substance of all that appears in the case on the sub- ject of inspiration. It is proper to call your attention to some variations in the prisoner's statements at different times. In two of the papers of July he says it xoas his own conception, and he took the entire responsibility. In the conversation reported by Dr. Gray, in November, he did not connect the Deity witli the inception of the act. The conception was his own, and the inspiration came after he made up h \ mind ; but he does not explain what he meant by the inspiration, s iless it was that it was a pressure upon him, or, as he expresses it, the c ty of doing it was pre ,s- ing upon him. In his testimony he disclaims all responsibility, while he still speaks of the idea of removing the President as an impression which arose in his own mind first. He says that in his reflections about it he debated with himself whether it cume from the Deity or the devil ; prayed that God would prevent it if it was not His will ; and finally UNITED STATES V. GUITEAU. 18.'i The Medical Evidence He viewed. ike it off ; his mind aoval and ibt of the ' praying imove the would in- ispiration le he has examina- President essity for as to the teenth of ;he Deity ► inspira- ione ; he and was t it ; and fresident. , who in- fact that that the lat is the but for from the the sub- risoner's le says it In the connect his own, loes not it was a is prt ,s- while he )n which ut it he e devil ; il finally made up his mind, from a consideration of the political situation, that it was inspired by Him. On all this the question for you is, whether, on the one hand, the idea of killing the President first presented itself to the defendant in the shape of a command or inspiration of the Deity, in the manner in which insane delusions of that kind arise, of which you have heard much in the testimony ; or, on the other hand, it was a conception of his own followed out to a resolution to act ; and if he tliought at all about in- spiration, it was simply a speculation or theory, or theoretical conclu- sion of hiis own mind, drawn from the expediency or necessity of the act, that his previously conceived ideas were inspired. If the latter is a correct representation of his state of mind, it would show nothing more than one of the same vagaries of reasoning that I have already characterized as furnishing no excuse for crime. Unquestionably a man may be insanely convinced that he is inspired by the Almighty to do an act, to a degree that will destroy his responsi- bility for the act. But, on the other hand he cannot escape responsi- l)ility by baptizing his own spontaneous conceptions and reflections and deliberate resolves with the name of inspiration. On the direct question whether the prisoner knew that he was doing wrong at the time of the killing, the only direct testimony is his own, to the contrary effect. One or two circumstances maj' be suggested as throwing some light on the queslion. The declaration that, right or icroinj, he took the respon- sibility, made shortly' afterwards, may afford some indication whether the question of wrong had suggested itself. And his testimonj' that he was horrified when the idea of assassination first occurred to him, and he tried to put it away, is still more pertinent. His statement, testified to by Dr. Gray, that he was thinking of the defence of inspiration while the assassination was being planned, tends to show a knowledge of the legal consequences of the killing. His present statement, that no pun- islnnent would be too quick or severe for him if he killed the President otherwise thaa as agent of the Deity, shows a present knowledge of the wrongfulness of the act in itself ; but this declaration is of value on this question of knowledge, only in case you should believe that he had the same appreciation of the act at the time of its commission and dis- believe his story about the inspiration. I have said nearly all that I need say on the subject of insane delusion. The answer of the English judges, that I have referred to, has not been deemed entii-ely satisfactory, and the courts have settled down upon the iiuestion of knowledge of right and wrong as to the particular act, or 184 THE LEGAL TEST OF INSANITY. United States v. Guito;> i. rather the capacity to know it as the test of rcsponsibilit}- ; and the ques- tion of insane delusion is only important as it throws light upon the question of knowledge of, or capacity to know, the right and wrong. If a man is under an insane delusion that another man is attempting his life, and kills him in self-defence, hu does not know that he is commit- ting an unnecessary homicide. If a man insanely believes that he has a command from the Almighty to kill, it is difficult to understand how such a man can know that it is wrong for him to do it. A man may have some other insane delusion which would be quite consistent with a knowledge that such an act is wrong, — such as, that he had received an injury, — and he might kill in revenge for it, knowing that it wou! ''f>iig. A. i .e dwelt upon the question of insane delusion, simply be- cause evidence relating to that is evidence touching the defendant's pov. ,'. or wanf of power, from mental disease, to distinguish between right and , onj^, -^i* to +he act done by him, which is the broad question for you to determine, and because that is the kind of evidence on this question which is relied on by the defence. It has been argued with great force, on the part of the defendant that there are a great many things in his conduct which could never be ex- pected of a sane man, and which are only explainable on the theory of insanity. The very extravagance of his expectations in connection with this deed — that he would be protected by the men he was to benefit, would be applauded by the whole country when his motives were made known — has been dwelt upon as the strongest evidence of unsound- ness. Whether this and other strange things in his career are really indicative of partial insanity, or can be accounted for by ignorance of men, exaggerated egotism, or pei-verted moral sense, might be a question of difficulty. And difficulties of this kind you might find very perplex- ing, if you were compelled to determine the question of insanity gen- erally, without any rule for your guidance. But the only safe rule for you is to direct your reflections to the one question which is the test of criminal responsibility, and which has been so often repeated to j'ou, viz., whether, whatever may have been the prisoner's singularities and eccentricities, he possscssed the mental capacity, at the lime the act was committed, to know that it was wrong, or was deprived of that capacity by mental disease. In all this matter there is one important distinction that you must not lose sight of, •'nd you are to decide how far it is applicable to this case. It is the distinction between mental and moral obliquity; be- tween a mental incapacity to understand the distinctions between right DEPRAVITY NOT INSANITY. 185 Evidence c ' Prisoner's Life Relevant. the ques- upon the d wrong, ipting his 3 comirit- t he hns a itand how man may jonsistent it he had ng that it mply be- fendant's I between question le on this dant that jer be ex- :hcory of tion with benefit, re made nsound- e really ranee of question perplex- ity gen- rule for e test of to you, ties and act was :apacity ou must to this ty; be- en riglit and wrong, and a moral indifference and insensibility to those distinc- tions. The latter results from, a blunted conseienco, a torpid moral sense, or depravity of heart ; and sometimes we are not inapt to mis- take it for evidence of something wrong in the mental constitution. We have probably all known men of more than the average of mental endowments, whose whole lives have Ijcen marked by a kind of moral obliquity and apparent absence of the moral sense. We have known others who have first yielded to temptation with pangs of remorse, but each transgression became easier, until dishonesty became a confirmed habit, and at length all sensitiveness of conscience disappeared. When we see men of seeming intelligence and of better antecedents reduced to this condition, we are prone to wonder whether the balance-wheels of the intellect are not thrown out of gear. But indifference to what is right is not ignorance of it, and depravity is not insanity, and we must be careful not to mistake moral perversion for mental disease. Whether it is true or not that insanity is a disease of the physical organ, the brain, it is clearly in one sense a disease, when it attacks a man in his maturity. It involves a departure from his normal and natural condition. And this is the reason whj' an inquiry into the man's previous condition is so pertinent, because it tends to show whether what is called an act of insanity is the natural outgrowth of his disposition or is utterly at war with it, and therefore indicates an unnatural change. A man who is represented as having been always an affectionate parent and husband, suddenh' kills wife and child. This is something so unnatural for such a man that a suspicion of his insan- ity arises at once. On further inquiry we learn that, instead of being as represented, the man was alwaj's passionate, violent, and brutal in his family. We then see that the act was the probable result of his bad passions, and not of a disordered mind. Hence the importance of viewing the moral as well as intellectual side of the man, in the effort to solve the question of sanit}'. That evidence on this subject is proper was held bj' the Supreme Judicial Court of New Hampshire in State v. Jones.^ Judge Lauo said : — "The history of the defendant and evidence of his conduct at vari- ous times during a period of man}- years before the act for which he was tried, tending to show his temper, disposition, and character, were admitted against his objection. It was for the jury to say whether the act was the product of insanity, or the naturally malignant and vicious » 50 N. H. .m. 1«6 THE LKOAL TEST OF INSANITY United States v. Guitean. heart. The condition of the man's mind, whether healthy or diseased, was the very matter in issue. Tins must be determined in some way or otlier from external manifestations as exhibited in his conduct. To know whetlier an act is tlie product of a diseased mind it is important to ascertain, if possible, how the same mind acts in a state of health. The condition of sanity or insanity shown to exist at one time is pre- sumed to continue. For these reasons and others, which I have not tiiought it necessary to enlarge ui)on, it would seem that evidence tend- ing to show defendant's mental and moral character and condition for many years before the act, was properly received." It was upon the princii)le enunciated in this case that evidence was received in the present case tending to show the moral character of the accused, and offered for the purpose of showing that eccentricities relied on as proof of unsound mind were accounted for by want of moral princii)le. From the materials that have been presented to you two pictures nave been drawn by coiuisel. The oni' represents a youth of more than the average of mental endowments, surrounded by certain demoralizing in- lluences at a time when his character was being developed ; starting in life without resources, but developing a vicious sharpness and cunning ; conceiving " enterprises of great pith an(l moment," that indicated un- usual forecast, though beyond his resources ; consumed all the while by insatiate vanity and craving for notoriety ; violent in temper, selfish in disposition, immoral, and dishonest in every direction ; leading a life, for years, of hypocris}', swindling, and fraud ; and finally, as the cul- mination of a dei)raved career, working himself into a resolution to startle the countr}' with a crime that would secure him a bad eminence, and, perhaps, a future rewaril. The other represents a youth born, as it were, under malign influences, the child of a diseased mother, and a father subject to religious delusions ; deprived of his mothei" at an early age ; reared in retirement and imder the influence of fanatical religious views ; subsequently, with his mind filled with fanatical theories, launched upon the world with no guidance save his own impulses ; then evincing an incapacity for any continuous occi:pation ; changing from one pursuit to another — now a lawyer, now a religionist, now a iioliti- cian — unsuccessful in all; full of wild, impracticable schemes, for which he had neither resources nor ability ; subject to delusions about his abilities and prospects of success, and his relations with others ; his mind incoherent and incapable of reasoning connectedl}' on any subject ; withal, amiable, gentle, and not aggressive, but the victim of surround ing influences, with a mind so weak and a temi)erament so impressible UNITED STATES V. GUITEAU. 187 Instructions. diseased, me way or iluct. To important of health, me is pre- ' have not eiice tend- idition for dence was ter of the ities relied p of moral tures nave e than the aliziiig in- itartin 3 only evl- r himself, ver to the n involved 3 commis- J of mind, capable of , — as for iglity had was inca- s not in a ssion, and md if you ribed, but is act was ined, and al vindic- rl poHtical )atriotism ive at all, itter, and against etired to the mar- veling to Bright, arauel F. Jrawner, verdict ? : guilty? lUManu Delusion — Burdun of Proof. TiiK CocuT. Gentlemen of the .jury, I onnnot express too much thanks to you, l)()tli in my own name and in the name of the public, for tlic diligence and fidelity with which you have discharged your duties ; for the patience with whidi you have listened to this long mass of testi- mony, and the lengthy discussion by counsel ; and for the patience witli which you have bf)rne with the privations and inconveniences incident to this trial. I am sure that you will take home with you the approval of your own consciences as yon will have that of your fellow-citizens. With thanks and good > 'shes, I discharge you from any further service at this term of the court. Thereupon (at 5 o'clock and o5 minutes r. m.) tlie court adjourned. INSANE DELUSION — INSTRUCTK^XS — INTOXICATION — COMMITTED INTENTIONALLY DOES NOT CHANGE GIUDE OF CRIME — BURDEN OF PROOF. State v. Gut. [13 Minn. 343.] In the Supreme Court of Minnesota, July, 1868. Hon. Thomas Wilsox, Chief Justice. " S. J. R. McMu.i.AX, '* Jonx M. Bkkuv, Associates. ] 1. Insane Delusion — Instructions. — The court Instructed the Jury: " If the defendant lias .an insane delusion upon any one subject, but coniniits crime upon some other mat- ter not connected with that particular delusion, ho is equally guilty as if he had no de- lusion, and was perfectly sane. Held, proper. 2. Intoxication — Committed Intentionally Does not Change 0~ade. — Where a crime is commiltcd intentionally as a matter of revenge, the intoxi'utiun of the prisoner docs not change its grade. 3. Burden of Proof. — The defence of insanity must be made out to the satisfaction of the court. The defendant was indicted, tried, and convicted of the murder of Charles Campbell. He appealed to this court. Atiudter & Flandrmi for appellant. F. R. E. Cornell. Attorney-General, for the State. Wilson, C. J. (Omitting rulings on other matters.) The third charge is: "If the defendant has an insane delusion upon 190 THE LEGAL TEST OF INSANITY. Stato V. Out. any one subject, but commits crime in some other matter not connected with thiit piirticuhir delusion, he is cMjuuUy as State V. Shippey, 10 Minn. 2-23. STATK '■. (a T lit I Intoxicat. (loin<2f, llii> juiv ('ftiinot rij?litfiilly <'onviot liiin of the cliurj^c in tin- iii- dictnu'iit." IJiit Ui in()flili(:itii)ii or limitation of tlu' forcfroinrr eli!iri;f tlir court instnicU'd tlie Juiy, " Tliiil wlu'U the net of killiim is iiiiC(iuivo- va\ iind iiii|»i()V()lvO(l, tlio fiict that it was coiiiniitttMl wliilc the periK'tni- tor W!VH int()xit!iitiM|, cannot he ivlh)\ve(l to affect the li'i^al ciiaracter of tlie crime. But where the cii v'umstances aic sucii as to raise tiie (|neH- tion wlicther the act was the result of (lesi;j;n, or the impulse of suthlcn passion, the intoxication of t'l. accused is u pi'oper subject of considera- tion. Tliat (h'unkeiUH'SS may lus talvcn into consicU'ration in cases where what the hivv deems sutflcient provocation has been giv»'n, because the (|uesti()n is in such cast's wiietlier tlie fatal act is to be attributed to the l)assion of anj^er excited by the previous piovocatinn, and that passion is more easily excitable in a jjcrson when in a state of intoxication, than when he is sober. With rcirard to the intention, drunkt-mu'ss may per- haps be adverted to according to the nature of the instrument used- If a man use a stick, you would not infci ;i malicious intent so stron;j;ly a_ij;ainst him if drunk when he made an intemperate use of it, as you would if had used a different kind of weapon. But where a dangerous weapon is used, which if used must produce grievous bodily harm, drunkenness can have no effect on the consideration of the malicious in- tent. That he who is in a state of voluntary intoxication should be subject to the same rule of conduct, and the same legal inferences as the sober man ; but that where a provocation has been received which' if acted upon instantly, would mitigate the offence of a sober man, and the question in the case of a drunken man is whether the provocation was in truth acted upon, evidence of intoxication may be considered in deciding that question. But that in this case there is no proof of such a provocation." The charge requested was correct. ' If some of the modifications or limitations are inconsistent with it, this, according to our view of the case, is not a ground for reversal or new trial. Our statute declares the killing of a human being " when per[)etrated with a premeditated design to effect the death of the person killed, or any human being," murder in the first degree ; and where this design is, in fact, wanting, we hold that the crime is not murder of that degree. A party on trial for murder is n(it to be punished for intoxication. If he did not intend to do the act con- stituting the crime, he is not to be fonnd guilty of such intent, however illegally or immorally he may otherwise have acted. It is recited in the bill of exceptions " that the said John Gut had been drinking, and was to some extent intoxicated on the 25th day of December, 186G, when 1 state V. Gurvey, 11 Minn. 154. 192 THE LEGAL TEST OF INSANITY. State V. Gut. said Camiibell was killed." And also that when he was reproved for the stabbing of the deceased, he replied: "These half breeds killed my best friend, Jolni Spinner, and I will kill them ; let me alone or I will stab you." It is with great hesitancy that we say in a criminal prosecution, and especially in a capital case, that any error did not pre- judice the defendant ; and where there is the least doubt as to its effect, we feel bound to give him the benefit of the doubt. But it appearing that the defendant was intentionally killed, or participated in the killing of the deceased as a matter of revenge, it is immaterial whether he was intoxicated or not. The crime would be the same in either case, there being criminal intent amounting to a premeditated design, and a crimi- nal act. Besides, it does not appear that the defendant was, at the time the crime was committed, in such a state of intoxitation as to ren- der him incapable of forming a premeditated design. Hence, we conclude that the error in the charge, if there is error, cannot possibly have prejudiced the defendant, and therefore, that it is not ground for reversal. The charge of the court "that insanity was a defence, and must be mad(> out, from the evidence, to the satisfaction of the court, as any other defence," is in accordance with tiie decision m BonfantVs The charge of the court, and its refusals to charge on this point, were therefore, we think, unobjectionable. The views which we have above expressed cover all the questions raised by the defendant. We have (liscovercvl no substantial error. The theory and teachings of our law, as well as the dictates of humanity, require the courts to give to a person accused of a crime the benefit of ecei'ij doubt that may exist, either as to the law or facts. But further than this, justice forbids, and mercy does not require them to go. Where there has l)een any error or irregu- larity that could possibly prejudice the defendant, it is ground for a reversal. But an error which is not a violation of any positive rule of law, and which could not possibly prejudice him, cannot, according to any rational rule render invalid the proceeding?. The rule on this sub- ject is clearly expressed in sect. 11, chap. 108, Gen. Stats., as follows: " No indictment is insulficient, nor can the trial, judgment, or other proceedings thereon, be affected, by reason of any defect or imperfec- tion in the matter of form, which does not tend to prejudice the sub- stantial rights of the defendant, upon its merits." Judgment affirmed. ' 2 Kinn. 131. KOBKIITS V. STATE. IIKJ lusiiue Delusion — Test of Insanity. med. TEST — INSANK DELUSION. Roberts v. State. [3 Ga. 310.] lu the Supreme Court of Georgia, August Term, 1847. Hon. JosKPii Hexry Lumpkin, " IIiKAM Waunkr, " El'ukxils a. Nisijkt. . Judges. Particular Bieht and Wronfi: Test — Delusion. — It a man has not reason sufficient to enable him to distinguisli between right aiii. he talks and acts like a madman, still has as ranch reason as enables him to distinguish between rigiit and wrong, he will be liable to that punishment which the law attaches to his crime." ^ In the case of Rogers, the Supreme Judicial Court of Massachusetts, lay down the rule in the following words: " A person, therefore, in order to be punished by law or in order that his punishment by law may operate as an example to deter others from committing criminal acts under lilvc circumstances, must have sutTlcicnt memory, intellijience, reason, and will", to enable him to distinguish between right and wrong in regard to the particular act about to be done, to know and under- stand that it will be wrong, and that he will deserve punishment by com- mitting it." This rule does not require total insanity like the one previousl}' referred to, — derangement as to all subjecis and in all ac- tions, — but if the prisoner is perfectly sane as to ail o;h r things, and wants, as to the act about to be committed, reason enough to distingnisli between the right and wrong of that act — if he does not know and understand that that act is wrong, and that he will deserve punisliment for committing it, he is irresponsible. So, also, on the other hand, ac- cording to this rule the person ma}' be deranged as to other things, yet if he has sufficient reason to distinguish as to the right and wrong of the particular act about to be committed, if he knows and understands that for committing that act, he will be liable to be punished, he is a responsible agent and ought to be convicted. Such is tlie rule adopted by the court below ; it is sustained by great weight of authority, and as I shall show, is tlie only rule Avhich was applical)le to the facts of this case. But even this rule has undergone some modification. There are some exceptions to it; one, certainly, wliich was first established in the leading case of King v. Hadji 'Id. The great speech of Mr. Ers- kine in defence of Iladfield, has shed new light upon the law of insanity. So conclusive was that celebrated argument, that it is now looked upon by the profession as authority. In the records of forensic eloquence, ancient and modern, nothing is to be found surpassing Erskine's defence of Hadfield, for condensation, perspicuity, and strength of reasoning, as well as for beauty of illustration and purity of style. In that case he assumed tlie position that a man might have reason sufficient to distinguish between the right and wrong of tlie act about to be committed and yet be irresponsible ; that the mind might 'Shelf, on Lunacy, 4 68; Lord Ferrers' Case, l'.» How. St. Tr., !>47 ; Arnold's Case, 16 Id. 764 i I'arkcr's Case, 1 ; Collins on Lunacy, 477; Bollinghams's Case, lb. ft36; Offord'a Case, 5 C & l*. 16S; Uogors' Case, Abner Uogers' Trial, 275. 198 THE LEGAL TEST OF INSANITY. Roberts v. State. be cognizant of the distinction between right and wrong, as regards the act, and yet, by reason of some dehision, overmastering the will, there might be no criminal intent. To apply this proposition, it was admitted by Mr. Erskine that the act itself must be connected with the peculiar delusion under which the prisoner labors. This doctrine can be best understood by illustration, and it is illustrated by Iladfield's case. He had been a soldier in the British armies, and had received several severe wounds, one of which, on the head, it was thought, had injured the brain; and caused the derangement under which he suffered. He imag- ined that he had constant intercourse with»the Almighty, that the world was coming to a conclusion, and like our blessed Savior, he was to sac- rifice himself for its salvation. Unwilling to commit suicide, it was argued by Mr. Erskine, he sought to do an act which woidd forfeit his life to the law,«and thus bring about the sacrifice which in his morbid imagination he held necessary to the salvation of tbe world. Under the influence of this delusion, he shot at the king in the theatre. Now in this case, it was not pretended that Hadfield was a raving maniac, or an imbecile idiot ; nor was it contended that he was incapable of know- ing that shooting a pistol at the king, would or might kill him, or that if he siiould kill the king that he would deserve death for the act (for that was really what he desired) ; or that he was incapable of distin- guishing between the right and wrong of the act ; but it was contended that the delusion under which he labored had so shattered his intellect as to control his will, and impel him resistlessly to the commission of the act, and therefore there was no criminal motive, no wicked or mischiev- ous intent, and if these were wanting, he was irresponsible. To use the language of Mr. Erskine, " Reason is not driven from her seat, but dis- traction sits down upon it, along with her, holds her trembling upon it, and frightens her from propriety." Hadfield was acquitted, and since that day, the exception which his case established has been recognized.' Thus far with safety we may assert that certain principles have been established ; yet it is true that these rules do nol. govern all cases. It is conceded by the courts in England, practically if not in terms, that no rules can be so specific as to embrace the infinite variety of forms in which insanity or derangement may show itself ; and that each case must depend very much upon the circumstances, facts and developments which attend it. Thus, Lord Hale says : " It is very difficult to define the invisible line that divides perfect and partial insanity. But it must > See £rskine's speech in appendix to Cooper's Med. Jur., 27 llow. St. Tr. 1281. KOBERT8 V. STATE. 199 Test of Insanity. or rest upon circumstances, duly to be weighed and considered by tlie judge and jury, lest on the one side there be a kind of inhumanity towards the defect of human nature, or on the other, too great indul- gence be given to great crimes." So Taylor declares: " There are no certain legal or medical rules whereby homicidal mania may be detected. Each case may be determined by the circumstances which attend it." ' In the opinion which C. J. Denman, gave before the House of Lords in 1843, although adhering to the old rules he says: " It is difficult to lay down any abstract rule on the subject applicable to all cases, and eacli case must be decided, in great measures upon the facts and circumstances peculiar to it, under the discretion of the court. In the case at this bar, the evidence shows no particular delusion to control the will " sitting upon reason's seat and holding her trembling, and frightening her from her propriety." It does not come within the exception to the rule laid down l)y Judge Floyd, which was established in Iladfield's case. This case is embraced within that rule, and we think the court below correctly gave that rule in chai-ge to the jury. If there was partial insanity in this case, about which we express no opin- ion, it was the effect of melancholy, growing out of disappointed love ; there was no proof of raving madness nor of peculiar mania. The prisoner had addressed Mrs. Julian and been rejected ; afterwards he talked occasionally incoherently, looked vacant in the face, sat up late at night, and wrote some silly letters, and all attended with a habit of intemperance. At the time he committed the assault, and previously, he was violent, rude towards Mrs. Julian and her mother, and indecent in his conversation. He seems to have been on that day the very person to whom Mr. Erskine denies the protection of insanity, one " who exhibits only violent passions and malignant resentments, acting upon real circumstances, who is impelled to evil from no morbid delusion, but who proceeds upon the ordinary perceptions of the mind." Let the judgment of the court below be affirmed. > Taylor Med. Jurisp. 649. See also Tt c. & P, 168; 9 /d.625. 200 THE LEGAL TEST OF INSANITY. Noti'i NOTES. § 1. Acts of an Insane Person not Punishable. — The common law does not pnnish tlio acts of an insane man. " In all jurisdictions cvcrywiu'ro, and amom; all i)eoi)le, civilized or savaijc, u defect of reason that renders one unaccountable for his acts is viewed with connniseration, and the subject of it shielded from even the least reproach." "It is," as said in a Delaware case, "one of tho.sc visitations of the Creator Avhich all humanity respects, and which con- fers immunity from punishment upon him who is so unfortunate as to be the victim of it, if I may use an expression of seemluij irreverence." • Reason is the basis of human respousil)ility ; whenever it does not exist tlu; party is not respon- sible for his acts. The plea of insanity avails the party not as a justilicatiou or excuse, but because he is not responsible at all. It may exist from .infancy, when it is idiocy, or it may be adventitious, jjroceedinii from various causes, and may be permanent or temporary.'^ Admitting; tliis to be the rule of the common law, the courts have from the first endeavored to discover a test by the applica- tion of which to a particular case, a jury may decide whether a particular person is or is not a proper sul)ject of punishment. Various tests have l)een suggested, adopted, and discarded. § 2. The Child Test. — The first test which was proposed for the solution of this problem was suggested by Lord IIai.k.'' " It is very dilHcult," said he, " to detine tlie indivisible line that divides perfect and partial insanity; but it must rest upon circumstances duly to be Aveigiied and considered botli by the judge and jury, lest on one side there be a kind of inhumanity towards the defects of human nature, or on the other side too great an indulgence given to great crimes; the l)est measure that I can think of is tins, .fuch a person as laboring under melanchulij distempers hath yet ordinarihj as great understanding as ordi- nnrihj a child of fourteen years hath, is such a person as may he guilty of treason or felony.''* This test, as we shall see, comes very near the one now generally adopteil by the courts. § 3. The Wild Beast Test. — But in the next important trial after Lord Halk wrote, Mr. Justice Tn.vcY laid down a more severe test. On the trial of Arnold,* in 17i'4, for sliooting at Lord Onslow, Mr. Chief Justice Th.vcv said to tlie jury: "This is tlie evidence on l)oth sides. Now, I liave laiil il t)efore you; and you must consider of it; and the shooting my Lord Onslow, whicli is the fact for wliich tills prisoner is indicted, is proved Ijeyond all manner of contradiction; but whether this shooting was malicious, tiiat depentls upon the sanity of the man. That he shot, and that wilfully is proved; but whether maliciously, that is thf thing; that is tlie (picstion; whether this man hath the use of his reason and his senses? If he was under the visitation of God and v.-ould not distinguish be- tween good and e>il, and did not know what he did, tliougli he committed tlie greatest offence, yet he could not be guilty of any offence against any law Avhat- ' Comcgys, C. J., in State r. Brown, 1 Hoii-st. Cr. Cas. .5;i0 (1878). - ISayard, J., in .State v. Dillahunt, 3 Harr. (Del.) 5:.l (1840); Cole's Case,? Abb. Pr. (N. S.) ;V21 (ISf.s). a 1 Hale's I'lean of the Crown, 30. * Arnold's Case, 10 How. St. Tr. 764. THE WILD BEAST TEST. 201 fir. .Tiistico Tracv In Arnold's Cjisi- soever; for Ltuilt arises from the niiuserved to you. and the jiresent is one of them, upon which it is extremely ditlicult to be precise. The general principle is clear, but the application most diflicult. " It is agreed by all jurists, and is estai)lislied by the law of this and every other country, that it is the reason of man, which makes him accountable for his actions : and that the deprivation of reason acquits him of crime. This principle is indis- putable; yet so fearfully and wonderfully are we made, so intinitely subtle is the spiritual part of our being, so ditflcult is it to trace with accuracy the effect of diseased intellect upon human action, that I may appeal to all these who hear nie, whether there are any causes more ditllcult, or which, indeed, so often con- 704. ' R. V. Hadfleld.i- How St. Tr. li&i. 202 TIIK LE(3AL TKST OF INSANITY. Nott'S. found tlie leiirnintj; of tlio judixi's tliomselvt's, as wiu'ii insiuiity, or th« cffcfts and coiisc'<|ui'nct's of Insanity, lu'conie the snl)jrots of Ici^al consideration and judju- ment. I sliall pursue tlie suhjeet as the attorncy-seneral has properly discussed it. I sliall consider insanity as it annuls a man's dominion over property; as it dissolves his contracts, and other acts whicli otherwise would be binding; and as it takes away liis responsibility for crimes. If I could draw the line in a moment l)etween these two views of the s\d)ject, I am sure tlic judjies would do me the justice to believe, that I woidd fairly and candidly do so; but j^reatdiffl- cultics ])ress upon iny mind, which oblivce me to taltron,sily confirmed the existence of the false idea which, if ludieved l)y the jury to amount to madness, would e(|ually have affected his testament, if the brother instead of beinjj disiidierited, Iiad been in his j^rave; and that, on the other hand, if the unfounded notion did not amount to madness its influence could not vacate tlie devise. Tliis principle of law appears to be sound and reasonable as it applies to civil cases, from the extreme diffleulty of traeinn with precision the .secret motions of a mind, deprived liy disease of its soundness and streiiiith. "Whenever, therefore, a person may lie considered non compos mentis, all his civil acts are void, whether they can l)e referred, or not, to the morbid impulse of his malady, or even thouirii to all visible appearances, totally .separated from it; but I ajjree with Mr. Justice Thacy, that it is not every man of an idle, fran- tic appearance and liehavior, who is to be considered as a lunatic, either as It rcjiards oblifjations or crimes; but that he must appear to the jury to be won compos mentis, in the legal acceptation of the term; and that not at any anterior period, which can have no bearing upon any case whatsoever, but at the moment wlien the contract was entered into or the crime committed. "Tlie attorney-general, standing, undoubtedly, upon the most revered authori- ties of the law, has laid it down, that to protect a man from criminal responsibility, tliere must be a total deprivation of memory and understanding. I admit that this is the very expression used by Lord Coke and by Lord H.vle; but the true in- terpretation of it deserves the utmost attention and consideration of the court. If a total deprivation of memory was intended by these great lawyers to be taken in the literal sense of the words; if it was meant, that to protect a man from punishment, he mu.st be in such a state of prostrated intellect, as not to know his name, nor his condition, nor his relation towards others, that if a husband, he should not know he was married ; or, if a father, could not remember that he liud children • nor know the road to his house, nor his property in It, then no 204 TMK LKiJAl, TK.ST Ol' INSANITY. Noti's. siu;h iniiiliU'j^s ever oxlstctl in tlif world. It is idiocy aloiu- whicli places a iiiiin ill tids liclplcss condition: wiicrcfroin an oiiifiiud iiialor^iani/ation, tiurc is tlu! Iiiinian fraiiu; aioiic, witlioiit tlic liiinian capacity; and wliicli, iiniccd, meets tliu very delliiition of Lord IIalk liiniself, wiieii, relerriii;i to Kitzlierhert, lie says: ' Idiocy or fatuity, a mUiviUite, vi'l demt'titia nuturnlis, is siidi a one as dcscriitcd liy Fitzlurlurt, wiio knows not to tell twenty slilllin;j;s, nor knows liis own ai;e. or wlio was Ids father.' Unt in all the cases which have tilled West- minster Hall with the nio8t ooni|)licated considerations, the lunatics and other insane jiersons who have been the sr.lijects of them, have not only had memory, ill my sense of tiie expression, they have not only had the most perfect knowl- edije and recollection of all the relations they stood In towards others, and of the acts and circumstances of their lives, hut have, in ijeiieral, been remarkable for subtlety and acnteness. Defects in their reasoniniis have seldoin been traceable, the disease consir.tin;; in the delusive sources of thonirht; all their (U'ductloiis within the scope of the malady beimx founded upon the iiiimoval)le assiimptioii of matters as realities, either without any foundation whatsoever, or so distorted and distliiured by fancy, as to be almost nearly the .same tliinii as their creation. It is true, Indeed, that in some, perhaps in many cases, the hiiinaii iniiul is stunned In Its citadel, and laid prostrate under the stroke of frenzy; the.se uii- liai)py sufferers, however, an; not so much considered by pliysicians as maiiiat -, as to he in a state of delirium from fever. Tlieri', indeed, all the Ideas are over- whelmed — for reason Is not merely disturbed, but driven wholly from lier svn\ . Such unhappy patients are unronscious, therefore, except at short intervals, even of external objects; or, at least, are wholly incapable of considerinn their rela- tions. Such persons, and such i)ersons alone (except idiots) are wholly deprived of tlieir understandinji. In the attorney-^enerars seeininu; sense of that expres- sion. But these cases are not only extremely rare, but never can become the siil)jects of judicial dltllculty. There can i)e but one judiimeiit concerninn them. Ill otJier cases reasnn is not drvwu from her sfat, hut distraction sits down upon it along with her, holds her tremhliiKj upon it, and frightens her from her pro. pnetij. Such patients are victims to delusions of tlii' most alarmiiii^ descri|)tion, which so overpower the faculties, and usurp so lirinly the place of realities, a> not to be (lislodu;ed and shaken by the organs of percei)tioii and sense; in such cases the imaiies frequently vary, but in the same sul)ject arc peuera tin .same territic character. Here, too, no judicial difflcultii ''m- ;ireseiit tip iii- selves; for who could balance upon the judiiuient to ))' m ■(! in case of such extreme disease? Another cla.ss branchinji out ii lost Inlinite s li- visions, under which, indeed, the former, and every ( i>f iiis.iuity may bi- classed is, where the delusions are not of that friiihtful cIku icter but Inflnitely various, and often extremely circumscribed; yet where Imaiiinati m (within the bounds of the malady) still holds the most uncontrollable dominion over reality and fact; and these are the cases which frequentlymockthe wisdom of the wisest in judicial trials; because such |)ersoiis often reason with asui)tlety wliiih puts in the shade the ordinary perceptions of mankind; their conclusions are just, and frequently profound; but the premises from which they reason, when within the I'ani'e of the malady, are uniformly false, not false from any defect of knowlediXi or judsiment; but because a delusive imaire, the inseparable companion of real Insanity, Is thrust upon the snbjuiiated uiulerstandiua;, incapable of resistance be- cause unconscious of attack. 'I ixsam: dkmsions. 2or) ICrsklm's Ar^iiiimiil in lliulllflil'f* ('use lilcli placi's '.atioii, tlieiv ic-li, indeed, Kilzlierl»erf, cit a «>nc> Us I' knows his lllletl West- s and otlier ad nieniorv, feet knowl- >, and uf tile iiarkai)ie for n traeeal)le, deciuctioiis ussnniption so distorted 'ir creation, ta niinci is ; tliese Un- as maniacs, us are over- ni lier seat. L-rvals, even ;tlieir rela- ly deprived lat expres- )ecoino llic ninsi tliein. dmon upon m her pro. scriptlon, ealities, a- in sucli al ' tlie ient tlh ni- n cas( of lito S ii- ty may Ik t inflnitciy witliin tlie ver reality tlie wisest iol)er, ratlomil conduct, would lie an emancipation from criminal justice. I sliall place my claim to your verdict upon no siicli dau<;erousfoundation. I must con- vince yon, not only tliat the unhaiipy prisoner was a lunatic, witldn my own ietlnition of lunacy, buttliat tlie act in question, was tin* immediate, un(|ualitted offsprin^i of tlie disea.sc. In civil cases, as I liave alri'ady said, the law avoids every act of the lunatic duriufi llic period of the lunacy; aitiiontfh the lunacy may liecxccodiufily circumscribed; aithoufrli tlie mind may be quite sound in all that is not within the sliadcs of the very partial eclipse; and althoui;li the act to b<' avoided can in no way lie connected wltli the iiitluence of insanity; but to deliver a lunatic from responsibility to criminal justice, above all, in a <'ase of such atrocity as the present, the relation lietweeii the disease and the act should be apparent. Wlieii the connection is ist>, not merely in seein*; witli a prejudiced eye, or with odd and alisiinl jiarti- (iilaritics, diffcrins;, in many respects, from the contemplations of sober sense, upon the actual existence of things, but, he only whose whole reasoninfi and correspondiui; conduct, tliou;:li ;ioveriied by the ordinary dictates of reason, proceed upon somethinji which has no foundation or existence. " (Jeutlemen, it has iileased (Jod so to visit the unliappy man before yon; to shake his reason in its citadel; to cause to build up as realities, tlie most impos- sible phantoms of the mind, and to be impelled by them as motives irresistil/ic ; the whole fabric beini!; iiothiiii? but tlie unhappy vision of liis disease — existinj; iiowhereel.se — haviuii no foundation whatsoever in tlu? very nature of things. (Jeutlemen, it has been stated by tlie attorney-jreneral, and establislied by evi- 'it'iice, which 1 am in no condition to contradict nor have, indeed, any interest ill contradictinjt, that when the prisoner bouiilit the pistol whicli he discharjied at, or towards his majesty, he was well acipuiinted with the nature and use of it, — that, as a soldier, he could not but know that in his hands it was a sure instrument of death; that when he boujrht the iiunpowder, he knew it would 206 THE LEGAL TEST OF INSANITY. Notes. prepare the pistol for Its use ; tliat when lie went to the play-house, he knew he AViis going there, and everything connected with the scene, as perfectly as any other person, — I freely admit all tl:is. I admit, also, that every person who listened to his conversation, and oljserved his deporLnient upon his apprehension, must have given precisely the evidence delivered by his royal highness the Duke of York; and that nothing like insanity ai)pe;ired to those who examined him. Hut what then? I conceive, gentlemen, that I am more in the habit of examina- tion, than either that illustrious ])erson, or the witnesses from whom you have heard this account; yet I well remember (indeed I never can forget it), that since the noble and learned judge has presided in this court, I examined for the greater part of a day, in this very place, an unfortunate gentleman who had indicted a most affectionate brother, together witli the keeper of a mad-house at Iloxton, for having imprisoned him as a lunatic; whilst, according to his evidence, lie was in his perfect senses. I was unfortunately not instructed in what his lunacy consisted, although my instructions left me no doubt of the fact; but n< t having the clue, lie completely foiled me in every attempt to expose his infiiinity. You may believe that I left no n;eans unemployed which long experi- ence dictated; but without the smallest effect. The day was wasted, and the prosecutor by the most affecting history of unmerited suffering, appeared to the judge and jury, and to a humane P^ngl.sh audience, as the victim of the most wanton and barbarous oppression : at last Dr. Sims came into court, who had been prevented l)y business, from an earlier attendance; and whose name, by the by, I observe to-day in the list of the witnesses for the crown. From Dr. Sims I soon learned that the very man wl om I had been above an hour examin- ing and with every possi))le effort which counsel are so much in the habit of exerting, believed himself to be the Lord and Savior of uiankind; not merely at the time of his coutlnement, which was alone necessai'y for my defence; but during the whole time that he had been triumphing over every attempt to sur- prise him in the concealment of his disease. I then affected to lament thg indecency of my ignorant examination, when he expresseil his forgiveness, and said, with the utmost gravity and emphasis in the face of the whole court, ♦' I am the Christ," and so the cause ende,\ Gentlemen, this is not the only instance of the power of concealing this malady. I could consume the day if I were to enumer- ate thein; but there is one so extremely remarkable, that I cannot help stating it. " Being engaged to attend tne assizes at Chester upon a question of lunacy, and having been told that there had been a meinoral)le case tried before Lord Mans- KiKLi) in this place, I was anxious to procure a rei)crt of it; and from that great man himself (who within these walls will ever be reverenceil), being then retired in his extreme old age, to his seat near London, in my own neighborhood, I obtained the following account of it: '.V man of the name of Wood,' said Lord Mansfield, ' had indicted Dr. Monro for keeping him as a prisoner (I believe in the same mad-house at Iloxton) when he was sane, lie underwent the most severe examination by the defendant's counsel witliout exposing his complaint; but Dr. Battye, having come upon the bench by me, and having desired me to ask him what was bei-ome of the princess whom he had corresponded with in cherry juice, he showed in a moment what he was. lie answered, that there was nothing at all in that, because having l)een (as every body knew) imi>risoned in a high tower, and being debarred the use of ink, he had no other means of conre- J le knew he ctly as ail}- lersoii who )rehen.sioi», s tlie Duke iniiu'd him. f exainina- n you have it it), that led for tlio II wlio had d-house at s evidence, 1 what his fact ; bu t expose his ng expci-i- (1, and the ired to tlie tlie most , wlio had name, l)y From Dr. [• examin- L' Ijiihit of merely at ence; but pt to sur- iment tlic; ness, and rt, ', 'directed Dr. Monro to be acquitted; but this man W(jod, l)L'iiig a mrrchant in I'lnlpollane^ and having been carried through the city on ids way to the mad-liouse, he indicted Dr. Monro over again for the trespass and imprisonment in London, l indictment before, althouglihe still had the same indelible impression upon his mind, as he signilleil totliose who were near him; l)Ut conscious that the delusion had occasioned his defeat at Westndidster, he obstinately |)ersisted in holding it hack.' "Now, gentlemen, let us look to the application of thesi- cases. I am not examining, for the present, whether eitlu-r of these persons ought to lia\e l)eeu acquitted, if they had stood in the place of the i)risoner now before you: that is quite a distinct c Erskiiio's Aryiiineiit. ,'oiild be •iods lie murder I admit, must be If I tiusi, the mdoubt- isely the 1^ is the person crime; ■r, when ind was an wli'>, yet not ant dis- 'videnee iKi close clearly I shall 5 leave you in the hands of the learned judges to declare to you the law of the land, and shall no. seek to place society in a state of uncertainty by any api)eal addressed only to your compassion. I am appointed by the court to claim for the i)risoner the full i)rotection of the law, biit not to misrejiresent it in his [)ro- tection. " (lentlen' -i the facts of this melancholy case lie within a narrow compass. " The un. •'.luate person before you was a soldier. He liecame so, 1 believe in the year 1 ■• , and is now about twenty-nine years of age. Jle served in Flan- ders, under the Dr.keof York, as appears by his Koyal Highness's evidence; and being a most approved s(jldier, he was one of those singled out as an orderlyman to attend upon the person of theconnnander-in-chief. You have been witnesses, gentlemen, to the calmness with which the i)risoner has sitten in his place during the trial. There was but one exception to it. You saw the emotion whicli over- powered him, wh( n the illustrions person now in court, took his seat upon the bench. Can you then believe, from the evidence, for I leii you fmd from the Crown's evidence, that wlicn he was dragged through the orchestra under the stage, and charged with an act for which he considered his life as forfeited, he addressed the Duke of York with the same enthusiasm wliich has marked the demeanor I am advert- ing to. Mr. Richardson, who showed no disposition in his evidence to help the prisoner, but who spoke with the calmness and circumspection of truth, and who had no idea that the person he was examining was a lunatic, has given you the account of the burst of affection on his lirst setniig the J)uk of York, against whose father and sovereign he was suppoNcd to have had tlie consciousness of treason. The king himself, whom he was supposed to have so malignantly at- tacked, never had a more gallant, loyal, or suffering soldier. His gallantry and loyalty will be proved; his sufferings speak for themselves. "About live miles from I. sle, upon the attack made on the British army, this unfortunate soldier was in I'ic Fifteenth Liglit Dragoons, in the thicki'st of the ranks, exposing his life for his jirince whom he is supposed to-day to have sought to murder; the first wound he received is most materially connected with the subject we are now considering; you may see the effect of it now. The point of a sword was impelled against him with all the force of a man urging his horse in battle. When the court putthe prisoner under my protection, I thought it my duty to bring Mr. Cline to inspect him in Mewgate; and it will appear by the evidence of that excellent and cmiscientious person, who is known to be one of the first anatomists in the world, that from this wound one of two things must have happened: either that by the immediate operation of surgery the dis- placed part of the skull must have been taken away »." been forced inward in the brain. The second stroke, also speaks for itself; you may now see its effects. (Here Mr. Erskine touched the head of the prisoner.) He was cut across all the nerves which give sensibility and animation to the body, and his head hung down almost dissevered, until by the art of surgery, it was placed in tlie posi- tion in which you now see it ; but thus, almost destroyed, he still recollected his U ■n 210 THE LEGAL TEST OF INSANITY. Notes. duty, iiiid continued to niiuntain the glory of Ins country, when a sword divided tlie nicniijnine of his necl\ wiiere it teniunates in tlie head; yet he still kept Ids place, though his lielinet had been thrown off by the blow which I secondly de- scribed, when by another sword, he was cut into the very brain. You may now see its membrane uncovered. Mr. Cline will tell you that he exanuned these wounds, and he can better describe them. 1 have myself seen tliem, but um no surgeon; from his evidence you will have to consider their conseciuenees. It may be said tliat many soldiers receive grievous wounds, without their i)roducing insanity. So they may undoubtedly, but we are here ujion the fact. There was a discussion the other day, on whether a man, who had been seennngly hurt by a fall beyond remedy, could get up and walk; the people around said it was im- possil)le, but he did get up and walk, and so thi're was an end to the impossibility. The effect of the prisoner's wounds were known by the innnediate event of in- sanity, and Mr. Cline will tell you, that it would have been strange, indeed, if any other event had followed. We are not here upon a case of insanity arising from the spiritual part of man, as it may be affected by hereditary taint, by in- temperance, or l>y violent passions, the operations of Avhich are various and un- certain; but we liave to deal with a species of insanity more resend)ling what has been described as idiocy, proceeding from original mal-organization. There the disease is, from its very nature, incurable; and so where a man (like the prisoner) has become insane from violence to the brain, which permanently af- fects its structure, however such a man may appear occasionally to others, his disease is immovable; and if the prisoner, therefore, were to lite a thousand years, he never could recover from the conse(iuences of that day. " But this is not all. Anotlicr blow was still aimed at him, which he lu-ld up his arm to avoid, when his hand was cut into the bone. It is aw atllicting subject, gentlemen, and better to Ijc spoken of by those who understand it; and to end all further description, he was then thrust almost through and through the body with a bayonet, and left in the ditch among tlie slain. He was afterwards car- ried to an hospital, where he was known by liis tongue to one of his countrymen, who will be examined as a witness, who found him, not merely as ti wounded soldier deprived of the i)ower of his body, l.nit bereft of his senses forever. " lie was affected from the very beginning, with that species of madness which, from violent agitation, tills the ndnd witli the most inconceivable imaginations, wliolly unfitting it for all dealing with human affairs according to the sol)er esti- mate and standard of reason. He imagined that he had constant intercourse witli the Abnighty Author of all things; that the w^orld was coming to a conclu- sion, and that like our bles! voice of lieaveii, he wished that by the appearance of crime his life might betaken away from liiin by others. This bewildered, extravagant species of madness, appeared immediately after his wounds on his first entering the hospital, and on the very same account he was discharged from the army on his return to Eng- land, which the attorney-general very honorably and candidly seemed to intimate. To proceed with the proofs of his Insanity down to the very period of his suii- posed guilt. This unfortunate man before you is the father of an infant of eight HADFIELU S CASE. 211 Krskiiu'.s AruuiiiLiit. d divided 1 kept his nndly dc- umy now iiR'd tlu'sr )iit uiu nu L'llCCS. It l)r<)(lucinii riicro was iuirt by ii t was im- lossibility. ,ent of in- intU'od, if ity arislnj: int, by in- is and nii- )ling what )n. Thoiv 1 (like the meiitly af- otliers, his tliousand iilT Ol' IXSAXITV. Notes. fre(iiioiitly boon heard to ileeliire tliat Lord Onslow would ndn his country; and altiiougli he appeared from the evidence to be a man of most wild and turbulent manners, yet tiie people ro\ind (Inilford, who knew him, did not, in general consider him to be insane. His counsel could not show that any morbid delu- sion had ever overshadowed his understandinji — they could not show, as I shall, that just before he shot at Lord Onslow, he had endeavored to destroy his own l)eloved child. It was a case of human resentment, " I nujiht Instance, also, the case of Oliver, who was indicted for the murder of Mr. Wood, a potter in .Staffordshire. Mr. Wood had refused his dauij;iiter to this man in marriaiie. My friend Mr. Milles was counsel for him at the assizes. He liad been em|)loyed as a surfieon and apothecary by the father, who forbid lum Ids house, and desired him to brinj; in his l)ill for payment; when in the agony of disappointment and brooding over the injury he had suffered, on his being admitted to Mr. Wood, to receive payment, he shot him upon the spot. Tlie trial occui)ied a great i)art of the day ; yet for my own part I cannot conceive that there was anything in the case for a jury to deliberate on. IK: vas u man acting upon existing facts and ui)on human resentments connected wit.i them. He was at the very time carrying on his business, .vliieli reciuired learning and reflection, and, indeed, a reach of nnnd beyond the ordinary standard, being trusted by all wlio knew him as a practiser in medicine. Neither did he go to .Mr. Wood under tile influence of illusion; but he went to destroy the life of a man who was not placed exactly in the circumstances which the mind of the crinunal represented him. He went to execute vengeance on him for refusing his daughter. In such a case there might, no doubt, be passion approaching to frenzy, but there wanted that cliaracteristic of madness to emancipate him from crinunal ju.^tice. " There was another instance of this description in the case of a most unhappy woman, who was tried in Essex for the murder of Mr. Errington, who had seduced and abandoned her and the children she had borne to him. It must be a consolation to those wlio prosecuted her, that she was ac(|uitted, as she is at this time, in a most undoubted and deplorable state of insanity; but I confess, if I had been upon the jury who tried her, 1 should have entertained great doubts and difllculties; for althougli tlu' unhappy woman had before exhibited strong marks of insanity, arising from grief and disappointment; yet .she acted upon facts and circumstances, which had an existence, and winch were calculated upon the ordinary principles of human action to produce the most violent resentment. Mr. Errington having just cast her off and married another woman, or taken her under his protection, her jealousy was excited to such a pitch as occasionally to overpower her understanding; but when she went to Mr. Errington's house, where she shot him, she went with the express and deliberate purpose of shooting hini. That fact was unquestionable; she went there with a resentment long rankling in her bosom, bottomed on an existing foundation; she did not act under a delusion that he had deserted her when he had not, but took revenge upon him for an actual desertion; but still the jury, in the humane (consideration of her sufferings, pronounced the insanity to be predominant over resentment and they ac(iuitted her. But let me suppose (whlcli would liken it totlie case before us), that she had never cohabited with .Mr. Erringtcni: that she never had had cliildren by him; and consequently, that he neitlier had, nor could possibly have deserted or injured i IIAUFIELD S CASE. 215 Erskine's Argument. nitry; and 1 tnrbiilant in goncriil irbid dclu- , as [.shall, )y Ills own murder of iUt to tills sizes, lie orbkl liini the agony Ills being Tlie trial that there etingupon le was at reflection, i<)iis which distracted him were sometimes in other respects, as contradictory as they were violent. " Of this inconsistency there was a most striking instance on only the Tuesday hv'fore the Thursday in (|uestioii, wlieii it will lie proved, that he went to see one Truelock, who had Jeen committed by the Duki' of Portland as a lunatic. This man had taken up an idea tliat our Savior's second advent and the dissolution of all human things were at hand, and conversed in tliis strain of madness; this mixing itself with the insane delusion of the prisoner, he immediately broke out upon the subject of his own propitiation and .sacritice for mankind, although only he day before he had exclaimed, that the Virgin Mary was a wliore; that Christ was a l)astard; that God was a thief, and that he and this Truelock were to live with him at White Conduit House, and there be enthroned together. His mind, in short, was overpowered with distraction. The charge against the prisoner is the overt act of compassing the death of the king, in firinga pistol at his majesty, an act ■which only differs from murder inasmuch as tlie bare compassing is equal to the accomplishment of the malignant purpose; and it will l)e your oflici', un- der the advice of tlie judge, to decide by your verdict to wliieli of the two impulses of the mind you refer the act in question; you will have; to decide whetlier you attribute it wholly to miscliief and malice, or wliolly to insanity, or to tlie one mixing itself with tlie other. If you find it attributable to mischief iiiid malice only, let the man die. The law demnnds his death for the public •safety. If you consider it as conscious malice and mischief mixing itself with insanity, I leave him in the hands of the court, to say how he is to be dealt with; it is a question too difficult for me. I do not stand here to disturl) the order of ■n, upon the whole, the question will be, whether all that has been proved a'>ont t!'e prisoner at the bar shows that he was insane at the time when the act was done, whethi r the evidence given proves ,", disease in the mind as of a piTson quite incapalile of distinguishing riglit from wrong. Something has been said about the power to contract, and to make a will. But I think these things do not snpitly any test. Tlie (|uestion is, whether the prisoner was luhorng under tliat species of insanity which satisfies you that he was quite un.nvare cf the nature, character, and conscciuences of the act he was committing, or in other words, wiietlier he was under the iutlnencv^ of a diseased mind, and was really unconscious at the time he was committing the crime, that it was a crime. Witli respect to tlie letters and papers they may be brought forward on either side of the question." In Beg. v. Iligginson,^ tried in 1843, tlie prisoner was indicted for the wilful mi ali be an an ali 1 IC. &K. l;}0(l»t:i). PARTICUIiAR RIGHT AND WRONG TEST. 221 R. V. Viui'ihan — R. v. Biirtoii. murder of his son, Charles Higginsoii, a child five years old, bj' burjMiiji hiin alive. There was another count in the indictment, which charged his death to be by a mortal fracture of the skull. The facts of the case were clearly proved; and it appeared that the child, who was in perfect health, was taken into a wood, and there buried by the prisoner; and on the learned judge infiuiring of Mr. Greatrix, the surgeon who was called as a witness fortiie prosecution, wliether a fracture of the skull of the child was the cause of his death, or whether the child had, after the fracture of the skull, l)een suffocated by l)eing buried while alive, the prisoner said in open court : " I put hiu' in alive." The prisoner, wlio liad no counsel, made no defence, and said he hal no witness; l)ut Mr. Brutton, the governor of the prison, informed Mr. IJellamy, the clerk of assize, that it had i)een suggested to him that the i)risoner was insane. Tliis being .mentioned by Mr. Bellamy to the leaniLd judge, his lordship desired that any inTson who could depose to the prisoner's state of mind would come into the witness-box. Two of tlie officers of tlie prison, one of whom had known the prisoner since his committal on this (May 20, 184:5), and the other of whom had known him from the time of their l)eiiig at scliool together (the prist :er being twenty-six yeiirs of age), being sworn, dei)osed to the prisoner l)eiiig "of very weak intellect," and Mr. Hughes, the surgeon of the jn-ison, who was also called, l)y direction of the learned judge, stated that tlie p.'isouer was of " v(^ry weak intellect, but capable of knowing riglit from wrong." M.WLK, J. (in summing up, after adverting to the facts of tlie case), said: If you are satisfied that tlie prisoner eonimitted this offence, but you are also satis- lied by the evidence that, at the time of committing the offence, the prisoner was so insane that he did not kv w riglit from wrong, he should lie acquitti'd on that ground; but if you tliink t, at the time of the coinmittiiiii of the offence, In; did know right from wrong, lie is responsible for his acts, although he is of weak intellect. Verdict — guilty; and the prisoner was afterwards executed. This test was finally ailopted by the answers of the judges to the House of Lords in iVcA'ai/fttoi's C«.f^,' wnere they laid it down: "To establish a defence oil the ground of insanity, it inustl)e clearly i)ro\ ■;! tliat at the time of the commit- ting of the act, the party accused was lalioriiig i" ler such a defect of reason from ilise.'ise of tlie mind, as not to know llie nature and (|uality of tlie act he was (lo- ng, or if he did know it, that he did not know he was doing what was wrong" and this test is now the settled rule of the Knglish courts. In It. v. Vntighan,'^ Tiy:DAU, C. J., said: " It is not mere eccentricity or singu- larity of manner that will sufflce to establish the plea of insanity; it must be siiown that the prisoner liad no competent use of his understanding so as to know that he was doing a wrong tiling in the particular act in (piestion." Ill lieg. V. Barton,^ the prisoner was indicted for tlie M'ilful murder of Harriet Tiarton, on the 22d of June, by cutting lier tliroat with a razor. The prisoner and the deceased were liusiiand and wife, and up to the d.iy named in tlie indictment, he liad always treated her and their cliildren with kindness. On the aftfrnoon of the 21st of June, tlie prisoner and liis wife were seen talking with tlieir next-door neighbor at their door late at niglit, and at four o'clock on tlie followliii:- morning it was discovered tliat he had cut tlie throats of his wife and child, and that he had 1 10 CI. A; F. 200. ■^ 1 CoxC. ('. 80 (1844). ' 3 CoxC. C. 2-:, (1848). 222 THE LEGAL TEST OF INSANITY. Notes. attempted to commit suicide. When questioned by the surgeon, ho exhibited no sorrow or remorse for liis conduct, but stated tlmt "trouble and dread of poverty and destitution had made him do it, feariusj that his wife and child would starve wlien ho was dead." Hu also said that ho had contem- plated suicide for a week past; that he had not had any quarrel with his wife, and that having got out of bed to destrcy himself, the thought had first come into his head to kill his wife and child; that he had at first attacked her while aslee]) In l)ed, and that she got away from him and rushed to the win- dow, calling for hell); that he then killed the child, and seizing his wife pulled her backwards towards lilm, in which position he had cut her throat. This done he next tried to cut his own throat, bu^ his powers failed him, and In did ■ '•( succeed, though he wounded himself sevirely, his wife having fallen down dead by his side. Tins narrative, coupled with a knowledge of the prisoner's private circumstances, induced the surgeon to form the. opinion that the jirisoner, at the time heconunitted the act, had not, in consequence of an uncontrollable impulse to which all human beings were suoject, any control over his conduct. The de- sire to intlict pain and Injury on those previously dear to the prisoner was in it- self a strong symptom of insanity, and the impossibility of res'stlng a sudden impulse to slay a fellow-being, was another Indication that the mind was insane There was not necessarily a connection between homicidal and suicidal monc mania, though it would be more likely that a monomaniac, who had contemplated suicide, should kill another person, than for one who had not entertained any such feeling of hostility to his own existence. Monomania was an affection which, for tlie instant, completely deprived the patient of a)I so'f-control in re- spect of some one particular sul)ject which is the object of the disease. It was true that the prisoner had no delusion and his reasoning faculties did not seem to be affected ; but he had a decided monomania evincing itself ni the notion that he was coming to destitution. For that there was some foundation, in fact, but it was his (the surgeon's) decided opinion that the prisoner was in an unsound state of mind at the moiueut he cut his wife's throat, though he would not be so in all cases of murder. It was also proved that on the 21st of June the prisoner had caused his razor to be sharpened, saying that he wanted to give it to some friend. Conch, for the prisoner, submitted that the jury were bound, after the testimony of the surgeon, to ac pnt the prisoner on tlu^ ground of insanity, and he proceeded to show by other witnesses that the prisoner utu] snffereda severe pecuniary loss not long be- fore the occurrence of tlie dreadful event now the subject of inquiry, and that It had produced a decided effect on his mind, giving rise to the most glo'>my an- ticipations on account of his wife and family. P.vkke, B., told the jury that there was but one question for their consideration now, viz , whether, at tin; time the prlsoiu"' Inflicted the wounds which caused the death of Ids wife, he was in a state of mind to be made responsible to the law for her murder. That would depend upon the questu)n whether he, at the time, knew Hie nature and charac- ter of the deed he was connnitting, and If so, he Wv.cv,- he was doing wrong in so acting. This mode of dealing with tlie defence of insanity had not, ha was aware, the concurrence of medical mi'n ; but he must nevertheless, exi)ress his decided concurrence with Mr. Baron Hoi.i'k's views of such eases, th 't learned judge hav- ing expressed his opinion to be that the excuse of an irresistible ImpuldC, co- exil catl nofl Soil insl sldl imi| Sctl tlnj cor one cle ThJ effi fro the wa sta the of; rAKTICULAIJ KIOHT AM) Wi;ON(f TEST. 223 R. V. Davis. existins; with the full possession of roasonins powers, mislit bo urged in justifl- cntion of every crime known to the law, for every man might be said, and truly, not to commit any crime except under the influence of some irresistible imjudse. Something more than this was necessary to justify an acquittal on the ground of insanity, and it would be, therefore, for the jury to say wlK'ther, taking itito con- sideration all that the surgeon had said, which was entitled to gi'cat weight, the impulse under which the prisoner had conunitted tins deed was one which alto- gether deprived him of the knowledge that he was doing wrong. Could he dis- tinguish between right and wrong? Reliance was placed on the desire to commit suicide, but tliat did not always evidence insanity. And here the pris- oner was led to attempt his own life, by the pressure of a real substantial fact, clearly apparent to his perceptive organs, and not by any unsubstantial delusion. The fact, however, must be taken into the account, for it might have had a serious effect on the mind of the prisoner, as also the absence of an.v attempt to escape from justice, and the want of all sense of sorrow and regret immediately after the dciilli of his wife, contiasted with his more natural state of mind after- wards wlien he felt and exjjressed regret and sorrow for his act. These circum- stances ougiit all to be taken into consideration; but it was ditflcult to see how they could establish the plea of iusauity in a case v, liere there was a total absence of all delusion. Guilty — sentence of death passed. In Eer/. V. Z>rtrj.v,' tried before Cuompton, J., in ls.-,8, the prisoner was indicted fur maliciously setting lire to a building witli intent to injure the o\vner. There was evidence that tiie prisoner was insane; among otlier tlnniis he had told a witness that he had tried to hang himself on a trei' near the liouse, and set fire to the tree. Cuo.mi'TOX, J., instructed tlie jury as follows: " It is not ne<'essary for tiie prosecution to prove express malice in tlie prisoner. Malice, in this case, does not mean that he hai' a particular spite r.ucainst the prosecutor. If a man being in his right nniid birus property belonging to auotlier, a jury ouirlit to infer malice from the act itself. Do you tlnd that the prisoner set the place on Are? If you do, are you of the opinion tliat he knew ri'j,ht from wrong? It is not sufikient that you should think tl at he did it from l)eing in a r-ckless depressed state of mind. You must find that, irom mental Misease, he did not know right from wrong. There seems to me ver\ little evidence to prove that. Ills statement about tlie tree, which appears to be true, is, however, a circui.istance for you to take into consideration in detiTmiiiiiiir his state of mind. Tliere Is no evidence, except his own statement to the coiistal)le, tnat he did, in fact, set fire to tlie liovel. Arc you satisded from that fonfessiin that he really did the act? If so, (lid he know right from wrong? The fact that he was attempting to "xtingui^h the fire, do"s not necessarily show that he did not cause ii, or that he did not know right from wrongwhen he did it. He niiut wliat would be the conse(iuenees to society if men wert; to say every woman who treated tliem in that way should die, and were to carry out these views by cutting her tliroat? The prisoner claimed to exercise the .same power over a wife as he could lawfully exerci.se over a chattel, but that was nota delusion nor like a delusion. It was the conclusion of a man who had arrived at results dif- ferent from those generally arrivid at, and contrary to the laws of God and man, but it was not a delusion. Evidence, indeed, had been given of au actual delusion in the prisoner's mind in supposing that there was a conspiracy against liim. This was an ajitand conmion instance of delusion. There was alsoevidence of insanity in the maternal line, and it was true that insanity was hereditary and did descend in families; the object of that was to show that it was possible, and not unlikely that the heredit.'iry taint might exist in the prisoner. All the evi- dence, however, failed to show the existence of any delusion in the prisoner's mind which could explain this act. None of his family conceived him to be mad It was clear that such an idea had not entered into their mind or they would not have recommended him to go and see Miss Goodwin. They treated him as sane from beginning to end, as a proper person to contract matrimony and re-engage the affections of this young woman. The account of his state of mind upon re- ceiving her letters was most probably correct. Mo^t men would probably suffer in the same way under similar circumstancs. It had been said by one of the witnes.ses that the prisoner did not know the difference between good and evil. If that was a *-:n Alabiiina, Ciiliforiilii, Dclawan,'. rriinc? If not satisllcd of that, tlicii (assiiiniim tliaf tlioy came to a similar con- clusion on tills llrst iiiiostioii) tlicy must llnd lilm jruilty; if otlicrwisc, tlu-n not tfuilty, on tlio yroimd of insanity. Tlic jury llrst pronounced tlieir llndin«, tiiat tiie prisoner was now of sane mind, and tlicu, tliey returned tlio yeneral verdict of "guilty." V^erdict guilty. Sentence, death. § 7. The English Tests in the American Courts. — Of tlie four Icjral tests of insanity wliicii we liave .seen liave i)cen adopted at different times l)y tlu! Kn;;lisli judges, vi/.: (1) the " ciiild " test; (!') tlie " wild l)east " test; (:'.) the test of lanby, 1 Houst. Cr. Gas. 166 (1864) ; State v. West, 1 Houst. Cr. Cas. 371 (1873) ; State v. Brown, 1 Houst. Cr. Cas. f>39 (1878) ; State i-. Hurley, 1 Houst. Cr. Cas. 371 (1873); State v. Windsor, 5 Harr. (Del.) 512 (1851) ; State v. Dillabunt, 3 Harr. 661 (1840). '^:^. IMAGE EVALUATION TEST TARGET (MT-S) /. ^' Mi. u.. 1.0 I.I |J0 "^ ■■§ ■^ Uii |2.2 :^ I4£ 12.0 L25 III! 1.4 I' ii 1.6 Photographic Sciences Corporation 33 WEST MAIN STMET WEBSTER, N.Y. MSSO (716) 873-4503 \ iV <> •s? :\ \ ^ ^* '^ '^ c\. v\ '<^ A 232 THE LEOAL TKST OF INSANITY. Notes. § 1 1. Georgria. — The same test prevails In the Georgia court.' In an early case it was helil tiiat where it is admitted that the prisoner is neither idiot, lunatic or insane, it is not competent to prove that he is of wealc mind. " All persons are considered by our code," it was said, "eapal)ie of committing crime who are ueitlier idiot, lunatic nor insane, and who have arrived at the aj;e of fourteen years, and before tluit age if tliey know the distirttiou l)etweeu good and evil, and if capable of committing crime they are liable to be convicted upon tlieir own confession. We cannot therefore recognize the distinction which is sought to be engrafted upon the law. It would lead to endless metaphysical discussion on the plulosophy of the mind. Besides, experience teaclies that in point cf fact the cunning and crafty are much more liliely to conceal and nusrep- rcsent the truth than those wlio are less gifted. It is the trite oijservatiou of all travel' IX that if you wish to learn the truth with respect to the health of a conn:; , y- i must interrtigate tlie children and .servants al)out the matter." * In Lloijd v. i'; .'\'it v.as said: " We see no material error in the judge's charge on the s!"bj""V. of insanity. In one sense all crime is insanity. Indeed, in view of the a\> ," 1 nspoiisii)ility t>f all of us to the judge of tlie quiciv and the dead, auy sin is ;. sort of insanity. But as tlie judge justly said, soeietj' cannot afford to treat a man as insane because he lias i)ecome so steeped in crime as to have stupilled his couseienc". Tlie judge stated the rule of responsibility froni the words of this court ovrr and over again repeated, tf)-wit: Was ths. accused conscious he was doing wrong? Was his mind sound enough to judge of the riglit or wrong of his acts." ♦ § 12. and Maine.''' Kansas — Maiiik that the only legal test of iiis;iiiity is the ability to know the ri'ziit from the wrong of the particular act, but that one knowing the right from the wrong may, in con.sequence of organic mental derangement, l)e incapable of exercising the will, and is therefore not amenable criininally for the act, tliree of our associates are of different opinion, and tlie judgment, tlierefore, cannot be reversed for tliis alleged error." In an earlier case it was said : "Where insanity is interposed as a defence to an indictment for an alleged crime tlie inquiry is always brought down to tln^ single question of capacity to distinguish between right and wrong nt the time when the act was done. • ♦ * Tlie Insanity must be such as to deprive the party charged with the crime, of the use of reason in regard to ilie act done. Ttie prisoner may be ' People V. Finley, 38Mich. 482. 5 10 Minn. 223 (1*«). * Bovard t). Stato.SO Miss. 600(1866) ; New- comb V. State, 37 Miss. 383 (185U) ; Cunning, ham V. State, S6 Miss. 269 (1879). « .State r. Kedcmeier, 71 Mo. 173 (1879). • 74 Mo. 247 (1881). • 71 Mo. 173. ' 74 Mo. 199. 234 TlIK LtXiAL TKST OF INSANITY. NoU's. •IcraiiiriMl on other subjects, tint if oapiible of (lisiitr^uisliimi lu'twcfii ri^ht and wron:: in the pariicnlur act done by iiini, lie is justly lialile to bo punished as a criminal. Such is the un(loul»ted rule of the coninioii law on this subject. Partial insanity is not by that law necessarily an excuse for crime and can only be so where it deprives the party of his reason in rcLranl to the act chariicd to be criminal. The instructions hero jiiven brought down the (piostion of insanity in rcf^ard to the act done. If tiie prisoner had been ,sane on all other subjects, and yet not able to know whellier the act eharnid airaiust him was riirht or wrotiit, owini; to some morbid and dise.-ised hallucination of tiie mind upon the very subject, the jury were instructed to tind him not ) drujiken insanity. The tirst, is insanity api)lie(l to objects generally; the second, is applied to sinixle objects; the third, occurs .it periods, with sane intervals; the fourth, is a inorl>id perversion of the natural feeliuyis, affections, etc. ; and the fifth, is that which results directly from intoxication. Now, the rules applicable to crimes committed in any of these decrees of insanity are maiidy those of sound reason. Thus, it is conceded to be the law that insanity occasioned directly by intoxication is no excuse for a crime committed by one in that state. If it were otherwise, a man by drinking to excess coidd divest himself of lesial responsi- bility, and firatify his thirst for venireance with impunity. In rejiard to the other kinds of insanity, the rule is laid down in a ^jcreat variety of terms. The Eniilish rule is thus stated, in Bellinnham'' >^ Case, by Chief Justice .Mansfield: ' In order to support the defence of insanity, it ou^ilit to be i)roved, by the most direct and niKpiestionaijle evidenee, that the prisoner was incapable of judiiin^ between ri;;ht and wronjr; that In fact it nnist be proven beyond all doubt that, at the titnc he committed the atrocious .act with which he stood charged, he did not consider that murder was a crime against the laws of God aud nature.' As long as they could distinguish good from evil they would be 1 > state r. Hiiting, 21 Mo. 464 (1S55), citing McNa>;hti:n'R Case, 10 CI. & F. 210; Freeman V. l'e(>|>le, 4 Dcnio, 29. - llawe f. State, 11 Neb..W7(38 Am. Rep. 537) 1S81); Wright r. People, 4 Neb. 407 (lS7rii. » Stater. Spenccr,21 N.J. (I..) l!«5(1fttfi). * Cole's Trial, 7 AOb. Pr. (.v. s.) ^21 (1868) ; People V. favanaugh, f.2 IIow. Pr. 87 (1881) ; People t'. Doviiie, 1 Edm. Sel. C'a8.594 (1848) ; People 1'. (irillln, 1 2 liarb. 566 (1848). TEST IN NKW YOKK. 235 I'lOplr V. I'illc. ( .imoiiablf for their conduct. Lord LvxinnitsT, in Hex v. Ojfurd, put tliis (|ups- tion: 'Did tiic prisoner know tliat in doiii^ the acl lie offended a^jainst tlie laws of (Jod and man?' Aeeordin;; to tlie Scoteli rule, tlie insanity must l>e of such a Itind as entireiy to deprive tlie jirisoner of the use of reason, as api)lied to tlie act in question, and tho knowledfie that he was doinir wronu in coniniit- tin;? it. If, althousrh somewhat deraimed, he is able to disliniiuisli ri;;lit from wroiii? in ids own case, and to know that he was doin-; wr(Mi^ in the act which he coniniitted, he is liable to the full punishiiient of his criminal acts. " In the case of Altner Rogers, tried in Massachusetts before Chief Justice SiiAW, in 1KI4, he laid down the rule as follows: 'A man is not to be excused from responsibility if he has capacity and reas punislinieiit.' Altlioii^li he may be labiu'iuii uiidtr partial insanity, if he still understand tlm nature and character of his act aiirrievance. The Massachusetts rule is, that if the Imaiiinary facts would, if true, justify tlit; act, then he is excusable, — as, wh .1 the prisoner supposed that the person was about to kill liiiii, and he slays the other iu self-defence. There must Ije an immediate apprc- liension of dandier. '•.\pplyinij the iirinclple to the present case. If the prisoner really believed that Mrs. Uussell was in the act of conimittiiii; a ;rreat personal injury to him, and supposed that lu! shot her in self-ilefeiice, he would be excusable. Hut it would be no defence that the supposed Uussell or his wife had injured him to any extent, because if it were true it would be no jnstillcation of tlie act. If a breach of promise or auythin;^ of that kind was the oriiiin of tht- act, and this was done by way of reveiijie. he is not excusable. A sinijile and sound rule may lie thus expres.sed: A man is not responsible for an act, when, by reason of involuntary insanity or di lusion, he is at tlu; time incapable of perceiving that the act is either wrong arently .sane. On Saturday and Saturday exciiing he is proved to have been as sane as usual. On Sunday morning he was awakened by Sales, and cleaned the bar-room •, sane yet. Took his bn'akfast as usual. Between ten and eleven o'cIr,ik he and Mr. Holmes looked over the accoimts and settled. About the same time he had a brief conversation with Mr. Bishop at the stable. Mr. Frear saw him al)()ut twelve o'clock, three-fourths of a mile from Russell's, going north; exchanged a few words and considered him sane. Mr. Doty saw Mm about one-fourth of a mile from Russell's and did not dlscovir any signs of insanity. It is true thai he drank several tims; and one witness speaks of his having a wild eye; but the great mass of proof establishes him to be as sane as usual, nearly np to the time of the commission of the deed and not excessively Intoxicated. When, then, did he become insane? was it at the moment of the act? The act itself cannot be taken as evidence ; it must be proven otherwise. Can it be supposed that during all the prellminjiry arrangements of nearly three days, and then became insane just at the time of firing the pistol? C:m you believe that at the time this a3t was comnjitted, the prisoner was so insane that lie was not able to perceive that 238 THE LCUAL TEST OF INSANITY Notes. tlio act was wroiiii nr unlawful? Aiialii let us look at Ills suhsoqui'tit coiKluct. Imincdlattly aftiT tlii' dcrtl was poriu-tralftl, lie tlt-tl. Wliy iliuk.s, it is u dictate of liinimii reason, tliat the very act of flee- ing and secntini: himself, is inconsistent, uenerally, with the Idea of his not knowing; Ihiit the act was wroiiu and unlawful. The prisoner kept him.self secreted with gri at skill and cunniiii; from Sunday till Wednesday, when lie was arrested. No traces of insanily were fouiKl on him when taken. If lie had the predisposition to Insanity claimed by his counsel, which could be hrouiiht into action liy suffering; or excitement, it is stranite Indeed that he was not palpably nmd when discovered, and now, on the trial. Trace him down to the preseiittlme. He at once declared that he had shot her and would have dom- It if her husband had belli present ; that her death was all he asked for. Vou have I'.eard the medical witnesses. Doctors Deyo, and Ilufihson, who both say that he has been sane since his coiiUnrment. Tlie letter of tht; llrst of February, 1H4H, bears no mark of insanity, but shows that he was aware of his situation and preparing; for his defence. Now all these facts are strikiiijily Inconsistent with insanity. The insane man when he commits a crime, jrenerally does wot attempt to escape, because he does not know that he has done wrony; and deserves jiunishment, nor can he make a skilful preparation for his defence. »' It is for you to say whether, under this testimony, you can find that this man was insane when he .shot Mrs. Russell. His conduct here Is an unsafe b.isis for a verdict of acipiittal. You are to consider the case with care and jiatlence, and if made out to your satisfaction, give him tlie benetlt of it. lint you are al.so to remember that you are administerini; criminal laws; laws made for the protec- tion of .society, laws to whi.h we must look for our safety. If this isaeaseof murder, it ought to be punished as such. The prisoner deserves It. The example to otliers Is refpiired. The delibirate murderer .should never again be permitted to walk our streets, with an oi)portunity to repeat his crime, and encourage others in the gnitillcatioii of their revengefid passions. Upon the whole, gentlemen, it Is for you to say whether this man committed the deed wilfully and understandingly; if not he must be acfiuitted. Public justice does not re5 (1854); People V. Lake, 1» X. ^■.i■)8 (KVi). TEST IN NKW YOUK, 2.39 IVople r. Liikf. and jniljji' charjjrd tlicin as follows: " Tiic statiito dcclaros tiiat ' no insano person can bo tried, sentenced to any punlsliincnt, or punished for any crime or offi-nce, while ho continues in that state? " The prisoner stands indicted for tlieiiiirlio-t offoncu known to the law, murder, anersons, no matter how intelligent, cannot give an opinion, but any man who has aciiuired, as an addition to his name, tliC letters M. 1)., be he ever so ignorant, can give you his opiiiioi'. Another riuestion arises, are you to base your verdict upon the opinion «f medical men or your own? "On tills subject, the whole theory of jury trials, and the reason of the case, satisfy ine that it is your opinion, and not that of the doctors w hich is to make up the verdict. TKST IN NKW YOUK. 241 IVopli! 0. Liikf. " How imicli rfUaiRV you should pluoe on the opinion of a njodical witiKss, de- pends n|)oii his sl\ill, Ids nuans of jud;;inK of liu' true nKiital condition of tlic prisoner, and tlie facts he details to you as tlie Itasis of that opinion. *' Mathenialics, chendstry, philosoi)iiy, and surj^ery are sciences; but ntcdicine, unfortunately, cannot bu ranked anion^ them, liet ween allopathy and hoiii(i>- opathy, and tlie various other systems, every nostrum and every humbu;; has its practitioners and its victims, iuit there are, nevertheless, anions those who i»ur- sue this profession scientillc men, whose oi)linons on mental or physical diseases are entitled to consideration. There an; certain thin;;s wliich are settled, the state of the pulse and skin in fever, the effects of ct-rtain articles, used medi- cinally on the human system; so there are certain phenomena which, when they exist, are adniilli-d to be symptoms of insanity, .\monu these are wakefulness, want of appetite, or the reverse, an e.xcited pulse with cold extremities during the absence of any inthunmution, heat of the head, melancholy, an expression of the eye, hard to describe, liiit while it shows intellectual duliu-ss, exhibits a »*tare or wildness easily discernible l)y those; acipiainted with insanity, alternate lau^lhteriind weeplnji, withoutany ixrceplible or sulllcient cause, a suspicion of friends. These >ympt(mis, even witli those known to lie insane, are rarely, if ever, all present in the same person, ])Ut the I'xistence of any number of them, uccom- l>anied by incoherent conversation and unusual conduct, ordinarily prove the patient insane. Do these sym|itoms or any of them exist in the case of the pris- oner? The sheriff has testified in reference to his wakefulness; that he had watched him and never found him sleepiu}:, and never but once when he seemed to have been sleepin<;. Iloufihtalinji has ^iven evidence in reference to his want of sleep the ni^lit foHo\viny Dr. I'pton, wlio asked the prisoner why lie travelled so nuieh In the nl;;ht, just before the homicide. To this he replied that iie could <;et no rest nt home, and in de.scrii)ini; tlie methods resorted to to obtain rest said he was In the habit of ^oin^ down Htains and leaning against the bags of oats to sleep, Instead of sleeplni; In a l)ed. Heck, in his Medical Jurisprudence, (piotinK from Il.isam, says: '*Tho symptoms are aggravated being placed In a recumbent position; and patients, when In the raving state, seem, of them.selves, to avoid tlie horl/.ontal position as much as possible, and when so conllned that they cannot be erect, will keep them.selves seated. This remark ap|)lle.s e(|Ually to mania and mcnonKinla." If Lake prior to the murder could not sleep idghts, could tlud no rest, went Instinctively to a place where he could lean against the l»ag of oats, Insli'ad of lying upon a bed to sleep — here Is a very strong evidence of In.sanity. It is scarcely possible that he yesterday, when stating this fa<-t to the physicians, knew Its effect as evidence, for it seemed to attract no attention from them, and had not been alluded to by counsel ; but to my mind, it Is a most controlling circumstance In the case, and irreconcilable with the theory of simulated insanity. Again, we (ind that yesterday when the court adjourned It was aiuiounced in the prisoner's presiiice that the object was to allow i)hyslcians to make a personal examination, and testify In reference to him. They did make that examination; then, If ever, he would have feigned Insanity or \ •ould have refused to answer. Hut on the contrary he answered every »|Ue.stlon, was accurate in tiates until he was asked In reference to the hondcide; and as to that .said if his ' wife was black then It was all right; if not then he was accountable;' and as a reason for killing his children, that ' when the body went down to the ground It needed neither food nor raiment.' This to mo resembles delusion far more than simulation. "Again, wakefulness cannot be feigned for any continued length of time. Dr. Beck says: ' Pretenders are unable to prevent sleep. That wakefulness which Is so constant an attendant on the In.sane, is .scarcely to be |)re.served for any length of time by tho.se who are In actual health.' lie then cites the case of a seaman, who to escape punishment, enacted the part of a furious maniac; sound sleep overpowered him on the second night of attempt. This must be so; for sleep is not a voluntary state. No man, by his mere volition, can put himself to sleep, nor ciin the strongest ■will, unaccompjinied by mental and physical excitement, prevent it. Hoth mind and body re(|uire it, and it comes unbidden. " The counsel for the prisoner insists that the homicide Itself proves the Insanity of the perpetrator. To hold this sulllcient evidence to establish insanity would l)c dangerous; but it is projuT to e.vamine the act with all its attendant circum- stances, and .see whether it is most consi.stent with real or pretended insanity; see if yon could discover a motive, or a sutllclent motive; whether these victims stood in his way, wliether there was any jealousy of his wife. And in doing this yon are to regard the prisoner as a human being, possessed of moral, intellectual and physical faculties, swayed by passions and actuated by affections. But you will not allow tlie iitrocity of the act alone to satisfy you of the Insanity of the perpetrator. TEST IN NKW YOKK. 213 Pi'oplf V. Lakf, Willis t'. Pfdplo. " I r('«r«'t tlmt you hiivc not imd more aid from professional nii'ii of MilTlrii'iit skill to (Iclcriiiliiu tlic prisoner's actual condition. The same antliur from whom I have beforo qinMi'd, says: ♦Madness Is most commoidy feiu'ned for the purpose of escaping tlie pnidslinient due to crime, and the responsil>ility of tlie medical examiner is eonse(iuently frnat. It is his duty and should lie his privi- h'iiv, to spend several days in tlie cxundnation of u lunatic, liefore he pronounces a decided oplidon.' Tins has been ne^ilected In this case, thoniih the prisoner has for nearly two years occupied ii cell in your jail. Hut you are now mi will s.iy so, and he will flien bo placed where he will be treated for his disea.-r, and If restored to sanity, will be tried for the offence. If, on the contrary, the evidence fails to s.itisfy that lie is insane, you will pronounce him sau' . md \\< will tlun proceed to his trial for the crime. You will not fail to renumber diirin!: your deliberations, tliat i'. Is you who arc to settle this «pu'stioii. and not ti. -oiirt ; that If any intima- tion oi an opinion lias Inadvevlently escaped, ym \Md only rejrard It u^ far as it was supported l)y satisfact(»ry reasons. The prisoner, If insane, Is most unfortunate In having been 8o lon^ conflned, and treiiled merely as a crindnal; if he is not insane he is still more unfortunate in beinji the perpet'^itorof a mur- der, which in its atrocity is scarcely paralleled in tlie dark aimids of crime." The jury found Iho prisoner insane. In Willis V. People,* tlie prisoner was indicted for tlie murder of Mary E. Phelan, by stabbiiifj. His defence, was insaidty, l)iit he was convicted. Onappcal to the Court of Appeals for errors in tiie judiie's chariie, the judf^tiwut was alllrmed.' " I am of opinion," .said Dknio, C. J., " tliat tlie cliarjro in its f^eneral scope was entirely correct, ami that there was no error in the particidar part which was specially excepted to. The judge instructed the jury, in effect, that ;in irritable temper and an excitable disposition of mind did not constitute In- sanity; that an individual possessinji such mental pecidiarities was more predis- posed to an attack of insanity than men in {renerai, but was not on that account actually insane; that .such peculiarities were not of themselves evidence of In- sanity. He then i)roceeded to state what ,'k before the killing, he talked and acted like an insane man, his face was flushed and his manner excited. Three physi- cians of the largest experience and greatest intelligence, gave it as their opinion that in view of his acts and conversations, and of the bodily and mental condition in which they found him, lie was insane at the time the crime was committed. Other physicians, gave it as their opinion, that, judging from the facts proved on the trial, he was sane when he committed the murder. Several persons who had known the prisoner for years and hiid transacted business with him, testified that they had never discovered any evidence of insanity in his conduct or deal- ings. After killing his wife, tlie prisoner took a razor and went to the barn, and attempted to cut his throat, but was prevented by the interference of his father and brother. On the same morning, and after the crime was committed, he sur- rendered himself to the police of Rochester; and on his way to the police office, he met a man of whom he was accustomed to l)uy feed for liis horse, and told him his father would pay what he (the i)risoiier) owed him. After he was taken into custody some of the witnesses testify that he was very much excited ; his ' 13Abb. Pr. (n. s.) 207. TEST IN NEW YOHK. 245 Peopk' V. Montijoinery. acts and sayings were irrational; others wlio saw him testify to liis relation of the killiny; ami the circumstances attending it, from wliicii It would appear that he told the transaction intelliitently and substantially as it must have occurred. The jury found him fjuilty, and he appealed to the Supreme Court. The follow- ing judgment was there delivered: " Ml'llen, p. J. (after stating the facts) : " I have given this very brief s\Tiop- sis of the evidence to show that tlie evidence was conflicting, and that it presented a case which it was peculiarly witiiin the province of the jury to decide. Unless, therefore, some rule of law has been violated, the verdict must stand, even if we should be of ihe opinion tliat upon the evidence we should have arrived at a conclusion different from that at which the jury has arrived. " Several of the witnesses who testify as to the appearance and conduct of the prisoner, during the week preceding the homicide, were his relations, and it is not doing them any injustice to say, that the jury would be justified in making some allowance for the bias under which they would naturally testify whether they were called by the People or the prisoner. It may be conceded for the pur- poses of the case that the weight of evidence is, that the prisoner was, at the time of the killing, insane; but we cannot for that reason set aside the verdict, unless the preponderance is so great against it as to justify the inference that it was the result of passion or prejudice. No such inference can lie fairly drawn from the evidence given on the trial. The case is one in Avhich the verdict might properly be rendered; and being rendered, the court cannot, and ought not to set it aside. " This brings us to the inquiry whether any error was comuiittcd by the court on the trial, or in the charge to, or refusal to charge the jury. "The first exception of the prisoner's counsel is to the charge of the court; that, when the proof shows a case of fixed or of confirmed insanity, the People were bound to prove that the criminal act was committed in a lucid interval, or after the prisoner was restored to his right mind. This instruction was not excepted to by the prisoner's counsel, and the question whether it was a proper in- struction is not before us. Instead of excepting, the counsel requested the court to charge that habitual insanity hiiving been proved it devolves on the prosecution to prove more than that the prisoner has been restored to a cooler moment, an abatement of pain or violence, or of a higher state of torture; to a mind relieved from excessive pressure. The prosecution must affirmatively prove that the act was conunitted in an interval in which the mind, having thrown off the disease, had recovered its general habit. The judge refused to vary his charge, and the defendant's counsel excepted. " The standard that the request asked the court to adopt, by which to determine whether the prisoner was responsible for homicide, is, whether his mind, at the time of the conmilssion of the crime, had thrown off tlie disease under which it hud been suffering and had recovered its general habit. By the general habit I suppose is meant its normal sound condition. " Whatever may be the rule on this subject in England or In the other States of the Union, this is not the test in this State by wliich responsibility for crime is determined. If, when insanity is shov.n, it is incumbent on the prosecution to show that It has altogether ceas'd to exist, that the minil has thrown off the 24 fi TIIK LEdAL TEfST OF IN8AMTY. Notes. disease and is restored to a lieultliy conditioti, tlie conviction of an offender would be praetically imp()ssil)le. " Tin; evidence of tlie pliysicians in tins case sliows tliat a man may appear to lie sane, tliat lie may tall< and act lilvc a sane man, and yet be in fact insane; and after a lapse of time l)ecome really sane, and be entirely forgetful of all that transpired dnrinii the period when ho was supposed t<) be of unsound mind. If perfect .soundness of mind must bo established, in order to make a person liable ft)r crime, we may as well confes.s at once that it is impossil)lo to .say with certainty that any man who commits crime is sane, aiul therefore responsible for his acts, (lod alone can determine when and to what extent man Is responsible for violation of either human or divine laws. Laws must be passed, prohibitinj; and punishius; crime. Tiio courts that are required to adndnister such laws, know tiiat crimes are not unfre 4 Den. ;>. a 32 N. Y. 715. ^ i TEST IX NEW YORK. 247 People V. Montgomery. •* By the Scotch law, the insanity must be of such a liind as entirely to deprive the prisoner of the use of reason, as applied to the act in question, and tlie knowledge that he was dolus; wrong in committing it. If though somewhat deranged, he is able to distinguish riglit from wrong in his own case, and to know that he was doing wrong in the act which he connnitted, he is ruil)le to the full punishment of his criminal act. In the case of Abner Rogers, Chief Justice SiiAW laid down the rule as follows: A nuin is not to be excused from responsi- bility, if he has capacity and reason sullicient to enable him to distinguish between rigiit and wrong, as to the particular act he was then doing. A knowl- edge and consciousness that tlie act he is doing is wrong and criminal, will subject him to punishment; altliougli he may be laboring under partial insanity, if he still understood the nature and character of his act and its consequences, if he has a knowledge that it is wrong and criminal, and mental power to apply that knowledge to his own case, and, to know tliat if he does the act, he will do wrong and rec(,'ive punishment, sucli partial insanity is not sullicient to exempt from responsibility for criminal acts. "Tlie English courts hold that it is no defence for a crime that the prisoner supposes he is redressing an injury or grievance. In Massacliusetts the rule is, that if the imaginary facts would, if true, justify the act, then he is excusal)le, — as when the prisoner supiwsed that the person was almut to kill him, and he slays the other in self-defence, there must be an immediate apprehension of (langer, ♦♦ It follows from tliese principles, that proof that the accused was insane when the crime was committed is not enougii to reiiuire the jury to ac<|uit. It must be shown that tlie insanity was sueli as to destroy, for the time at least, the con- sciousness of the distinction between riglit and wrong. " When such a degree of insanity is established, the People must prove, in o ' r to convict, that when tlie crime was committed the insanity had at least tem- porarily passed away, leaving the prisoner in tliat condition of mind in which he was morally and legally responsible for the crime. Proof of insane acts or ileclarations that are not of a nature to indicate disease of the mind that extends to all its manifestations, or that are not in their nature peniianeiit, fall short of establishing a defence for crime. The insanity proved in this ease produced great excitement, and it had enfeebled the prisoner's mind; but lie was, as a gen- eral thing, capable of transacting business, of conversing inarational manner, and of characteri/iiig the character and conduct of his wife, and of appreciating the danger to which his child would be exposed if brought up among the associates its mother had taken up her abode with, " I am of the opinion that the learned judge gave to the jury the correct rule as to what constitutes a lucid interval in view of the facts proved before liini. It cannot be said truthfully, that the prisoner was laboring permanently under that degree of insanity that rendered him irresponsible for crime. " The next exception of the counsel is to the instruction of the jury, that it was unnecessary for them to consider any other malice in this case than that which was implied in a premeditated design to kill. "The counsel does not claim that the law does not imply malice from the pre- meditated killing of a human being; that proposition is too well and too long established to be (luestioucd at this day. He does not, in terms, claim, that i>48 THE LEGAL TEST OF INSANITY. Notes. actual malice toward the deceased should be proved, in order to justify a convic- tion; but his view seems to be that the killing was not premeditated, bnt the re- sult of an insane Impulse which he had not the power to resist. If such Avas tin- cause of the killing it was not premeditated within the meaning of that term, as dellned by courts and writers on criminal law; so I. am unalile to perceive that part of the charge excepted, could affect the prisoner injuriously. "The prisoner's counsel offered to prove that his mother, fnmi his childhood, spoke of him as being discasi-d in mind, and that he was called in the family, crazy. This evidence was objected to, uud rejected ; and the prisoner's counsel excepted. " The counsel luis cited no case which holds such evidence admissible, except Wriijht V. Tiilham.^ I am unable to discover anything in that case that supports the counsel's proposition. The ((uestion there was, whether letters found in the house of the testator, purporting to be addressed to him by third persons, were competent, in which he was addressed as compos mrntis; but there was no evi- tlence to show that he had ever answered them, or recognized them in any way; and they were rejected. They were utterly incompetent. It was shown in that case, that children in the street called and treated the testator as an iiliot; and this evidence was held competent, not to prove the declarations made, but the manner in which the testator received them. It is on this princii)le that state- ments of third persons not made to or in the hearing of the person alleged to be insane, are inadmissible. The declarations or opinions of the mother are no more competent, on the question of tlie prisoner's insanity, than those of any other person. It is not one of those facts that can be proved by hearsay or repu- tation. The prisoner had the benellt of tlie fact, that relations of his father had been insane. " The particidars of the case were of no moment. Their insanity was an impor- tant link in the chain of evidence to establish the prisoner's insanity. The simi- larity of symptoms or of conduct could be proved by showing the .symptoms and conduct of each. But to permit a person not an expert to determine their simi- larity, would be to pernnt the witness to determine the very (piestion that was to be determined by the jury." The judgment was affirmed. In People v. Walts,^ the prisoner was indicted in a New York court for a murder conimitted in May, 187;i; he was convicted and executed. On the trial Wkstbkook, J., charged the jury as follows: " On the 2Ist day of April, I87o, the deceased, a resident of Albany, and a scissors' grinder by occupation, left home upon a tri|>. It was u trip such as he was accustomed periodically to make in diff'Tcnt sections of the country to follow his occupation. He llxed the date when he would return, which was somewhere about the beginning of May. Not having relumed by the time appointed, and the family having become somewhat uneasy frt)m his continued and protracted absence, his widow and her son-in-law (Mr. Kelch) left Albany in search of llolcher. They went to Hudson, Ron- dout, Poughkeepsie, and Catskill, and thence to the residence of the father of the prisoner, at whose house the prisoner also resided. They there had an inter- view with the prisoner and his father. I need not now go over in detail that 1 34 E. r. L. ITS. 8 ."iO How. Pr. 204 (1874). TEST IX NEW YORK. 249 rcopk- r. Waltz, continued. interview, I sliull have occasion to speak of it by and l)y on anotlier brancli of tlie ciise. Tliey returned from tliat interview to Ali)any. Tlie next day tliey returned fri)n» All)any to C'atsliill; having procured a warrant for tliu prisoner, ami also a searcli warrant, tliey proceeded, in company witliOllieer Ernest and uuder-slu rift Bennett, to the resideneeof the prisoner and his fat in r. Wiien tliey reaehed this dwelliu;L? an examination of tlie premittes tiiat in a room in tlie building, that was pointed out as the room where llolcher slei>t, there was blood upon the floor, wliieli had lieeii partially erased l)y serapini;, partially by plaining, and partially covered over l)y paint, and that blood led from this spot across tlie room and tlie liitclien to tlie outer door. Tliey also found lilood upon the partition separating tliis room, as I understand It, from tlie room in wliich tlie prisoner slept ; in tlie wood-house they found the lounge, wliieli had the appearance of having been recently washed, and on opening tlie lounge tliey found a (|uantity of blood partially hidden and partially covered over by ink, or .some black sub- stance. Pursuing tlieir investigatiun over tlie premises, they found a spot upon a road lea ling to the back part of the farm wliere tlie machine of the scissor's grinder, evidently, had been burned. They found the ashes, liinges, screws, and some other parts of the machine. They also found, at a i)lace near where the wall was lower than at other places, a nuinbi-r of bloody stones. Having made these discoveries they arrest the prisoner. After a denial of his guilt, and after an incarceration for a time in tlie jail, he tells them that if tliey will take him I/ack to the old farm again, that he will point out to them the place wliere the Ixxly of llolcher lay; they took him to tlie farm; he goes about the premises, and having viewed tlieni, lie proceeds to the house; he directs one man to go out an 85 X. Y. .173 (I880),.imrming People v. Moett, 23 Hun, 60 (18 iO). 5 52 N. Y. 467. 254 THE LEOAL TEST OF IXSANITV. Notes. iihlc doubt that at tbc monmiit the act allospd in tlio indictment was committed l)y tli(! |»ri.>;>>u'r. 'f iie dl(i conindt it, lie liad reason, perception and understanding siilllclent to Ivnow tliat tlic laws of Clod, and tlic land forbid him from committin;; it, and if he had not, tlie jury must acquit him." In response to tlds request, tiie jud;;e said: «I cliar-re, in the lan^ua^e of the Court of Appeals in that respect, and decline to cliarjie in tlie lanjiuajre of the request, and adiierc to my ori;?inal cliarire.' And to tlds the prisoner's coun.sol excepted, and lie now presents this exception for our consideration. We are of tlie opinion that the jury were fully and fairly instructed as to tlie law bearing upon tlie mental con- dition and tile legal responsibility of the pri.soner. P'verything is included in the charge more tlian once given, that the test of responsibility is the capacity of tlie prisoner to distinguish between right and wrong at the time of, and with respect to the criminal act complained of. Tlie laws of God and the land are the measure of every man's act, and make it right or wrong, and it is right or wrong as it corresponds with sudi laws. W-sen It is .said that a prisoner must, at tlie time of tlie alleged criminal act, have sufllcient capacity to distin- guish between right and wrong with respect to .such act, it is Implied that he must have sufficient cjipacity to linow wliether such act is in violation of the law of God, or of the land, or of both. It Is not the duty of the trial judge to present the matter to the jury in every possible phase and in every form of lan- guage which the ingenuity of counsel can devise. By such subtle, metaphysical distinctions, the minds of the jury would be confused, rather than enlightened or instructed." In People v. Coleman,^ tried in New York, in 1881, the prisoner was Indicted for murder, and the defence was in.sanity. D.wis, J., eiiarged the jury as fol- lows : " Insanity is usually spoken of, both in common language and in the books, as a defence to crime. But it is no defence, because, where the insanity recog- nized by the law exists, tliere can be no crime to defend. An insane person is incapable of crime. He is devoid, botli in morals and in law, of the elements essential to the constitution of crime, and hence is an object of pity and pro- tection, and not of punisliment. Therefore, whenever it is established that a party accused of crime was, at the time of its alleged commission, insane within the establislied rules of the criminal law, he is entitled to acquittal on the ground of innocence, because of incapacity to commit the offence, however monstrous his physical act may appear. Both humanity and the law revolt against the con- viction and puiiisluneiit of such a person. But insanity is a condition easily asserted and sometimes altogether too easily accepted. Hence, juries, wliile tlicy should be careful to see to it that no really insane person is found guilty of crime, sliould be eciually careful that no guilty person escapes under an ill- founded pretext of insanity. " It is important that juries on trials of alleged crirrc should clearly understand what insanity is, within the established rules of the criminal law. Without such rules the administration of justice in such cases would be dependent upon the shifting caprices of courts, of tlie equally unsubstantial passions and prejudices of jurors. In this State the test of responsibility for criminal acts, where insan- ity is asserted, is the capacity of the accused to distinguish between right and wrc Til .-iUi) sini the lolc late > 1 N. V. Crim. Ucp. 1 (1881). TEST IN NKW YOKK. 255 People V. Coleman . committed ck-rstiindlii'.' committing; Ills rcqnost, als in that lierc to my nd lie now on that the nt'ntal con- uded in tlic icity of the ith respect d arc tlie It is right a prisoner f to distin- led that he of the law 1 judge to rni of lan- ?taphysical ghtened or IS Indicted ry as fol- the books, lity recog- person is elements ■ and pro- led that a nc within lie ground nonstrous t the con - ion easily ies, while guilty of er an ill- iderstand tout such upon the rejudices re insan- :ight and wrong at the time and with respect to the act which Is the subject of inquiry. Tills rule Is stated by the authorities in diffen'Ut forms, but always in the same substance. In one ease it was said ' the ini|uiry is always brought down to tlio single question of rt capacity to distinguish between right and wrong at the tinjc tlie act was done.' Tliis was in the Freeman Case — tlie celebrated case of the colored man who was trieil for murder in Cayuga County and defended by tlic late William II. Seward. " In tlie most authoritative of the Enj;Msh cases, it is said: ' It must lie clearly proved that at the time of committing tlie o^ence, the party accused was laboring under such a defect of reason from distas/ of the mind, as not to know tiie nature and (|uaiity of the act he was doing, or, if he did know it, tliat he did not know lie was doinir what was wrong." And In a very late case in our Court of Appeals, a charge in that exact language was held to present the law correctly to the jury. *' So you will see, gentleman of the jury, that in this case, the firing by the prisoner of tlie shot by wiiicii tlie deceased was killed, being proved and admitted, and evidence to siiow the alleged insanity having been given, the question wliether the act was criminal depends upon your finding, as a matter of fact wliether, at the time of doing the act, the prisoner knew what she was doing, and that she was doing a wrong — or, in other words, did she know that she was shooting the deceased, and tiiat snch shooting was a wrongful act? If she did know these things, her alleged insanity is not established witliin the rules of the law, liowever much you may lie convinced tliat slie acted under the intensest emotional excitement, or however fully she believed .she was justified in avenging lur own wrongs, or however much you may think the deceased was deserving of punishment. The doctrine tiiat a criminal act may be excused upon the notion of an irresistible impulse to commit it, when the offender has the ability to dis- cover his legal and moral duty in resjiect to it, lias no jiiace in the law; and there is no form of insanity known to tlie law as a shield for an act otherwise criminal, in which the faculties are so disordered or deranged that a man, although he perceives the moral <|uaiity of his acts as wrong, is unable to control them, and is urged by some mysterious pressure to the commission of the act, the conse- quences of which he anticii)ates and knows. " This is substantially the language of tlie Court of Appeals in the case already referred to. If this were not the law, every thief, to establish his irresponsibil- ity, could assert an irresistible impulse to steal, wliicli he had not mental or moral force sufficient to resist, tiiougli knowing the wrongful nature of the act; and in every homicide it would only be necessary, in order tocscai)e punishment, to assert that anger or hatred or revenge or an overwlielming desire to redress an injury, or a belief that the killing is for some private or pulilic good, has produced an irresistible impulse to do a known illegal and wrongful act. So that really there could never be a conviction if the guilty party should assert and maintain an irresistible impulse, produced by some pressure which he could not iisist, as a reason for committing a crime!. To restrain such impulses is the \cza\ and moral duty of all men, and the protection of society demands that he who yields to them must take tlie conse(|uences of his acts. " You will understand, therefore, the exact distinctions upon which the law in criminal cases stands in respect to responsibility, to-vvit : that the party who 2.')«; TIIK LKOAL TK.sr OF INSANITY. Notvs. dors tl»f act knows what ho Is dohia;. If lie is tnilu'cllc — tlial Is, If lit- lins not Nonsc enough to know what lu> is iloin;;, wliiMi he tires a pistol at anotlu'i-, then he Is not anu'nal)lc to tho law as a criminal, Itccansc of jiis mental inea|>ucity. lint if he iias knowledice enon^rii to know that he Is lli-in<; a pistol — that liu is sliootln;; a pei>on, and tlureliy doin^ an act injnrious, or likely to bu injnrious to that person, and also has Knllieieiit sense tu know that that act Ih ii wrongful one — luM-annot assert an Irresistilile ini|(nise arisinu from any cause wliatever as a defi-nce or excnse. Wiialever tlie views of scientists (»r of tlieorists on tiie subject of insanity may be, and however jiivat a variety of classltlcatif)ns they in.iy adopt, tin' law in a criminal case l)rin;.'s tiie wiioie to this siniiie test: Did the person doinit tiie act at tiiat time have siilllcient sense to know wiiat he was (loiui;, and that It was wron;; to do it? If tiiat be his cundition, it is of no cun- scipience tliat lie acts nnder an lrresistil)ie intlneiicu or a snp|)osed inspiration in committinii tiie wromr, <»r a i)eiief tiiat tlie wronj; will produce some fireater fjood. Kmotional insanity, impulsive insanity, Insanity of tiie will or of the moral sense, all vanisii into thin air wiienever it appears that tlie accused party knew the difference between ri;ilit and wron-; at the time and in respect of tiie net he committed. No imaiiinary insidration to do a personal wroiii? to anotlier under a delusion or belief that some [^rcat pnlilic or private benetit will How from it, where the nature of the act done and Its |irol)al)ie consetpiences to tlie injured party, and that it is in itself wronir, are known to the actor, can amount to that Insanity wliich in law disarms the act of criminality. Under such notions of lejial insanity, life, property and ri;ilits, both public and private, would be altogether insecure; and every man who by brooding over his wrongs, real or imaginary, sliail work himself up to an irresistible impulse ' to avenge himself, can witli impunity become a self-elected jiulge, jury, and executioner In his own case for the redress of his own Injuries or of the wrongs of his friends, his party, or his country. But happily, gentlemen of the jury, that is not the law; and whenever such ideas of insanity are applied to a given case as the law (as too often they have been), crime I'scapes punisiiment, not through the legal insanity of the accused, but through tiie emotional insanity of courts and juries. " I have felt it my duty to give you my views of the law of insanity, as applica- ble to the case, in enii)liatic terms; but I assure you, gentlemen, I have no in- tention, in doing so, to affect your minds in determining the facts of the case to which you are to apply the law. The prisoner is entitled to a consideration of the facts of the case by you, uniuflueuced by any expression of opinion in respect to them by the court. " Having shown you the law of insanity applicable to the case, it is important that I should give you the law In respect to Its i)roof . The law presumes sanity in all cases. That presumption in a criminal case is prima fncie evidence of the sanity of the accused party, and, where no evidence tending to show the con- trary is produced, the case of the People, so far as relates to the question of sanity, is made out. The burden of overthrowing the presumption of sanity is upon the person who alleges insanity, and if evidence be given by him tending to rebut the presumption and to sliow insanity, then the general question Is pre- sented to the jury wlietlier the alleged crime was committed by a person respon- sible for his acts, under the rules of law which have already been laid down. Upon the question thus presented, the presumption of sanity and the evidence 10 lins not lluT, lIU'll iicaimclty. that lie is Injurious wrongful wliutfvtr sts ou tlie tlous tlu'y test: Did lit 111! was jf no coii- )iriition in If jiroaUr or of tin' ised party cet of tlu! () anotlur tlow from lie injuriil lilt to tliat notions of would l)e :s, real or c hiinsrll, n his own Ills party, law; and w (as too il insanity I. sapplica- .ve no in- le case to ration of m respeet mportant les sanity ice of the the con- estion of sanity is II tending )n is pre- 1 respon- id down. evidence TEST IN NOKTII CAKOLINA. 867 And in Ohio. tciulinp: to prove or disprove insanity arc all to bo considered l)y the jury, and at tlii.t stage of tiie case the ipiestion of sanity, iil\e all other material ((Ucstioiis of fact, becomes one on wlileli tlie prosecution liolds the alllrmatlve, and If reason- able doubt of sanity then exists upon the evidence before the jury, the prlsom r Is entitled to the benetlt of tliut doubt us upon any other material ({Uestlon of fact. "Now, gentletnen, this is iv presentation of the law in relation to insanity as applied to criminal ctiscs. We are not dealing with civil actions arising upon contracts or uiuler wills, where a (|uestloii of siillleieiit capacity to mal\e tlie instriiiiient, or of undue iiitltieiice, is presented, >)Ut witli the law as established to pn-veiit crimes «)f violence or wrong, against wliicli society iiiu>t have power to jirotect itself. The iiKpilry for you in this case, I repeat, is whether or not at the time the accusi'd cominitte9 (1833) » 10 Ohio St 699. 258 TlIK LEGAL TEST OF INSANITY. Notes. Court laid it Oown tliat tlie test was wliethcr tlie prisoner had snmclcnt reason and capacity to distinj^uisli between riglit and wrong, and to understand the na- ture of tiie act, and his relation to tlie party injured. In Farrar v. State,^ decided by the Supreme Court of Ohio in 1863, it was said: *' Further exception is taken to tlie charge of the court, on the grouiul that it gave too narrow a detinitlon, and establi.slied an imperfect test of insanity. ♦ In- sanity,' said the judge, * exists in so many shapes and forms it is almost impos- sible for science to comprehend it.' ' Insanity, in its general legal sense, is the inability to distinguish between riglit and wrong; and as applied to this case particularly, this is the question for you to settle: * Was Nancy Farrar, "* the time this act was committed, capalile of judging whether this act was riglit or wrong, and did she know at the time that it was an offence against the laws of God and man? » * ♦ * ' she or he who administers poison to kill, and knows at the time that it is wrong to do so, is guilty of murder in the first de- gree.' * * ♦ 'So far as the girl Nancy is concerned, j'ou will carefully examine the testimony touching lier knowledge of right and wrong, and if you find she was able to distinguish between them, then, no matter of liow low an order may be her intellect, or how depraved her character, she is guilty as charg'^d, if you have no reasonable doubt a.* to her commission of the act.' The cases of Com- monwealth V. Rofjim," Clark v. Statc,'^ iState v . iSummons,*tirc referred to as contain- ing the true definition of insanity, and showing the imperfection of that before us. The power of self-control — 'free agency' — is said to lie qijlie as essential to criminal accountability as the power to distinguish between right and wrong, an i I have no doubt tliat every correct definition of insanity, eitlier expressly or iiy necessary construction, must suppose freedom of wlil to avoid a wrong no less than the power lietween the wrong and the rigid, and in this very case I can sec many reasons why it should have been proper to say this much to the jury, in so many or similar words. But no special instruction was asked, so tliat the court did not expressly deny the necessity of such a qualification of its rule. Tlie question here to be considered is, therefore, does the definition of the court shut out the notion that accountability may be destroyed by the absence of what counsel call the power of self-control, or free agency? I think not. The defini- tion given below is such as we frequently flml in the books, and giving it such a construction as it would probably receive from a sensible jury, I think it not so inaccurate as to prejudice the prisoner's rights. True, there arises upon tlio facts in this record a not irrational theory that some strange, irresistible wish to see the effects of poison — to produce vlea>ii — may have had such power over the prisoner, as other insane fancies which so often make a man or woman little nior:. uian a piece of mechanism, — neither more capable of sflf-control nor of asserting the true laws of its being against thv. foreign influence. But the language of the court does not forbid tlie jury to consider such a str.le of fact, if it were proven; and the jury would do so unless prohibited. I should not, after mature reflection, be incliued to distrust the verdict, if the objection here considered stood alone." In Blackburn v. State,^ it was said: "The counsel also object to that part ' 2 Ohio St. 7a « 7 Mete. 500. 3 12 Otiio, i'Ai. * West. Law Journal, 1852. 6 'J3 Ohio SI. U6 (1872). nt reason d the ua- was said : lid that it ity. ' In- st impos- ise, is the d to this Farn.i-, "' was riglil t tlio laws > kill, and ic first de- [ carefully if you find iV an order g'^d, if you ;s of Cum- in QontViin- , before us. essential to wrong, an >1 essly or liy ing no less I can sec ury, in so the court rule. Tlu- court shut ;e of what Thedefini- g it such a ik it not so IS upon till' rresistiblo uch power or wouKiii flf-eontrol , But the lo of fad, should not, ctiou here that part TEST IN PENNSYLVANIA. 25J) Commonwealth v. Furkin. of the court's charge which relates to the defence of insanity, and insist that instead thereof the court sliould have givon certain instructions wliich they asked. We see no substjintial. difference between the instructions asked and :c charge given. The form of question submitted to the jury is substantially llie same as laid down in Clark'' s Cane,^ and seems to us to embody the true rule, viz.: Was the accused a free agent in forming tlie purpose to kill? Was he at the time capable of judging wlietiier that act was right or wrong? And did he know at the time that it was an offence against the laws of God and man? " §21. Pennsylvania. — The right and wrong test has been recognized in many cases in tliis State.' In Commonwealth v. Farkin,"^ tiie prisoner was tried in 1844 in tiie Pliiladelphia court of Oyer and Terminer for tlie nnirder of James Lemon. Tlie defence was insanity. Pauso.ns, J., charged the jury as follows : " There is no doui)t but that James Lemon died from violence inflicted upon his person, and that the prisoner at the bar is the guilty agent who gave the fatal wound. "The defence to the accusation is that the prisoner was insane when he com- mitted the act. And it is likewise contended that even if you sliould believe he had control of his reason, the offence is not murder in the first degree. ••Your flvst inquiry should be, was the prisoner conscious of what he was do- ing, aware of the offence he was connnitting, and its consequences, when he gave the terrible stab which constitutes his crime? If he was not, he cannot be held responsible to the laws of our country. But if he had reason and under- standing, so that he could judge between good and evil, he is as much amenable to the criminal law as any other human being. " In considering this part of the case I shall lay down for your reflection the following rules of law, desiring that you make a judicious application of them to the facts, as you may find them: — " 1 . Every man is presumed to be of sound miiul and understanding, and the law retjuiies that where it •'^^ alleged a prisoner was insane when he committed the offence, it must be clearly proved; and the derangement of mind must by shown to iiave existed at the time the offence was perpetrated. "2. That there is a distinction Ix'tween civil and criminal cases in the applica- tion of tlie rules of law, in relation to insanity. In a civil ca.sc, if a man appears from the evidence to l)e 7ion compos mentis, tlie law avoids liis acts, although it cannot be traced to any cause, and this may lie partial in its influence upon his acts and conduct. But to deliver a man from responsil)ility for crimes, above all for a crime of such great atrocity and wickedness as this, the rule does not apply. To protect a man from criminal responsibility there must be a depriva- tion of memory and understanding, so that he is unable to comprehend the nature of his actions, and discriminate between moral good and evil. " ;>. In order to support the defence of insanity it ought to be proved by the most distinct and unquestional)le evidence, that the prisoner was incapable of judging between right and wrong; and, in fact, It must be proved to the satisfaction of 1 12 Ohio, 494. = Com. r. Winnemorc, 1 Ilrewst. IVWJ (ISf.T) ; <'"m.v. Hart, 2 Brew.st. .5J" (ISfif) ; Com. v. Kaikin, 2 Pars. 43it; 2 Clark. 208 (1844) ; Com. V. Freth, 3 Phila. lai; 5 Clark, 455 (1858); Com. r. .Mosler, 4 Pa. St 2fi4 (184(;). ■* 2 Pars. Sel. Caa. 4;i9; 2 Clark, 2(»8. 260 THE LEGAL TEST v"»F INSANITY. Notes. the jury, and beyond all doubt, that at the time the prisoner committed the atro- cious act with which he is charged, he did not consider that murder was a crime against tlie laws of (jod and nature, and there is no other proof of insanity which will excuse murderer any other crime. "4. The jury must discriminate between anger, rage, malice, love of gain, a heart fatally bent on mischief, and the insanity produced by the visitation of God. If you should believe that any of the former were the motives which in- fluenced the conduct of the prisoner, and prompted the deed, then he is respon- sible, and c ui;ht to be convicted. Nor shoidd Insanity be Inferred simply from the boldueys of the deeil, of the daring manner in which the crime was com- mitted — in open day, and in the presence of witnesses — for a wicked and malevolent lieart may prompt one to connnit the offence under the most suspi- cious appearances of delirium. For it is clear that idle and frantic humors, actions occasionally unaccountable and extraordinary, mere dejection of spirits, or even such insanity as will sustain a commission of lunacy, will not be suffi- cient to exempt a person from punishment wlio has committed a criminal act. Yet it is clear from all the authorities, if there be a total permanent want of reason, or if tliere be a total permanent want of it when the offence was com- mitted, the prisoner is entitled to an acquittal. Still, if there be a partial degree of reason, a co'upetent use of it, sufficient to have restrained those passions which produced the crime; if there be thought and design, a faculty to distin- guish the nature of actions, to discern the difference between moral good and evil; then upon the fact being proved that the prisoner Avas tlie guilty agent (a fact not controverted in this case), the judgment of the law, the verdict of guilty must take place. " Sucli are the principles of law found in our books, both ancient and modem, whatever may have been their application by juries in later times. Still, all judges wiio respect the law, \\U\ pronounce it as it has been settled. "This subject has recently undergone a judicial examination in England before the judges, under peculiar circumstances. The question was agitated in Parlia- ment, whether further legislation was not necessary in relation to the plea of insanity l)eing a defence in criminal cases, and various questionr, were pro- pounded to tlie judges relative to the law in such cases, and their opinion was de- livered l)y Lord Chief Justice Tin'dal on tlie litth of June, 1843. I will call yonr attention to it for the following reasons: First, l)ecause it is entitled to respect, as being the judgment of some of the al)lest judges now living; secondly, in order that we may perceive that tiiere is no cliaiige in the law by recent deci- sions; and lastly, because I say to yon, tliat tliese are the principles of the com- mon law; it is the law in Pennsylvania, and I pronounce it as a rule which ought to govern your deliberations in this case. "The lord chief justice remarked as follows: that it was not necessary on that occasion to enter into the facts of any particular case; it would be wrong to do so, as there was such an endless variety, all and each attended with such im- probable circumstances, that no general rule could be laid down. Every case must be decided by its own particular circumstances. His lordship said, as the subject was about to come under the consideratinn of Parliament, tlie judges had not lost any time in considering the questions submitted to them; and as they were unanimous, witli the exception of Mr. Justice Maule, they did notcon- l TEST IX PENNSYLVANIA, 261 Comiiionweiilth v. Earkin — C'ontimioil. sider it necessar}' to give tlieir op Inions seriatim. Tlie first question propounclod for tlieir consideration was as follows: — '" What is the law respecting alleged crimes committed by persons inflicted with insane delusion in respect of one or more particular subjects or persons ; as for instiincc, when, at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of, witli a view, under tlie influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public beueflt? ' " With respect to this question, the opinion of the jmlges was, that notwith- standing the party committing a wrong act, was laboring under the idea of redressing a supposed grievance or injury, or under the impression of obtaining some public or private beueflt, he was liable to punisli-.iitiit. " Second question, ' What are the proper questions to ))e submitted to the jury, when a person alleged to be inflicted with insane delusion iespecting one or more particular subjects or persons, is charged with the commission of a crime, murder for example, and insanity is set up as a defence? ' The judges in answer to this question, wished him to state that they were of opinion that the jury ought, in all cases, to be told, that every man should be considered of sane mind unless it was clearly proved in evidence to the contrary. That before a plea of insanity should be allowed, undoubted evidence ouglit to be adduced that the accused was of diseased mind, and that at the time he committed the act he was not conscious of riglit or Avroug. This opinion related to every case in which a party was charged with an illegal act, and a plea of insanity was set lip. Every person was supposed to know what the law was, and therefore, nothing could justify a wi'ongact, except it was clearly proved the party did not know right from wrong. If that Avas not satisfactorily proved, the accused was liable to punishment, and it was tlic duty of judges so to tell the jury when summing up the evidence, accompanied by those remarks and observations as tlie nature and peculiarities of each case might suggest and require. "With regard to the third question, viz: ' In what terms ought the question to be left to the jury, as to the prisoner's state of mind at the time when the act was committed? ' — the judges did not give an opinion. " Tlie fourth was — " ' If a person under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused? ' "The answer to this (|iiestioii, that the judges were unanimous in opinion, tliat if the delusion was only partial, tliat the iKirty accused was e(|ually liable with a ])"rson of sound mind. If the accused killed another in self-defence, he would be entitled to an acipiittal, but if committed for any supposed injury he would then be liable to the punisliment awarded by the laws to his crime. " With regard to the last question — " ' Can a medical man, conversant with the disea.se of insanity, wiio never saw the prisoner previously to the trial, but who was present during the whole trial, and the examination of all the witnesses, be asked his opinion as to the .state of the prisoner's mind at the time of the alleged, crime, or his opinion whether the prisoner was conscious at the time of doing the act, that he was acting con- trary to law? or whether he was laboring under any, and what, delusion "at the time? ' 262 THE LEGAL TEST OF INSANITY. Notes. *' The judges were of the opinion that tlie question could not be put to the witness iu tlie precise form stated above, for by doinj^ so tliey would be assum- ing that facts liad been proved. That was a question which ought to go to the jury exclusively. Wlien the facts were approved and admitted, then the (lues- tioii, as one of science, could be generally put to a witness under the circum- stiiuces stated in the interrogatory. " It is for you, gentlemen of the jury, to apply the facts before you to the rules of law we have laid down. It is your province to determine the facts, alone; and in forming just conclusions relative to them, I do not think it would be proiltal)le to examine the various speculations relative to the causes of insanity, as they have been read by counsel in your hearing, and what various writers, while indulging their roving fancy, have considered as evidence of insanity, par- tial derangement, or monomania; but, as I have before remarked, these are not applicable in criminal cases. A more rigid rule applies when one asks a jury to acfjuit upon the ground of mental incaiiacity. To take the reported cases from insane hospitals and mad-houses, or instances of persons conllned or treated for aberration of mind, would be but a poor guide to a jury in deciding whether the prisoner at the bar possessed sulllcient intelligence at the time he committed the ortience to be held criminally responsible to the law of his country. It cannot l)e denied that the opinions of learned nu'dieal writers upon the indications of de- ranged minds are valuable, and entitled to consideration by a jury, when they are satislied that from long experience ami ol)servation the author has had an oi)portunity of forming correct conclusions upon the subject. Among the best and most sfife to be regarded in criminal trials, are found in a treatise of Diseases of the Mind, by the late Benjamin Rush, of this city. A few of his remarks, which are applicable to a case like the present, I shall give you. This writer observes: 'The symptoms of mania, as they appear in the mind, vary with its causes when it is induced by impressions that have been made upon the brain, through the medium of the heart. All the faculties of the mind discover marks of the disease iu all their operations. In its highest grade it produces errone- ous perception. In this state of derangement, the patient mistakes persons and objects around him. This may arise either from a disease in the external senses, in which case it is called morbid sensation, or from a disease in the brain. It is when it arises from the latter cause only, a symptom of the highest grade of in- tellectual derangement. Tersont; under the influence of this r the;/ know not what they do! ^ Clearly the Jews knew well that they were crucifying Jesus, but their darkened minds were unconscious of the great crime they were commitfing." In Commonwealth v. Winnemore,^ the prisoner was tried in 1807 in the court of Oyer and Terminer of Philadelphia, for the murder of Dorcas Magilton. His de- fence was insanity. Bkkwstek, J., in charging the jury laid down the law thus i 1. The burden of proof of insanity rests on the defendant. 2. Proof of antece- dent insanity raises the presumption that the disease continues until reason Is restored. 3. If a man has no capacity to discern good from evil he is not ac- countable. 4. If he is laboring under a delusion which, if real, would excuse his act, he is not responsible 5. Evidence of insanity in prisoner's ancestors is admissible. (J. Epilepsy is to be considered as tending to mental alienation. ' 78 Pa. St. 122. 2 1 Brewst. 366. 264 THE LEGAL TEST OF INSANITY, Notes. Ills charge In full was as follows: ♦' If yon should be satisfied bej'ond all rea- sonable doubt, that the defendant was tiie person who thus assaulted Mrs. Majrilton, then you must consider the second point presented for your deter- mination. *' Upon this branch of the case, it is contended by the defence that even, al- though you should be satisfied beyond all doubt, that the prisoner committed the assault which resulted in the death of Mrs. Magilton, yet he is entitled to an ac- quittal upon the ground of insanity. It is undoubtedly true that no person who is insane at the time of the commission of an offence is amenable to punishment. Our statute defining murder in the first degree, uses the words ' wilful, deliber- ate, and premeditated; ' and it must be clear to the most limited understanding that no insane person is capable of exercising his own will or deliberating and premeditating. "Independently of the words of our statute, it would bn contrary to every im- pulse of true humanity to punish a person who, by the accident of birth, or tin misfortune of disease has been deprived of sense of accountability, or of his self-control. Our Legislature distinctly recognizes this humane principle of the law. The act of March 31, 1800,^ expressly directs that: 'In every case in which it shall be given in evidence, upon the trial of any person charged with any crime or misdemeanor, that such person was insane at the time of the commis- sion of such offence, and ho shall be acquitted, the jury shall be required to find specially whether such person was insane at the time of the commission of such offence, and to declare whether he was acquitted b\ them on the ground of such insanity; and if they shall so find and declare, the court, before whom the trial is had, shall have power to order him to be kept in strict custody, * * * so long as such person shall continue to l)e of unsound mind.' " Admitting, therefore, to its fullest extent, the general principle contended for by the defendant's counsel, let us inquire what that insanity is which excuses its victim from legal accountal)ility. " Before adverting to the principles which should guide us in such an investiga- tion, let me remind you that the law presumes every man to be of sound mind until the contrary appears; that the burden of proving insanity rests upon a de- fendant, and that the point to which inciuiry is always to be directed, is the con- dition of his mind at the time at which the crime was committed. It is not enough, therefore, to shield an accused person from punishment, that he should satisfy a jury that at some period of his life he was insane, if the whole evidence convinces them that at the time the offence Avas committed he was perfectly rational, free from delusion, entirely the master of his own actions, "Proof of insanity, antecedent to the offence, raises the presumption that the disease continues uutil reason is fully restored; but in prosecuting these inves- tigations we are not to look simply at one period of a life, but at all the events of which we have proof, and we should regard each item of evidence as a sepa- rate mirror, throwing its light upon the central point of the case. " Keeping these general rules in view, let us return to our inquiry, ' What is that insanity which excuses from legal accountability? ' " I shall not attempt to cite to you the numerous definitions of insanity with 1 Bright. Dig. 262, sect. 66. TEST IN PENNSYLVANIA. 2»J5 Comniouwealth v. Wiimemore — Contimicd. which our books abound, nor shall I undertake to classify the various diseases which may be included in the general expression, mental derangement. Dr. Ray gives us two general heads, and four sub-heads. Fleming states two different classiflcations, with upwards of thirty subordinates, and authors of eminence differ from those I have named, and from each other la their dissections of this subject. Such abstractions are well suited for those who make the treatment of disease thelf in the buttery, he beiug of the impression that she was a burglar. He was rightfully acciuitted. " HI. If there is no delusion, general or partial, and there is a capacity to dis- tinguish between right anil wrong, the man may still lack, by reason of the ope- ration of some painful disease, tlie power of self-control. This is wliat is called l)y Cliief .Justice (iinsox,^ a moral or homicidal insanity, consisting of an irresistible inclination to kill, or to commit some other particu- lar offence. lie says: 'There may be an unseen ligament pressing on the mind, drawing it to conse(|uences which it sees but cannot avoid, and i)lacing it under a coercion which, while Its results are clearly perceived, is incapsible of resistance.' He adds: 'The doctrine whicli acknowledges this mania is dan- gerous in its relations, and can be recognized only in the clciirest cases. It ought to be shown to have been habitual, or at least to have evinced itself in more than a single instance. * * * To establish It as a justitlcation in any particular case, it is necessary to show by clear proofs its contemporaneous ex- 1 Hale, 42. > Com. V. Mo8ler,4 Pa. St. 264 (1346). 2()() THE LEGAL TEST OF INSANITY. Notes. istence, evinced by present circumstances or the existence of a habitual tendency developed in previous cases, becouiin;; in itself a second nature.' " If you And that the defendant killed the deceased, you may be assisted in arriving at a conclusion as to his accountability by asking yourselves whether you Hud from the evidence the following facts: — " 1st. Did the defendant know who it was that he was attacking — that she was a human being — and that his acts would result in her death? " 2d. Did he at the time know that his act was forbidden by God and man? " 15(1 . Did he know and believe that she was not attacking, harming, or endanger- ing him? "4th. Was he entirely the master of his own actions, uninfluenced and uncon- trolled by any disease or delusion, general or partial, which he could not by the exercise of his own will overcome? " In Frcth's C remember their testimony, and I will not, unless desired to do so, pause to read my notes of their evidence. His diary is also rell' .1 upon by the Commonwealth as establishing a full possession by the defendant of his faculties. " We have been requested by the prisoner's counsel to charge you on the fol- lowing points : — " Ist. If the jury believe, from the evidence in the case, that the prisoner com- mitted the act of killing, but at the time of doing so he was under the inttuencu of a diseased mind, and was really unconscious that he was committing a crime, he is not guilty In law, and should not be convicted of any crime. We answer this in the afllrmative. " 2d. If the jury believe that, from any predisposing cause, the prisoner's mind was impaired, and that he was mentally incapable of controlling or governing his acts at the time the homicide took place, they must acquit him. We attirm this point. "3d. If the jury believe from the evidence that the accused, at the time this act was committed, was capalile of controlling his acts, l)ut from disease of tlie mind was incapable of judging of the nature of the act, with reference to the crime of murder, they must acquit him. We allirm tliis point. "4th. The questions of fact implied in eacli of the foregoing points, like all others in the cause, are open questions for tlie jury, to be decided by them beyond all reasonable doubt, against the supposition that the prisoner's mind was in any manner impaired by disease so .is to render him unconscious of his acts, iucapaljle of controlling tlK;m, or of properly judging tlieir nature with reference to the crime of murder, before they can convict the prisoner of the crime wherewitli he is charged. We allirm this point. "5th. The law does not require that insanity sliall be shown to exist for any definite period, but only that the accused was suffering from a paroxysm of mental disease, whether short or long, at the time the act took place which he is accused of coiniiiittiiig. We allirm this jioint. " 6th. The motivelessness of the act itself is a proper consideration for '.Le jury in weighing the eiidences of insanity. We aftirm tills point. "7tii. Every reasonable doubt in regard to the existence of every fact neces- sary to constitute the guilt of the prisoner must be removed from tiie minds of the jury, by satisfactory proof or evidiMice produced in this cause, before they can convict tlie prisoner. We allirm Miis point. " Wc believe tliat we have answered every point presented by the learned counsel for defendant, or suggested to us by iirolonged reflection upon this case. If, in your deliberations, any oilier matters should present themselves, you will, of course, give tlieiii their proper weight, and discard nothing simply because I have omitted to notice it. "Upon the whole case, then, the first question is, Did the defendant kill Mrs. Magilton? Consider, upon this point, all the evidence bearing upon it, and if you have a reasonable doubt, give the defendant the benefit of the character he i TEST IN TENNESSEE ANU TEXAS. 269 Clurk V. State; Williams v. Statu. monwealth ii'f Lumoti, versed with llcer Juinu.s 1 doubtless use to read monwealth on the fol- soncrcom- e influence ig a crime, iVe answer ler's mind governing We atlirm me this act ise of tlie ice to the s, like all I by them er's nund ous of his ture witli aer of the it for any axysin of hich he is an for '.l.c ct ncces- he minds ie, before d counsel e. If, in 1 will, of )ecause I kill Mrs. it, and if racter he has proved, and acquit him. If you have no reasonable doubt upon this first question of the case, you are then to consider the second inquiry: Was the defendant insane at the time he committed the offence? A doubt here, again. Is the property of the defendant. If you acquit him, you arc required to And specially whether he was insane at the time of the offence, and to declare whether he is acquitted on the ground of such insaidty." § 22. Tennessee — Texas. — And the right and wrong test is followed in Tennessee ' and Texas.* In Clark v. State,^ the Court of Appeals of Texas said: "A question is raised as to the sufHciency of the charge of the court on an issue of insanity, set up for the defendant on the trial. The charge of the court was excepted to, and special charges were asked which the court declined to give, on the ground that the law was properly given in the general charge. The following is found in the general charge of the court: 'Among other defences made in this case, is insanity created by jealousy and other conditions of the mind growing out of the Inlldelity, or suspected infidelity, as the case may be, of the wife. In tliis connection you arc charged that only a person with a sound memory and discretion can be held pun- ishable for a homicide, and that no act done in a state of insanity can be punished as an offence. Every man is presumed to be sane until the contrary appears to the satisfaction of the jury trying him. He is presumed to entertain, until this appears, a sufticient degree of reason to be responsible for his acts; and to es- tablish a defence on the ground of insanity, it must be clearly proved that at the time of committing the act the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature or quality of the act he was doing, or, if he did know that, lie did not know he was doing wrong, — that is, that he did not know the difference between the right and wrong as to the particular act charged against him. The insanity must have existed at the very commission of the offence, and the mind must liave been so dethroned of rea- son as to deprive the person accused of a knowledge of the right and wrong as to the particular act done. You are to determine from the evidence in tills case the matter of insanity, It being a question of fact, controlled, so far as the law is concerned, by the instructions herein given you.' On a comparison of this cliarge, with standard elementary writers on the subject of insanity as a defence for crime, and with adjudications of the courts of this State, we are of opinion ihat the charge, with reference to insanity generally, as well as the particular insanity or emotional derangement of the mind set up in the case was a sub- stantially correct enunciation of tlie law of the case, and as favorable for the defendant as the testimony warranted." ♦ In the opinion of Clakk, J., in the case of Williams v. State,^ there is this paragraph; "Appellant was convicted of the murder of one Frank Strickland, and his punishment assessed at death. On the trial of tlie cause, there was evi- dence tending to show a disordered state of the mind on his part before the kill- 1 DoTe V. State, 3 Heisk. :!48 (1872) ; Stuart r. State, 1 Baxt. 180 (1873); Thomas V. State, 40 Tex. m (1874). - Erwin v. State, 10 Tex. (App.) 700 (1881) ; tte post, p. 875. 3 STi'X. (App.) 350. < Whart. Cr. Law, sects. 15-24; 1 Archb. Cr. Pr. ft PI. 4-4,4-6, and note 1; Carter r. State, 12 Tex. 500; Penal Code, arts. 39, 40; Webb t'. State, 5 Tex. (App.) 596, and au- thorities there cited; Williams v. State, 7 Tex. (App.) 163. '- 7 Tex. (App.) 163 (1879). 270 THE LROAL TEST OF INSANITY. Not'js. ing, niid the issue of his sanity lit tiic tiiiicof tlio liomicidu was sulimittcd to tlio jury ill tlu! cliiirge of tlio court. Tliu (•li:ir;j;o ujiou this point was substaatialiy to tlio effect that uii net otherwise criuiinal, doiio and performed in a state of in- sanity, is not punishable; litit tlie true inquiry should he whotlier or not tlie accused was capable of having, and did have a criiuinal intent. If ho had such intent ho was punishable, otherwise not, tlie true tost beiiif? the capacity to dis- tinfiuish between rijjht and wron^ as to the partieurir act witli which ho is charged. We decin tlio instruction in substantial accord witli establishes! jire- cedents both in our own and other States. Webb v. State^^ and autliorlti'.s there cited." § 2". United States Courts.— In the Federal courts the right and wrong test is recojjnlzeil.' §24. Moral Insanity — Irresistible Impulse. — Tlie courts of a few States liavc not been content witli the " rij^ht and wrong test," but have Imported into the law a rule of irresponsibility where, though the person knew his act to l)e wrong, he was driven to it by an irresistible impulse. This is known as " moral," as distinguished from " mental " insanity, and lias become in some sections of the country a favorite defence to crime, where ail other defences are wanting- This dangerous doctrine takes its firmest hold in Kentucky,' and has been favor- ably regarded in at least one case in Iowa,* and one in Connecticut.* There are also decisions in Ohio and Minnesota recognizing it,« though, as we have seen, in both these States the right and wrong test prevails. Two nwi/jn'Hs cases In New York, Co/«'s and Macfarlandi's Cases, are to the same effect, and in several trials of the same kind in Pennsylvania, hints of a similar doctrine are to be found. In CoWn Cuie,'' tried in the AHiany (N. Y.) Court of Oyer and Terminer, in November, 18(18, tlie prisoner was indicted for the wilful murder of L. Harris Iliscock, on .Tune, 4, 18C7, and pleaded not guilty. Hogebuom, J., charged tlie jury as follows : — " This protracted trial is about to 1)0 closed and to be submitted to you for final decision. You are prepared for it by faitliful attention to tlie testimony and the arguments of counsel. This att'U^ion is called for by the magnitude and impor- tance of the case. The positioi: ot ilie jury is a solemn and responsible one. The life and liberty of a felio\\ -citi^ien is in your hands, and is not to be dis- posed of without the most anxl.tu:. and serious consideration of all the circum- stances and griive reflection upon tlie weighty results that hang upon your ' 5 Tex. (App.) 607. = r. .S. t'. Uohnes, 1 Cliff. 08 (1858) ; U. S. V. MctJlue, 1 Curt. 1 (I&51). » Smith f. Com., 1 Duv. 224 (1864) ; Kriel v. Com., 5 Bush. 362 (1869); Scott v. Com., 4 Met. (Ky.) 227 (1862). < State V. Felter, 25 Iowa, 67 (1868). But seeFouts r. State, 4 O. Greene, 500 (18.54), where it is said: " From the authorities we conduile that insanity cannot be set up as a defence to an indictment, unless it ap- pears that the defendant's mind ut the lime of committing the offence, was so deranged that he did not know tlie nature of the of - cnce, or that lie was so really deluded that lie did not know lie was doing wrong." State v. Sticklcy, 41 la. 232 (KO). f- Anderson v. State, 43 Conn. 514 (1876). But see State v. Johnson, 40 Conn. 130 (1873) ; State v. Richards, 39 Conn. 591 (1873). Blackburn v. State, 23 Ohio St. 146; State r. (.Jut, 13 Minn. Ml. ' 7 Abb.Pr. (V. s.) 321 (1868). MOKAI. INHANITY. 271 Colu's Cast'. Ittcd to tho ubstiiiitlally Htate of iii- or not the le luul sucli city to (lis- k'liifli ho is lisJiorl pre- rltli.s there and wronc few Stfttes )ortud into J act to be i "moral," sections of wanting, een favor- There art' have seen, are to the hints of a ■miner, in L, Harris ., charged n for final ly and the d impor- sible one. be dis- 3 circnni- pon your 1 deranged of tl.o of led that lie " State t). S14 (1876). 3onn. 130 591 (187:!). St. 140; decision. Nevctrthc^lcss it isadiity wliicliyoiicannot dt'clhif, wlil(;li the law Iiiih Im- posed upon yon, wlilrli you liavo taken an o.itli to dl.scliar;!(! wltii consclentlousnf.ss and tldt'lity, and wliicli must bo discharged with alisolute fearii'ssness and ini- partiailty, wliatover may lie tlie consetpiences, and upon wliomsover they may fail. " George W. Coio stands indicted for tlie murder of L, Harris Iliscocli, on June 4, 1807, at Stanwl.v Hall, in tlie city of Albany. Under tills indietiiieiit, lie may, if tlie evidence justilles it, be convicted of elllier of the two degrees of murder, or of the four degrees of manslaughter, or acfiuitted upon (he ground of justill- ablo or e.\cusablo homicide, or of an a!)solnlc or temporary deprivation of reason, tho result of settled insanity, or of a momentary, but ungovernable frenzy induced by the circumstances of the p.irticular occasion. " It may be desirable to inform you, particularly, of tlie ingredients wliich goto make up the crimes of murderand manslaughter in their various degrees. Mur- der, in the first degree, so far as it can iiavo application to this particular case, is the killing of a human being, when not justiliable or excusable, nor coming under tlie head of manslaughter, and jieriietrated with a iin-meditated design to effect death. Tlie premeditated design must bo completely formed before the act of killing, and must precede the act, but no particular space of time i.s neces- sary to intervene between the complete conception of Its design and its execu- tion. If a perfected design precedes the act, it is murder. Tills is murder in the first degree, and its punishment is death. l^Iurder, in the second degree, embraces all the cases of murder which are not included in the dellnitiou of murder in tho first degree. It is not well defined in the law, but may safely, I think, be held to Include cases of unjustiHai)le, and unlawful, and inexcusable killing, characterized by a preraeiiitateci design, ( r by no premeditation beyond an intention to produce death; but not by that degree of enormity, wilfulness, and premeditation which mark the commission of murder in tlie first degree. Tlie line of distinction between murder in the first degree and in the second de- gree, is not very clearly defined in the statute; and sometldng is left to the sound and intelligent judgment of the jury in fixing the degree of the crime. The punishment of murder in the second degree, if I liave read tlie statute aright, is imprisonment in the State prison not less than ten years. " Mansiaugliter in the first degree is not applicable to the facts of tills case. Perhaps, not manslaughter in tho second degree, though one division of it, the killing of a liuman being without a design to effect death, in the lieat of passion, but In a cruel and unusual manner, might possibly be contended to embrace it ; but as manslaughter in the third degree is tlie same offence, except that it is killing accomplished by a dangerous weapon, instead of a cruel and unusual maniu'r, I present that aspect of the offence to you as better adapted to the facts of this case than manslaughter in the second degree, and also as being milder In its penalty and, therefore, more favorable to the prisoner. The punishment of manslaughter in the third degree, is, I believe, as modified by the statute of 18" with any view to make them evidence for such a purpose. Tlicir objc't Av. lustrate the premeditated design on liis part. Being perfectly legitiiJuit' -1 , a purpose, and offered with that view, and direct evidence of adultery aaving been excluded by the court, they are not competent testimony to prove the adultery be.ause they are not offered and received with that view, and because t!\ur'> ' • no p ",e that the defendant had personal knowledge on this subject which aouUI .mi' Its bun to give primary or admissible evidence with reference to it. There might l)e a state of facts, — for example, if a husband should rush from his own bed-room, with a knife or dagger in his hand, red and dripping with blood, where his statement that he had just slain the adulterer in the very perpetration of a domestic wrong, contemporaneous with the act, and consistent with, and explanatory of, the surrounding circumstances, miglit l)e so interwoven and blended with tiie transaction as to allow it to be received, in connection with other evidence, as original or primary proof of the facts them- selves. But here the declarations of tlie prisoner do not cover sucli a case, — are not intended to be applicable to such a transaction, and are shown by other proof in the case to refer to occasions considerably removed in point of time from that Avhich is tlie subject of your present consideration. The confessions, or alleged confessions, of the wife do not prove it. They were not admitted for such a purpose, and are not to have tliat effect. Their introduction was per- mitted, not as furnishing evidence of the facts themselves, but as communica- tions made to the husband, and which were calculated more or less to operate upon his mind, and influence his conduct, and to enable you in the light of sub- sequent events to judge how far tliey did so operate, and to determine to what extent the knowledge or information of these facts was calculated to explain an I to mitigate, or to justify tlie homicide sul)sequently committed. As interpreting the prisoner's subsequent conduct, as throwing liglit upon the state of his mind, they are admissible and proper to be considered. As furnishing evidence to you in this case of the commission of adultery, tliey were not allowed to be intro- duced, and are not proper to lie considered. ** Hence, if you ac(]uit the defendant upon that ground, you acquit upon a ground not established by the evidence. * " It may be that the deceased was not guilty of this offence. He has not had any opportunity to try tlu.L question, and his lips are now scaled in death. We arel poll cvel .IS ;ii:c| inal (leij waj MORAL INSANITY. 279 Cole's Case — Contiuued. are not, therefore, in .a condition to say on wliicli side upon a fair trial, tlje pre- |)()nderauce of the evidence would be. " It is susyested that no case has ever occurred in which this evidence lias (vor been ignored by a jury. That is not the (juestion. It is not necessary for lis to iiKiuirc whether former juries have or have not violated their oaths by accepting as evidence facts which have not been proved. It is a dangerous and inadmissible proceeding in a court of justice. We stand upon the recorded evi- dence, and no other. Whatever may be our suspicions, we have no right to give way to them, unless they are supported by the evidence in the case. "Whatever I may suspect, or you may c(»njecture, outside of the range of the proved or admitted facts, we cannot justify ourselves to our (iod and our country otherwise than by rendering a verdict according to the evidence, ^'either the presence of sympathy, nor the alleged hardship of the case, nor the sophistry of counsel should allow us to take any other course. " But it is said that the prisoner was informed of facts tending to fix upon the deceased this invasion of his marital rights; and that, oppressed by the crush- ing weight of such a disclosure, he rushed to the vindication of his marriage bed, under a transport of passion which any honorable heart will justify, — which the law will excuse if it does not applaud, and which jurors who appre- ciate the importance of maintaining the purity of the marriage relation cannot fail to recognize and sustain. " But neither is this the just nor the legal view of the case. It is only in the heat of passion, in the uncontrollable resentment occasioned bv the discovery of his domestic dishonor, or by surprising the parties in the actual comnussion of the adulterous intercourse, or under intluence of a state of circumstances almost o(luivalent to personal observation of such a transaction, that the husband is ptrnutted to be the summary avenger of his domestic wrongs. He is not at liberty, after his passions have had time to cool, and the tempest of excited feel- hig to subside, to stalk abroad, seek out the unconscious and unprepared victim of his resentment, and without tlie intervention of the forms of law, or the judgment of his peers, become the self-appointed avenger of his own wrongs, or vindicator of the violated majesty of the law. The law must be left to main- tain its own dignity and to enforce its own decrees through the constituted tri- bunals of its own creation, and has not in any just or legal sense commissioned the defendant to the discharge of this high office. " In this case the adulterer, if adulterer he was, was not detected by the husband in the actual connnission of his crime, nor under circumstances from which its then very recent perpetration, so far as the evidence discloses, could have been fairly inferred. The period of adultery, If adultery there was, was long since passed. The knowledge or information of its commission had been communi- cated to the prisoner several days, at least two or three days before, and a suffi- cient time, in the judgment of tlie law, had elapsed for the passions to cool, and for reason so far to regain her undisputed or real sway as to forbid individual vengeance, and to prououucc the act of premeditated killing, if such it was, the crime of murder. "True it is, as I have already informed you, if, notwithstanding this lapse of time, the crushing weight of this domestic tragedy had driven the prisoner's mind to absolute distraction, and detliroued the reason of the husband, he is per- NoU's. mltfc'd to lliul iiniiiuiiityfri)iii imnislniu'iil in tlic iiu-iilal aliiMialloii witli wliich he was tliws ovcrwiii'liiu'd; but if lio liad llio |)()ssi'.ssi(>u of iiis si-iiscs, tin; oxitcIm' of liis reason, aiul was in t* sitnation to appreciate tlie (piality of his acts, lie stands responsil)le l)efore Jiie law for liavini^ nnlawfully talssil)li! view by wliich tlio offonco can be demonstrated nianslan^jliter, and that the prisoner declines to acce|)t the offiT of that sympathy tliat wonld indnce a verdict for tliat offence, and wonld rather die than i)e sent to State prison." Tlic jnry retired, and snbsc(piently came Into court, whon the foreman stated tliiy had not a'^reed npon u verdict, lloiiKnooM, J. — "I have a note from yon In which you request to have further information with reference to that portion of the charge which relates to Insane impulse and unt^overnable frenzy ami the rules of law soveriiin5» the same. I (lesiLjned to express niyself wit sudlcient fuliness, and witli all tlie clearness and perspicuity with which I was able to do upon those subjects. I will restate, or fiirtlier comment on these points, that tlie foundation of all responsibility for crime is sanity, or soundness of mind, that Is a sane mind in the sense in which I explained it to you in the original charge — the possession of reason, ability to (iiscriminate between right and wrong in regard to the particular transadion, a degree of consciousness and Intelligence that enables a party to appreciate the i|uality and nature of the act in which he is engaged; to be aware that it was wrong; if it was wrong, i crime; that he was connnitting an offence against the laws of his country. If his nnnd was in such u sittuitlon, he was, in my opiiuon, and as defined in the cases to which I have referred, sul)ject to those laws, re- sponsible for their violation, and to be punished if he did violate them. That is sui)stantially the test in regard to both those species of offenc»'s to which your attention has been called. An insane impulse, leaving the mind incapable of exertion, holding the individual incapable of exercising his mind, so far as I have dellned it to you, exempts him from responsibility, and if under the influence of siicli a want of mind, the prisoner commits the act, whether you call it an insane impulse or anything else, it exempts him from responsibility. Mere impulse, whetlier you call it irresponsible impulse or not, does not excuse, if it be the impulse of excited passion, arising from revenge, from resentment, from in- tention to do an act which is wrong or a crime, and the prisoner is aware of it, whether he is impelled to it by peculiarities of temi)erament, by a nervous disposition, by excited feeling, or anything of tliat sort, will not excuse him from responsibility. " If there is the consciousness that he is committing a crime against the laws of his country, there is, in my opinion, no impulse that can excuse !um from re- sponsibility. But if this impulse arises from a defect of reason s > Uiat it can- not control the exercise of his mental powers, if he is bereft of that power in the sense which I have alluded to, and this crime is committed in such a condi- tion and without the ability to control himself from such a cause, he is in such u condition as excuses him from responsibility. "The question, after all, is whether he has his mental powers and the ability to exercise tliem to such a degree as makes him conscious, at the time, of the nature of the act in which he was engaged. He must not give way to unholy passions, to excited feelings, to a disposition for revenge or resentment, because it is just these feelings that the law punishes and makes him responsible for them. Men must curb and restrain their passions. But if he is bereft of the mental power to reason upon the subject anil understand the nature of the act in 2»4 TIIK LKdAL TEST OF INSANITY. Noti's. which he !>< onsiiiatod, then tlu' liiw rollovos him from responsibility. If he iict-i frmii iiiiiiovcnial)!!! fn-iizy, it must Ix- the fri'iizy of madiu'ss or mi'iital iilU'iisitioii, and not of oxdtod and Inflamctl passions. If a man has NUtllck-nt conHclousncss of tlic nature of the act in wliich lie is enijaiied to Ivnow tliat he Is dolnjj wronu, and violating; tlu; laws of his country, and yet {jives way to the feeling ' -esent- ment or revenue, and {iratilles It at the expense of his consciousness e i> connnittin<; a crime, wliether tliat frenzy Is of tlie hijiliest and almost urespon- siblo dejiree or not, he must be held responsil)le. Hut if tliis Is tiio frenzy of mental alienation, so tliat he cannot control the posvers of his ndml, and Is in- capable of ai)preciatinn the (luallty of his act, or to unilerstand that he Is vlolat- ini; the laws of his country In doing a thing that Is morally wrung, then he l> exempt from responsibility. " It Is very dilllenlt to define these matters with absolute precision. I em only refer yon to the general rule laid down In tlie ca. ■ k i laid l)efore you in my charge to you, and I nwd from them Inlentionidly for the express purpose of defining the rules by wliich you arc to be guided, and to explain the circum- stances which exempt a person charged with crime from the responsibility of that crime. " I do not know that I can do anything which will inform you In any greater degree of wlial constitutes that degree of Insanity or ineiital alienation wliieli excuses a person from criminal responsibility. Tlie party is never res sUtW for defect of reason; it is a providential ilispensatlon wliich relieves voin the imputation of crime, because it Is not the act of a free, intelligent, ou- sclous mind. I tliink tliat every one Is bound to control his passions and feel- ings. If he has the power of thouglit ami ability to reason, he must l)e helil responsible to the laws of his country, and not give way to unholy passions, or excited feelings, or wicked resentments, or revenge. Ou these questions you must be satislied." Mr. Brady. — " If there bo any doubt, the benefit of It goes to the prisoner." IIocKHooM, J. — "That doubt goes to the benefit of the prisoner, if it be that kind of rational doubt, upon tlie evidence, or doubt which commends itself to tlie rational mind, applying itself to tlie facts of the case. It is not the men possibility of innocence that should justify you in finding a verdict of acquittal. The question is whether on your considering the case as rational men, you be- lieve beyond a rational doubt, a fair reasonable doubt, commending itself to your understanding, that the party Is guilty and criminally responsible under the rules I have laid down, you must find him guilty. If you do not thus believe, if you have a rational doubt upon this subject, as thus understood and interpreted, you are to give the prisoner tlie beueflt of that doubt, and render a verdict of ac- quittal." "The jury again retired. Subsequently they came into court, and the fore- man stated they found the prisoner to have been sane at the moment before and the moment after the killing; but they were in doubt as to his sauity ou the In- stant of the homicide. "The judge charged the jury that they must give the prisoner the benefit of the doubt, If they had such rational doubt founded upon the evidence, and could believe such doubt to be well founded upon such a condition of the case as was presented by this statement of the jury." The jury returned n verdict nf not guilty. ('0| 1). Ne| MOrtAL INSANITY. 285 Miicfarluiurs Ciihc. If lio (lets I iiliciiiitioii, nsclousiicss )iiiS wroiii,', j; f -t'Sfiit- t irri'sj)oii- frenzy of luiil Is iii- !(.' is violat- tlion he i> ion. I can you hi my |)iiri)ose of le circuin- iisibility of my greater tion wliicli 'es sil)!!' 1 vom ;, oii- aiul feel- st be lu'ld issions, or ttious yo'i )risoner." , if it be mis itself the men acquittal. , you be- If to your the rules ire, if you eted, you of ac- ;he foro- ;fore and 1 tlie in- enefit of 1(1 could e as was In ^iicfiirlawVii C'lsf,,^ the prisoner, nuniel Maofarland, was trliil before Re- corder llACKKir, of New Yorli, for inunl(;r lu the first degree In sliootlni; AlluTf I). Richardson on November 25, 18(!!t, in the odlce of the New York Tribune, in New York City, Tlie judge charged llie jury as ftdlows: — " Wldl(! some of you, perhaps most of you, sat in court as individuals, and not yet jurors, Daniel Maefarland was arraigned at tlds l)ar. Tlio Indict luent, stripped of its technical veri)lage, charged tliat he killed Albert I). Klciiardson, intending to kill 1dm. Included in tlie direct eliargt; wasan implied one that be- loiiu's to ail cases of crime, tliat the iitenlion was of a man in a state of saidty. I >liall for l)revity, use the phra.sc si.ito of sanity,' or * state of insanity ' con- tinuously througli this cliarire. 1 do so iieeause it Is tlie statutory phrase — 'no act iloiie by a person In a state of insanity can Ix! punished as an offence.' " The statute did not, and no arl)itrary statute could, give a definition of In- ■^unity, which should Include all cases. Hence, It is left to be IntiTpretcd by the courts. In using tiie plirase ' state of sanity,' I am to l)e understood, tliroughoiit as meaning tlierel)y this, the .state in which a man knows the act lie is (!oinmlt- thig to l)e unlawful and morally wrong, and has reason sulllcient to apply such knowledge and to t)e controlled by it. " In using the plirase, 'state of insanity,' I am to be understood throughout as meaning thereby the state under whicli a man is not aceoniital)le for an al- leired criminal act, because he does not know the act he is committing to be un- lawful and morally wrong, and has not reason sulllcient to apply such knowledge and to be controlled by it. "The accused simply pleaded not guilty to the charge. That general denial (as subsequent testimony has sliown you) was really a particular denial — a 8 Abb. Pr. (N. 8.) 57 (lS70h 286 THE LEGAL TEST OF INSANITY. Notes. " The theory upon which the defence seeks acquittal is, substantially, that domestic troubles produced in the accused a state of insanity towards Mr. Rich- ardson. The theory upon which the prosecution seeks conviction is, that thti domestic troubles originated and fostered such a spirit in the accused towards Mr. Richardson as the law calls and rebukes as malice. Reviewing the evidenci- upon the subject of the state of insanity offered by the defence, I can see that nearly all of it would have been admissible had it been offered by the prosecu- tion to prove malice. The defence justify the accused in domestically acting as he did toward his wife and friends. " The prosecution takes some issue on that justification. The defence claim that a conspiracy to disturb the domestic relations of the accused, existed on the part of some of the wife's friends. " But, gentlemen, retain constantly in your minds that the actual state of these domestic relations, or the blame or praise appertaining to them, or the fact, or color of fact or the falsity, of any such conspiracy, are not at all material for you to deflnitelj' adjudicate. "The question for your consideration (whether you estimate insanity or malice) is, how did the prisoner believe about those domestic relations or a conspiracy, as a belief to impress his mind sanely or insanely? " The law books are full of cases of sane men who have kil! id from a malice engend'^red by utterly false conceptions of occurrences or individuals. Medical records, and law books contain many instances of insane men killing under an insanity which was the result of the most delusive or unsubstantial or irrational conception of human conduct or material events, as well as of men killing from insanity occasioned by the operation of actual facts. The theory of the defence as to the operation of tlie domestic troubles upon the mind of the accused, was undoubtedly fully presented by the long question put by the counsel for the dt- fence to Drs. Vance and Hammond, and which you can doubtless substantially recall. The *'>eory of the prosecution mainly as to the malice and partially as to the sanity, was substantially presented by the compact question put to the same witness on tlie cross-examination, and whicJi you may recall. " 1 do not intend to comment upon tiie evidence. I do not think I ought to. In tlie first place, it has been summed up in parts by tlie speeches on either sidi' during evidence, and as a wiiole in the closing arguments. In the next place, it is impossible for me to take up the ?vidciice, without possibly impressing upon you by my arrangeinoiit of it, or emohasis in repeating it, the very decided con- viction upon the merits of this prosecution, which I have formed. I shall simply group it as appertainhig to the question of malice or insanity, or to the otlur legal questions, and leave the details to your memory. The legal necessity for a manslayer to have been in a state of sanity when he slew, before he can be held accountable to human law, is deeply rooted in jurisprudence. •'.\s far back as the civiliansj the maxim was ^ furiosus, furioso, solum puniter^ — a mad man's madness is his only punishment. In the early history of the com- mon law, one of the essentials to the defiu'tion of murder (a definition which is its universal test in jurisprudence), was 'sound memory and discretion.' ' Murder is where a person of sound memory and discretion unlawfully kills any reasonable creature, being in the peac ; of the king, with malice prepense or aforethought, either express or Implied.' The converse phrase of our statute MORAL INSANITY. 287 Macfarland's Case — Continued. itially, that s Mr. Ricli- is, that thf led towards he evidence an see that le prosecu- y acticg as 'ence claim sted on the ite of these he fact, or laterial for nsanity or itions or a m a malice . Medical ', under an ' irrational lling from le defence used, was ar the (h- •stantially illy as to the same >ught to. ther side place, it ng upon ded con- 11 simply he other ity for ;i be held tniter'— le com- kvhich is retion.' lly kilU icnse or statute 'state of insanity' is convertible with that other phrase, 'sound mcmorj- and iliscretion' in the conmon law. As early as 18IG, in this court,' it was said: • An insane person is considered in law incapable of committing a crime ; but it Is not every degree of insanity which abridges the responsibility attached to the commission of crime. In that species of insanity where the prisoner has lucid intervals; if, during those Intervals, and when capable of distinguishing good from evil, he perpetrates an offence, he is responsible; and the principle subject of inquiry is whether the prisoner at the time he committed the offence had suf- ficient capacity to discern good from evil; and should the jury believe he had such capacity, it will be their duty to find him guilty.' The utter responsibility to human law of the mad man (or the jnan who lacks a sound memory or discre- tion, and) who takes human life has never been doubted. The difllculty has been to decide upon the degree of the madness, or the quality of the insanity which shall claim irresponsibility. It may be interesting to the legal student to follow the discussions of legal tribunals upon this subject and, indeed, to mark their -■ i,.;uations of doctrine. But the law regulating to-day the uujuiry of a jury upon ihe subject is not complex. If you will keep in mind what I have held to bo the meaning of the phrases, ' state of sanity ' or ' insanity ' in the statute, I will now refer to the propositions of the counsel for the defence on that subject. " I substantially charge every proposition of the counsel for the defence upon the subject of sanity. There is possibly no difference of legal opinion between tlu counsel for the defence and the district attorney regarding the law constituting state of sanity or insanity. The difference between them is one of applicability of the legal rule to the particular circumstances of the case. Those differences have been reasoned out or commented upon in the summing-up, l)ut it is due to the counsel for the defence that I should re-read them, with my comments: — " • Even if the evidence as to the insanity of the defendant should leave it in doubt as to whether lie was insane at the time of tlie counnlssion of tlie alleged act, if it also leaves in doubt his sanity at that time he is entitled to an acquittal.' " Which I charge. " 'Though the evidence may leave the defence of insanity in doubt, if upon the whole evidence in the case, the jury entertain a reasonable doubt as to the perfect sanity of the defendant at the time of the commission of the alleged act, they are bound to acquit him.' "Which I charge. " 'If the jury cannot say beyond a doubt that the defendant was sane at the time of the comniissinn of the alleged act, or cannot say whether at that time he was saue or Insane, they are bound to ac({uit him.' " Which I charge. " ' If the jury entertain a reasonable doubt upon all the evidence in the case, as to the guilt or innocence of the defendant of the crime alleged against him, he is entitled to un acquittal.' "Which I charge. " ' If at the time the prisoner committed the act charged upon him (if he did commit it) , the deceased suddenly presented himself to him, without any anticipation or expectation on his part that he would then and there see the deceased, and the prisoner was, from an association of the deceased with his real or fancied domestic troubles, thrown into a state of mind in which he was deprived of his memory and understanding so as to be unaware of 1 Clark's Case, 1 City Hall Reo. 176. 288 THE LEGAL TEST OF INSANITY. Notes. the naturp, character and consequences of the act he committed, or to be unable to discrim- iiiatu between right ami wrong in reference to that particular act, at the very time of its commission, he is entitled to an acquittal.' " Denied, for the re.tson thnt there is no evidence upon the subject of sudden or expected presentation to justify the liypothesis. " ' If, at the time the prisoner committed the act charged upon him (if he did commit it), the deceased suddenly presented himself to him, without any antic'"ation or expecta- tion on his iiart, that he would then and there see the deceased, and the prisoner was, from an association of the deceased with his real or fancied domestic troubles tlirown Into a stall! of excitement in which he was divested of his reason and judgment, and was deprived of his mental power to an extent placing him beyond the range of self-control in reference to the particular act charged against him, so that he could not possibly restiain himself from the commission of the act alleged against him, at the very time of its commission, he is entitled to an aciiuittal.' " Denied for lil\e reason. " 'Although .sanity is assumed to be the normal state of the human mind, when insanity is once proved to exist, it is presumed to exist until the presumption is overcome by contrary or repelling evidence.' " Refused, for tlie reason that the insanity for your inquiry relates exclusively to the time of the act. " 'If partial insanity, simply, is shown, as the human mind is not the subject of inspection or examination, and as the range or extent of the disease can only be a matter of seientillc conjecture or judgment, the jury have ariglit to say whetlier the particular act charged upon the defendant was or was not an amplification, or extension, or another phase of the diseas'j, even though the testimony may not go that length.' «' Refused. " ' The jury have the right from their own knowledge of human nature, and the tendencies of the human mind in additi»n to, and in conllrmation of, the evidence of experts, to say how far the causes relied upon to establish irresponsibility on the part of the defendant at the time of the commission of his act, were adequate or sufficient to produce insanity, and liid cause that result.' " Whlcli I charge you. " ' Where the cause of insanity is alleged to be an interference with a man's marital rela- tions, or his paternal rights in taking away his wife or child, the jury have the right to judge of tlic probability of tliu existence of such an affection from their own and the known feel- ings of others, as husbands and as fathers.' "Refused. " ' If the jury believe that, at the very time of the commission of the act alleged against him, from causes operatinj; for a considerable length of time beforehand, or recently or suddenly occurring, the defendant was mentally unconscious of the nature of the act in which he was engagetl, he was and is legally irresponsible for it.' "Which I charge. " • If the defendant was deprived of his reason at the time the act alleged against him was committed, resulting either from a settled and well-established mental alienation, or from the pressure and overpowering weight of the circumstances occurring at the time, he is legally irresponsible for what he did.' " Which I charge. " ' It the jury believe that when the deceased entered the Tribune office he did not expect to see the defendant, nor the defendant him, and that after he entered, the defendant was moved to the commission of the act alleged against him by the sudden access and irresisti- ble pressure of excited and overwhelming passion, roused by the sudden and unexpected Bight of the destroyer of his domestic peace, or him he supposed to be such, dethroning bis 3IORAL INSANITY. 289 Macfarliiml's Case — Continued. against sntly or act in Mm was 3r from le, lie is ■ expect Int was reeisti- Ipected ling bis reason and pressing him on to tlie commission of tliis act under tlie influence of an ungov- ernable frenzy, unsettling for the time his faculties and enthroning insanity in their place, he is not responsible for the act.' " Refused, because not wholly justifled by evidence. " • If from the whole evidence the jury believe that the defendant committed the act, bnt ntthe time of the doing so was under the intlucnce of a diseased mind, and was reully un- cunsoioua that he was committing a crime, he is not in law guilty of murder.' 'Which I charge. " ' If the jury believe that from any predisposing cause the defendant's mind was impaired and at tlic time of killing deceased, h^ became or was mentally incapable of governing tiimself in reference to deceased, and at the time of his committing said act was, by reason (if such cause, unconsc'ous that he was committing a crime as to the deceased, he is not guilty of any offence whatever.' "Which I charge. " ' If some controlling disease was in truth the acting power within him (the prisoner), which ho could not resist, or if he had not a sulUcient use of his reason to control his pas- bions which prompted the act complained of, he is not responsible.* "Which I charge. " 'And it must be born in mind, that the moral as well as the intellectual fiiculties, maybe so disordered by disease, as to deprive the iniiid of its controlling and directing power.' "Which I charge. " ' In order, then, to constitute a crime, a man must have memory and intelligence to know that the act he is about to commit is wrong; to remember and understand that if he coni- niits the act he will be subject to punishment; and reason and will to enable him to coin- piiro and choose between the supposed advantage or gratillcfition to be obtained by the criminal act, and the immunity from punishment which ho will secure by abstaining from it. If, on the other hand, he have not intelligence and capacity enough to have a criminal intent and purpose, and if his moral or intellectual i>owers are so deficient that he has not sullicicnt will, conscience, or controlling mental power, or if, tlirougli tlie overwhelming violence of mental disease, his intellectual power is for the time obliterated, he is not u lusponsiblo moral agent, and is not imnishable for criminal acts.' "Which I charge. '• 'If the jury believe from the evidence, that previous, up to, and at the time of the lidiuicido in question, the prisoner thought or believed that his wife and the deceased or ciilior of them, wore or was watching liiin with a view to ascertaining how he provided for liis oldest son I'crcy, intending to take legal proceedings to deprive him of that son the first opportunity that offered, and that he considered his poverty would render him almost liclplcss against such proceedings, and so he would lose that son; that this was nn un- warranted and unsound delusion on the part of the prisoner; that thereafter, and in con- su>iuunce thereof, his mini, became and continued diseased ; that sucli delusion and disease increased in intensity I'.iiCil the prisoner became, was and remained subject to great cause- less and violviii, frenzies and paroxysms of rage, in which his power of distinguishing wliolhcrhe vas committing a crime or not, was for the time destroyed or superseded, and that the act '■/harged upon him, was committed while in such a paroxysm, and while such power of distinguishing was destroyed or superseded, he is not responsible legally for that act." " Refused, because, although good iu part, it is uot, iu ray opiuion, correct as an entire proposition. " ' If the jury believe from the evidence, that while the prisoner was in such a paroxysm as is described in the last proposition, he committed the act charged upon him, at the time thereof, being entirely divested of all mental control over his actions, and without will or consoiencc, or the capacity to exercise will or conscience in reference to his conduct, so far as the deceased was concerned, and as against the deceased, be is uot responsible legally I 'J 21>0 THE LEGAL TEST OF INSANITY . Notes. for the act, even though he was at the time, capable of distinguishing between right and wrong in reference to his act.' "Which I charge. " ' If the jury believe from the evidence, that, previous, up to and at the time of the homicide in question, the prisoner thought or believed that his wife actually loved him and would not have left him but for the persuasion of the deceased and females acting in his interest, ami that she was willing to return and would have returned to him but for this cause, that this was an unwarranted and unsound delusion on the part of the prisoner, that thereafter, and in conse(iuence thereof, his mind became diseased and continued diseased, that sucli delusion and disease increased in intensity until the |>risoncr became, was, and remained subject to great, causeless and violent frenzies and paroxysms of rage, in which his power of distinguishing whether he was committing a crime or not, was for the time destroyed or supcrseded, and that the act charged upon liim was committed by him while in such a paroxysm, and while such power of distinguishing was destroyed, or superseded, he is not responsible legally for that act.' " Refused, because, although good iu part, it is not, in my opinion, correct as an entire proposition. " ' If the jury believe from the evidence, that while the prisoner was in such a paroxysm as is described in the last proposition ho committed the act charged u|)on him, at the tiniu thereof being divested of all mental control over his actions, and without will or conscience, or the capacity to exercise will or conscience in reference to his conduct, so far as the deceased was concerned and as against the deceased, he is responsible legally for the act. even though he was at the time, capable of distinguishing between right and wrong in reference to his act." «' Wliich I decline to cliarge in the terms proposed. " 'That to make the prisoner responsible for the act charged upon him, the jury must not only be satisfied that he was aware of what he did at the time of doing it, but that he was not morally insane in reference to the deceased, or the act which he is charged with perpe- trating upon the deceased.' "Which I cliarge. •' ' That to make the prisoner responsible for the act charged upon him he must have been intellectually and morally sane in reference to that act, and the deceased at the time of iu commission.' "Wliich I charge. " 'That the law holds no one responsible for his act, when his mind was so diseased at the time of the act, as to be without reason, conscience and will, and where from such cnu>os the party accused was an involuntary instrument of such a disease, and incapable of refrain- ing from the commission of the act.' "Which I charge. *' 'The accused must have sufficient mental capacity to distinguish between right and wrong, as applied to the act he is about to commit, and be conscious that the act is wrong, before he can be convicted of a crime.' "Which I charge. " 'To coustitute a crime, the accused must be acted upon by motives, and be governed by will.' "Which I charge. " ' To convict a person of crime ho must have memory and intelligence to know that the act be is about to commit is wrong, to remember and understand that if he commits the act, he will be subject to punishment, and reason and will to enable him to compare and choose between the supposed advantage or gratiftcatlun to be obtained by the criminal act, and the immunity from punishment which be will secure by abstaining from it.' "Which I charge. MORAL INSANITY. 291 Mucfarland's Case — Continued. right and e homicide would not terest, and e, that this eafter, and that such ij remained 1 his power estroyed or a in such a id, he is not correct as a paroxysm , at the time conscience, o far as the r tor the act. id wrong in jury must that he wa-. with perpe ; have been > time of it* diseased at sucli causes e of refrain- n right and ,ct is wrong, yroverned by ow that tlie bommits the Imipare ami Irimlual act, " 'To convict a person of crime he must have sulliciont memory, intelligence, reason and will to enable him to distinguish between right and wrong in regard to the particular act to bo done, to know and understand that it will be wrong, and that he will deserve punish- ment by committing.' " Which I charge. " 'If the proof shows that the mind of the accused was in a diseased, and unsound state, the question will be whether the disease existed to so high a degree, that for the time bein^ it overwhelmed the reason, conscience and judgment; and whether the prisoner, in com- mitting the homicide acted from an irresistible and uncontrollable impulse ; if so then the act was not the act of a voluntary agent, but the involuntary act of the body, without the concurrence of a mind directing it.' "Which I cliarge. " But in regard to all the matters embraced in the foregoing propositions to c'' rge, it is proper to add, tluit they are really rhetorical amplifications more or less (according to different pluises of theory or evidence), of the rule of law whicli I have laid down for interpreting the phrases of tlie statute ' state of sanity,' or ' insanity.' •'This case differs somewhat from all those cited in one respect. Here the accused had grown familiar with the wrongs that he alleges to have been done to his marital relation by the deceased. Years progress from his first alleged discovery of the alleged wrongs. The defence claim that this very lapse of time engendered morbid fancies, and was lil^ely to grow into settled insanity, or to beget a state of mind easily influenced to frenzy. The prosecution claims that this familiarity with alleged wrongs, and, indeed, acquiescence in them, and to some extent trafficking upon tliem, begot only the malice of the law of murder, and utterly destroys the idea of insanity. I tliink all the cases cited are of nisi prius acquittals, under circumstances of frenzy induced flagrante delicto, or by recent communication of dishonor or of sudden wrongs calculated to dethrone reason. The only case of conviction in the courts of this State under analogous circumstances which has reached very authoritative discussion, as I have been able to find, is the Sanchez Case. The Court of Appeals in the case of Sanchez,' tliussays: 'Assuming the theory of the defence to have been, as the prisoner's counsel alleges, that the homicide was committed by the prisoner in an insane frenzy, superinduced by jealousy awakened in his mind in relation to his wife's conjugal infidelity — whicli would reduce the offence from murder to man- slaughter — and that such theory was a sound one, tiie Inquiry should Iiave been confined to the time and occasion of the lionilcide, or within a period so shortly before, that the court could see tliat the passions had not, or might not have had, thnc to subside. The questions to each of tliese witnesses related to an indel'- nite period of time between tlie prisoner's marriage and the homicide, and then; • fore, if for no other reason, were clearly inadmissible.' "Whicli leads me to say that (as was in tlie minds of the jury in the Cole Ca.sr', according to their verdict), the state of insanity and the act of commis- sion must concur in direct point of time. This is the converse of the well settled rule in cases of sane persons committing murder that the design to kill may be conceived on the instant of killing. In Cole\t Case the jury saifl : ' We find the prisoner to have been sane at the moment before and the moment after I 2-2 N. Y. U7. 292 THE LEGAL TEST OF INSANITY Notes. the killing, but are in doubt as to his sanity at the instant of the homicide.' The doubt was given to the i)iisoner, because on that instant hinged the issue. •' Yon might conversely arrive at the conclusion that the deceased may have l)eeu in a state of insanity at periods i)nor to the moment of killing, or was in a state of insanity shortly afterward, and you might lind him in a state of sanity at tlie moment of the shot — exercising perception to recognize the decea.sed, exercising memory in recalling wrongs, exercising will in aiming the pistol, and exercising judgment in going away — all of which are , 186t), if that act (the shooting on that day), was perpetrated by the defendant, while in a state of insanity, it would still exempt him from legal responsibility.' " Which I cliar{?c. " Tnder any circumstances the Jury must find that the threats and act in question were the result of a sound mind.' "Which I charge. " ' Upon the point of the seriousness of the threats, the jury arc to consider the fact that those to whom they were made, neither notified the deceased of them, nor took any steps to have the defendant arrested for them, in pursuance of law.' "Which I decline to charge. " 'If the jury believe that the threats v,-ere unmeaning, and were uttered in a state of excitement or anger, without any intention of executing them, and wholly as the result of passion, they are not to be regarded in determining the character of the homicide in ques- tion.' " This would only modify their weight in evidence, but would not exclude them from tlie jury. "Experts have been called in this case. They are to bo considered rather as mirrors with which merely to reflect upon you tlioir opinions. But you remain the sole judges whether those reflections are accurate. Sometimes tlie expert is an enthusiast; sometimes he is a clover charlatan. In the one case even his iTood judgment may bo warped; in tlie other his want of judgment may be speciously hidden. Hence, the usefulness of the jury as umpire. " Tlie exact line between sanity and insanity in medical philosophy or medical jurisprudence is as intangible and as dilllcult to precisely measure as a meridian line in geography. But law and science in each instance do the best they can to iirbitrarily tlx them for safety. Experts in mental or moral philosophy or geog- rupiiy can only describe and illustrate. You become the judges. Test for your- selves from this evidence the phases and conditions of sanity or insanity, or the line between aversion, anger, rage, hatred, wrath, vengeance on one side, und the dethronement of reason upon the other. "We have all probably seen manifestations of the emotions and passions just named. A groat piiilosopher has said, ' no man is sane.' ' That in every organ- ization there is more or less of a deviation from the normal condition of the mind as the Deity would have It.' Anger itself is a short-lived madness; wrath is longer-lived; vengeance is still longer-lived; but neither anger nor wrath nor vengeance, unless produciug a state of insanity, wholly excuse crime. Hence, as 294 THE LEGAL TEST OF INSANITY. Notes. philosopliers, experts, jurors, judges, counsel, and laymen might speculate •\vlkllj' uiul blindly regarding the measure of the insanity that will excuse an otherwise criminal act, the law has come to deflne it as well as it can, and leave the application in particular cases to the sworn judgment of jurors — the real ex- perts — and upon all the testimony. "I will here read from Wharton & StlUe's Medical Jurisprudence:' ' Briand says, that from the height of passion to madness is but one step, but it is precisely this step which hnpressos upon the act committed a distinct char- acter. It is Important to know exactly the precise characteristics of the passions and of Insanity. But here science fails, for It must be adihitted that we are unable to point out the place where passion ends or madness commences. M. Orflla draws the following distinction between a man acting under the impulse of the passions and one urged on by insanity: 'The mind is always greatly troubled where it Is agitated by anger, tormented by an unfortunate love, be- wildered by jealousy, overcome by despair, humbled by terror, or corrupted by an unconquerable desire for vengeance, etc. Then, as is commonly said, a man is no longer master of himself, his reason is affected, his ideas are in disorder; he is like a mad man. But in all these cases a man does not lose his knowledge of the real relation of things; he may exaggerate his misfortunes, but this mis- fortune is real, and if it carries him to commit a criminal act this act is perfectly well motived. Insanity is more or less independent of the cause that pro- duced it; it exists of itself; the passions cease with their cause, jealousy dis- appears with the object that provoked it, anger lasts but a few moments, in the absence of the one, who by a grievous injury, gave it birth, etc. Violent passions cloud the judgment, but they do not produce those illusions which are observable in insanity." ' " The counsel for the defence has stated in your hearing that several times in kindred cases he has been called upon to vindicate the sanctity of the marriage tie, or uphold and defend the marriage relation. I cliarge you, gentlemen, that no such ideas should enter into the jury-box. You are not to uphold nor to prostrate the marriage relation by your verdict. Fourierism, free love, or sentimentalism on the one hand, and moral reflections upon the conduct of the deceased man or living woman upon the other hand, are not legitimately to affect j'our verdict. Some of you might arrive at the conclusion upon some of the extraneous matters that have been foisted into this case that Richardson was the demon whom counsel for the defence described him to have been, and others of you might arrive at a conclusion that the fact of Richardson and Mrs. Macfarland, both desiring a divorce and a marriage, was proof that no criminality existed between them down to the time of the homicide. Yet, either conclusion would be foreign to your duty — your sworn and solemn duty — your duty to the public and respect for due course of law and order as well as your duty to the accused. Unsworn men not clothed with the solemnity of jurors' oaths, and interpreting a worldly code, may say that he who seduces the wife c." another ought to be killed, or that he who does so upholds the marriage relation. But judges and jurors must interpret the strict legal code — a code that to swerve even a hair's breadth from is often as fatal to human society as the slightest variation of the ' Sect. 115. MORAL INSANITY. 295 Macfarlancl's Case — Continued. mariner's compass is sometimes fatal to the ship and her passensxers, whose safety depends on the nnswerving integrity of the maj^netic needle. And In '"i- terpretlng that code the Inflexible rule of jurors should be that the a;;;xrieved husband, or father or relative, who takes the correction of wronj^s Into his own hands, with pistol or knife, and is not In a state of Insanity when he did the cor- rection, Is not to be acquitted because It Is the duty of any man to uphold the sanctity of the marriage tie, unassisted by lei^al procedure. "When the prisoner broujiht suit against llichardson he was within law. When he became executioner he took the law Into his own hands. If he took this law Into his own hands in a state of sanity and with malice, however much sentiment for the living prisoner may applaud the act, he is guilty of felonious killing. If in a state of insanity, liowever much sentiment In favor of the dead might reprehend the act, or however much all persons might reprehend the wrong done the State by killing its citizen In an unauthorized mode, the accused is not guilty. "The Idea of strictly maintaining the law. Is that jurors shall not speculate upon provocation. Wrongs occasioned by a swindler, by a betrayal of political friendship or by the numerous variety of social Insults, could be just as logically estimated outside of law by jurors, In other cases, as the wrongs occasioned by a seducer. All wrongs may extenuate liomiclde from the degree of nuirder to one of mimslaughtor, when the violent vindicator of them Is in a state of sanity, but under a passion wliieli does not permit a design to take life. Laws against homicide are enacted and enforced because society is full of wrongs and tempta- tions therel)y to commit violence at the Instigations of malice or passions. Un- der any wrongs, the same person whom they may have Impressed is not at liberty after his passions have had time to cool, and after the tempest of excited feeling have subsided, to stalk abroad, seek out the unconscious and unprepared victim of his resentment, and without the intervention of forms of law, or the judgment of his peers, become the self-appointed avenger of his own wrongs, or vindica- tor of the violated majesty of the law. <' The law must be left to maintain Its own dignity, and to enforce its own decrees through the constituted tribunals of Its own creation, and it lias not, in any just or legal sense, commissioned the accused to the discharge of the higli office of the law. We must carry Into effect the law of the land; we must en- force its solemn mandates, and not nullify nor relax its positive commands by misplaced sympathy or morbid clemency. If our duty is clear, we forswear our- selves if we do not perform it. This duty we must discharge at whatever haz- ard, whether painful or disagreeable. Neither manhood nor honor, the restraints of conscience, nor tlie solemn mandates of the law, allow us to decline Its per- formance, or to hesitate at its execution. Let us content ourselves with admin- istering the law as we find it, in our own appointed sphere of duty. Then we shall have consciences void of offence toward all men, and the happy conscious- ness, that In the spirit of our oaths, and In conformity with the obligations which rest upon us, we have as faithful and law-abiding citizens executed the laws of the land." Mr. Graham. — " I want your honor to charge this sentence of Recorder Hoff- man's charge In the Wagner^s Case " : — " ' I have been requested,' says Recorder Hoffman, « to charge you, that if 296 THE LKtJAL TKST OI' INSANITY. Notes. the prisoner committed tlie act in a moment of frenzy, lie cannot be convicted of murder in tiie first (leyree; I not only cimruc tliat proposition, but if his mind was in tiiat condition he cannot he convicted of any offence.' " The Coi'iiT. " I so charge." "Tlie jury retired, and in an hour and forty-eiglit minutes returned, and ren- dered a verdict of ' not guilty,' and the prisoner was discharged." In Commomoealth v. Hosier,'* tried in 184(J, in the Philadelphia court of Oyer and Terminer, before Ginsox, C. J., Coim.tkk, and Bkll, JJ., the different kinds of insanity were passed on by the cidef justice in his charge to the jury, and it was held: (1) that insanity to be a defence to a crime must bo siiown to exist to such an extent as to blind its subject to the consequences of iiis acts and deprive him of all freedom of agency; (2) that want of motive, or (3) the nature of the act itself is no evidence of insanity. The prisoner Avas indicted for the murder of Eve Mosler, his wife. It appeared that the parties had been married about eleven years, and that there was a great disparity of age between them, the prisoner being nearly twenty years the younger of the two. On the day of the homicide the prisoner came into the house about one o'clock, and shortly afterwards commenced taunting one Boyer, a son of the de- ceased by a former liusband, and at the same time threatening to cut tlie throat of her granddaughter. At about six o'clock the prisoner and deceased were left alone in the house, having previously had a slight quarrel, and about twenty minutes past six o'clock the deceased was found lying In the house with licr tliroat cut. No question was made on the trial as to tlie fact of the prisoner being the guilty agent. Ilis shirt was torn, there were several bruises on tlie person of the deceased, and her left eye was black as from a blow. He was arrested wliile changing his shirt, in the room where the act was done. He im- mediately said that he " did it," and said tliat he " had done it with her own sou's razor; " that he "was ready to go anywhere; " "he had tried to do it before," "iiad done it this time right." The defence was insanity, and in support of it evidence was offered to sliow that a year or more before he had attempted to flre his wife's house; that some time previous he liad started to Pittsburg, but soon returned, saying that every night tlie deceased and her granddaughter stood at the foot of his bed; and that when arrested, his appearance and con- duct, according to the impression of one witness, were those of a crazy man. GiBSOx, C. J., in cliarging the jury, said: "Tlie fact of killing is not denied. Two points of defence liavc been set up: The flrst, that of insanity, implying an entire depriv..ul jn on the part of the prisoner of tiie power of self-control, and constituting a complete defence to the charge. The second, that of tempo- rary fury induced by aderpiate provocation, reducing the offence to manslaugliter. Tlie flrst, if sustained, will acquit him altogether; the second, while acquitting him of murder, will leave hira guilty of manslaughter. " Insanity is mental or moral, the latter being sometimes called homicidal mania, and properly so. It is my purpose to deliver to you the law on this ground of defence, and not to press upon your consideration, at least to an un- usual degree, the circumstances of the present case on which the law acts. "A man may be mad on all subjects; and then, though he may have glimmer- > 4 Pa. St. 264. MORAL INSANITY. 21)7 Commomvcaltli v. Moslcr. ii:;r.s of reason, ho Is not a responsible agent. This is general insanity; hnt If H be not so great in its extent or tlegreo as to blind him to the natnre and con- sequences of his moral duty, It Is no defence to an accusation of crime. It must be so great as entirely to destroy his perception of right and wrong; and it is not until that perception is tlius destroyed, that ho ceases to be responsil)Ie. It must amount to delusion or hallucination, controlling his will, and making the commission of the act. In his apprehension, a duty of overruling necessity. The most apt Illustration of the latter Is the perverted sense of religious obligation which has caused men sometimes to sacrlllco their wives and children. " Partial Insanity is confined to a particular subject, the man being sane on every other. In that species of madness, it Is plain that ho is a responsible agent. If ho were not Instigated by his madness to perpetrate the act. Ho con- tinues to be a legitimate subject of punishment, although he may have been laboring under an obliquity of vision. A man whose mind squints, unless im- pelled to crime by this very mental obliquity, is as much amenable to punish- ment as one whose eye squints. On this point there has been a mistake, as melancholy as it is popular. It has been announced by learned doctors that If a man has the least taint of Insanity entering into his mental structure. It dis- charges him of all responsibility to the laws. To this monstrous error may be traced both the fecundity in homicides, which has dishonored this country, and the Immunity that has attended them. The law Is, that whether the insanity be general or pavtlal, the degree of it must bo so great as to have controlled the will of Its subject, and to have taken from him the freedom of moral action. " But there Is a moral or homicidal Insanity, consisting of an Irresistible Incli- nation to kill, or to commit some other particular offence. There may be an unseen ligament pressing on the mind, drawing it to consequences which it sees but cannot avoid, and placing It under a coercion which, while Its results are dearly perceived, Is incapable of resistance. The doctrine which acknowledges this mania Is dangerous In Its relations, and can be I'ocognized only In the clearest cases. It ought to be shown to have been habitual, or, at least, to have evinced itself In more than a single instance. It Is seldom directed against a particular individual. But that it maybe so, Is proved by the case of the young woman who was deluded by an IrreslstUile Impulse to destroy her child, though aware of the heinous nature of the act. The frequency of this constitutional malady is fortunately small, and It is better to confine It within the strictest limits. If juries were to allow It as a general motive, operating in cases of this character, its recognition would destroy social order as well as personal safety. To estab- lish it as a justification in any particular case. It is necessary either to show, by clear proofs. Its contemporaneous existence evinced by present circumstances, or the existence of habitual tendency developed la previous cases, becoming in itself a second nature. Now, what Is the ovideuco of mental insanity In this particular case? " 1. The prisoner's counsel rely on his behavior, appearance, and exclamations at the time of tlie act or Immediately after It. According to one witness, his conduct was that of a reckless determination, evincing un unsound mind. *I ilo it,' he repeated three times. It Is said, like a raving maniac. But you must recollect that, to commit murder, a man must be wound up to a high pitch of excitement. None but a butcher by trade could go about it with circumspection 298 THE LKOAL TEST OF INSANITY. Notes. and coolness. The emotion sliown by the prisoner wns not extrftordJniiry. TIi' seemed to know the conseiinenees of Ills act — wiis nnder ti di-luslon — and was self-possessed enough to llnd a reason for the uct, that reason being her alleged iii-treatment. " 2. It is urged that the want of motive is evidence of Insanity. If a motive were to bo necessarily proved by the Connuomvealth, it is sliown in this case by the prisoner's own declaration; l)Ut a motive need not always bo shown, — it may be secret; and to hold everyone mad whose act cannot lie accounted for on the ordinary principles of cause and effect, \#ould give a general license. Tin; law itself Implies malice, where the homicide is accompanied with suiii circum- stances as are the ordinary symptoms of a wicked, depraved, and mallgiiaiit spirit, — a heart regardless of social duty, and delil)erately bent upon miscliuf. " ;{. But it is said that tiiere is intrinsic evidence of insanity from tlie nature of the act. To the eye of reason, every murderer may seem a madman; but in the eye of the law he is Still responsible. "4. His trip to Pittsburg and voyage to Germany, it is contended, have not been accounted for, except that he expected to get property in the latter, but did not ; and tliere Is an e(|ual obscurity al)out the motive of his se'tting lire t(j ills wife's property, — her barn, I think it was; but these things do not show an insanity connected with his crime. "The only circumstance which seems to point to a foregone conclusion, is the repeated visions he had after he started for I'ittsburg of liis wife and lier graiul- daugliter, wliose throat he also attempted to cut, standing at the foot of his bed. This foreboding may tend to show a morbidness of mind in reference to tills particular subject; but it is for you to say, — keeping in mind the fact that, to constitute a sufllcient defence on this ground, there must be an entire destruc- tion of freedom of the will, l)lin(liiig the prisoner to the nature and consequence of his moral duty, — whether tiiese circumstances raise a reasonable doubt of the prisoner's responsibility. "To reduce the offence of manslaughter, it is necessary that a quarrel should liave taken place, and blows have been interchanged between parties in some measure, upon equal terms of strength and condition for fighting; and this, without regard to the question who struck first. Yet tliis must be taken with some grains of allowance. If a man should kill a woman or a child for a sligiit blow, the provocation would be no justification; and I very much qne-fjon whether any blow inflicted by a wife on a husband would bring tli< killiii_ her below murder. Under this view of the law, I have nlway di ted Sled- man's Case, in which, for a woman's blow on the face with ; to a soldier in return for words of gross provocation, he j. the pommel of his sword on her breast, and then ran after i in the back, and the crime was held to be only manslaughter.' is cruel or unmanly, the provocation will not excuse it; and the same law exists where there was a previous quarrel, and the killing was on the old grudge. "You will determine whether there was provocation in this case sufficient to lower the offence, on this view of the law, to manslaughter. The behavior of the deceased immediately preceding the struggle was peaceable and soothing. ,iatten, given ,ier a blow witl. iiid stM' hedher \Vh( ■ a blow Reg. V. Stedman, Fast. 292; 1 Hale, 4.57; 1 Hawk., cb. 31, sect. 34. MORAL INSANITY. SJtf) CoinmoiiwcaUh v. Frcth. You will recollect tlmt, nccordlnfj to the evidence, she put off pettlnsj a warrant from tluie to thnc, in hopes liis conduct wf)uld cluiufie. Ills behavior, on tlic other liand, was (luarrelsonie to every one present. Ills shirt, which appeared iifterwards to have been torn, shows a seuflle, 1)Ut no more; and If done by her, it was more prol)ably in resisting than attacklnir. You will keep in mind the disparity of aiie and strenijth, and the fact that all the bruises were received on ill ri)art, and ri'celved In self-protection. " If the evidence on these points fail the prisoner, the conclusion of his pullt will be inevitable, and It will bo your duty to draw It, however unpleasant it iiiiiy be. You are bound by the trennndous sanction of an oath to do your duty iiy liim; and you are bound by the same sanction to do your duty i)y the Coni- inouwealtli; and to you the case of the one and the other Is connnltted." The jui'ii rrtnvncd n verdict 10 CI. & F. 210. « 2 Pars. Sel. Cas. 431. » 4 Pa. St. 264. MORAL INSANITY. 301 Coinmonwcalth v. Froth — Continued. refer to that delusion by reason of whicli the prisoner commits the act under a lixed bona fide, belief (whieli is a delusion) that certain faets existed which were wholly imaginary, but which, if true, Avould have been a good defence. "The judges of England, in their answer to the fourth question propounded to them by the House of Lords, say: ' Supposing that one labors under a partial delusion, and is not in other respects insane,' we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. Tor example: if, under the influence of delusion, he supposes a man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character aud fortune, and he killed liim in revenge, he would he liable to pun- ishment. "But, gentlemen, if this spirit of delusion existed, the act chaiged against the prisoner must be the direct resuiD of this delusion, and the delusion must have been directly connected with the act, driving him to its connnission, and must have been such a delusion which, if it had been a reality instead of an imagina- tion, would have justified him in taking life. Besides the kinds of insanity to which I have referred, aud which, strictly speaking, effect the mind oidy, we have moral or homicidal insanity which seems to be an irresistible inclination to kill or to commit some particular offence. AVe are obliged by the force of authority to say to you that there is such a disease known to the law as homicidal in- sanity. What it is, or in what it consists, no lawyer or judge has ever jet been able to explain with precision. Physicians, especially those having charge of the insane, gradually, it would seem, come to the conclusion that all wicked men are mad, and many of the judges have so far fallen into the same error as to render it possible for any man to escape the penalty which the law affixes to crime. "We do intend to be understood as expressing the opinion that, in some in- stances, human beings arc not alliicted with a homicidal mania, but we do intend to say that a defence consisting exclusively of this species of Insanity has fre- quently been made the means by which a notorious offender has escaped punish- iiK lit. What, then, is that form of disease, denominated liomicidal mania, which will excuse one for having committed a murder? "Cliii'f Justice Gins(»x calls it ' that unseen ligament pressing on the mind a.d driving it to consequences which it sees but cannot avoid, and placing it under a coercion which, while its results are clearly perceived, is incapable of resistance ' — ' an irresistible inclination to kill.' " If by moral insanity it is to be understood only a disordered or perverted state of the affections or moral powers of the mind, it cannot be too soon dis- carded as affording any shield for ])unishmeiit for crime; if it can be truly said that one who indulges in violent emotions, such as remorse, auger, shame, grief, ami the like, is aillicted with homicidal insanity, it will be difllcult, yes, impos- sible to say when sanity ends and insanity begins, for, by way of illustration, the man who is lashed into fury by a fit of anger is in one sense, insane. As a areneral rule, it will be found that instances are rare of cases of liomicidal in- sanity occurring wherein the mania is not of a general nature, and results in a desire to kill any and every iierson who may chance to fall Avithin the range of tile maniac's malevolence, as it is general, so also is it based upon Imaginary 302 THE LEGAL TEST OF INSANITY. Notes. and not real wrongs; if It is directed against a particular person (as is some- times the case), then also the cause of the act will generally be imaginary. When, therefore, the jury find from the evidence that the act has been the result not of an imaginary, but a real wrong, they will take care to examine with great caution into tiio circumstances of the case, so that with the real wrong, they may not also discover revenge, anger, and kindred emotions of the mind to be the real motive which has occasioned the homicidal act. " Ortlla has said, ' that the mind is always greatly troubled when it is agitated by anger, tormented by an unfortunate love, bewildered by jealousy, overcome by despair, haunted by terror, or corrupted by an unconquerable desire for ven- geance. Then, as is commonly said, a man is no longer master of himself, his reason is affected, hi.s ideas are in disorder, he is like a madman. But in all these cases a man does not lose his knowledge of the real relation of things. He may exaggerate his misfortune, but this misfortune is real, and if it carry him to commit a criminal act, this act is perfectly well motived.' " The man who has a clear conception of the various rchitions of life, and the real relations of things, is not often afflicted with insanity of any descrip- tion. He may become angry, and, in a fit of temper, kill his enemy, or even his friend, but this is not, and I hope never will be, called, in courts of justice, in- sanity. Again, one who is really driven on l)y an uucontrollal)]e impulse to the commission of a crime, will be able to show its ' contemporaneous existenei' evinced by present circumstances, or the existence of an habitual tendency de- veloped in particular cases, and becoming in itself a second nature.' And ought further to show that the mania ' was habitual, or that it had evinced itself iu more than one instance.' "Chief Justice Lkwis has said, that moral insanity 'bears a striking resem- blance to vice; ' and further: ' It oug'it never to l)e admitted as a defence until it is shown that these propensities exist in such violence as to suljjugate the in- tellect, control the will, and render it inipossil)le for the party to do otherwise than yield.' And again : * This state of mind is not to be presumed without evi- dence, nor does it it usually occur without some premonitory symptoms iudicJit- ing its approach.' " Gentlemen of the jury, we say to you as the result of our reflections on thin branch of the subject, tliat if the prisoner was actuated by an irresistible incli- nation to kill, and was utterly unable to. control his will or subjugate his intel- lect, and was not actuated by anger, jealousy, revenge, and kindred evil passions, he is entitled to an acquittal, provided the jury believe that the state of niiiiii now referred to has been proven to have existed without doubt, and to their satisfaction." The judge then reviewed at length the evidence, and called the attention of the jury to the Act of Assembly regulating the degrees of nuirder, and also to that act Avhich requires a jury when the defence is insanity, to say so if they so believe, and also to find if the prisoner is acquitted on that ground. And after calling upon the jury in the most so!:'mu manner to discharge their whole duty, he committed the prisoner to their charge, saying: " If the prisoner, l)y reason of mental intlrmity, is not a responsible being, acquit him; but if you believe him to be guilty, in that event consign him to that doom which is the direct result of his owu act." 5 MORAL INSANITY, 303 Commonwealth v. Mooro. In Commonwealth v, Moo7'e,^ tried in the Court of Oyer and Terminer of Cambria County, Pen isylvania, in 1804, the prisoner was indicted for tlie murder of Jordan Marbourg, and Insanity was set up as a defence. TAvr.f)!!, P. J., charged the jury as follows: " Was the prisoner at the time of the homi- cide a responsible agent; or, in other words, was he insane?. Tiie just prin- ciple upon whic' .1 is defence rests, Is, that one wliose perception of right is perverted or d'^*i •■oyed by mental malady, is not responsil)le for his actions any more tlian an - ant. The law imputes to them no guilt whatever; and when such a state of mind at the time of tlie commission of an act souglit to l)e pun- ished as a crime is shown to have existed, it is the duty of the jury to find the defendant not guilty. And, by a recent statute of this Commonwealth, — the act of iUst Marcli, 1800, known as the * Revised Penal Code,' it is enacted that ' in every case in wliich it shall he given in evidence upon the trial of any person charged with any crime or misdemeanor that such person was insane at the time of tlie conunission of such offence, and shall be acquitted, tlie jury shall be re- quired to find specially Avhether such person was insane at the time of tlie com- mission of such offence, and to declare whether he was acquitted by them on tlie ground of such insanity.' This, as it is indicated in the statute, so that he shall be treated and provided for as his unlia,jpy situation and the safety of tli commun- ity in which it is thus ascertained to be unsafe to let him go at large, may w- (luire; and such, should tlie defence set up in this case prevail, will be your duty. "Tlic law, gentlemen, which must govern your inquiries, and to which you must apply, and by which you must judge of and pass upon tlie facts relied upon to establish the defence of insanity, as declared by all the judges in Engiaiul in McXaghten^s Case, and by the English courts ever since, and by almost every American court, including the Supreme Court of the State of Penii»ylvania, antl by the most able and eminent judges, ainoit'i them Chief Justice Shaw, of Massachusetts, and the late distinguished Chief Justice Gibson, of Pennsylvania, and in the words in which we have felt it to be our duty lieretofore to state it to a jury in a capital case, is this: " ' Everyman Is presumed to > > sane, and to possess a sufficient degree of rea- son to be responsible for liis crimes, until the contrary be proved to the satis- faction of the jury; and to establish a defence on tlie ground of insanity, it must lie clearly proved, that at the time of committing the act, the party accused was laboring under such a defect of reason from disease of tlie mind, as not to know tlie nature and quality of the act he was doing, or if lie did know it, did not know that he was doing what was wrong.' However otliers may si»eculate, it is the duty of a jury to bring the evidence to this test. " Upon this general subject, we state to you the law as applied to a case before tlie judges of our own Supreme Court (three of them present), in tlie language of riiief Justice Ginsox : — "' Insanity is mental or moral; the latter being sometimes called homicidal mania, and properly so. It is my purpose to deliver to you tlie law on this ground of defence, and not to press upon your consideration, at least to an un- usual degree, the circumstances of the present case on which the law acts. 1 2 I'lttsb. r.0.;. 304 THE LEGAL TEST OF INSANITY. Notes. " 'A man maybe mud on all subjects; and then, though he may have glimmer- ings of reason, he is not a responsible agent. This is general insanity; but if it is not so great in its extent or degree, as to blind him to the nature and extent of his moral dut}', it is no defence to an accusation. It must be so great as to entirely destroy his percepti(jn of right and wrong; and it is not until that ])cr- ception is thus destroyed that he ceases to be responsil)le. It must amount to delusion or hallucination, controlling his will, and making tlie eonnnission of the act, in his apprehension, a duty of overwhelming necessity. The most apt illus- tration of the latter is, the perverted state of religious obligation, wi'icli has caused men sometimes to sacritlce tlieir wives and cliildrcn. •"Partial insanity is confined to a particular subject, the man being sane on every other. In that species of insanity, it is plain that lie is a responsible agent if he were not instigated by his madness to perpetrate the act. He con- tinues to be a legitimate subject of punishment, although he may have been laboring under a moral obliquity of perception, as much as if he were laboring under an obliquity of vision. A man, whose mind squints, unless impelled to crime by this very mental obliquity, is as much amenable to punishment as one whose eye squints. On this point there has been a mistake a.^ melancholy as it is popular. It has been announced by learned doctors, that if a man has the least taint of insanity entering into his mental structure, it discharges him of all responsibility to the laws. To this monstrous cxTor, may be traced, both the fecundity in homicides, which has dishonored this country, and the immunity which has attended them. The law is, tliat whether insanity be general or par- tial, the degree of it must be so great as to have controlled the will of its sub- ject, and to have taken from him the freedom of moral action. •' 'But there is amoral or homicidal insanity, consisting of an irresistible in- clination to kill, or to commit some other i)articular offence. There may be an unseen ligament pressing on tlie mind, drawing it to consequences which it sees, but cannot avoid, and placing it under a coercion which, while its results are clearly perceived, is incapable of resistance. The doctrine which acknowledges this mania is dangerous in its relations, and can be recognized only in the clear- est cases. It ought to be shown to have been habitual, or at least to have shown itself in mon; than a single instance. It is seldom directed against a particular individual ; but that it may be so, is proved by the case of the young woman who was deluded by an irresistible impulse to kill her child, though aware of the hein- ous nature of the act. The frequency of this constitutional malady is fortunately small, and it is better to contlne it within the strictest limits. If juries Avere to allow it as a general motive operating in cases of this character, its recognition would destroy social order as well as personal safety. To establish it as a justi- fication in any particular case, it is necessary either to show by clear proof its contemporaneous existence evidenced by present circumstances, or the existence of a particular tendency developed in previous cases, becoming in itself a second nature.' •' We introduce here, and answer, the written points submitted by the pris- oner's counsel : — 1. " 'The court are requested to instruct the jury that if they believe that at time of the killing the defendant was in such a state of mind as to be unable to mill sul. tliol by iiesl dim MORAL INSANITY. 305 Commomvealth v. IMoore — Contimiod. jgnitioii ii jiisti- Iroof its cistcnce Sl'COlKl l(> pris- Ithat :xt iil)le to iipply the test of right and wrong to tlio particular case, he is not a responsible a^ent, andtlio vert et should be, n«)t guilty.' "T'lisisthe tester criterion, 1u passing upon evidence of the existence of iiisani' :, in its common and usual forms, to a degree that will relieve from re- sponsibility; and we answer the point in the afllrinati\e. 2. " 'The court are requested to instruct the jury that if they believe the pris- oner t'> have been governed by an uncontrollable impulse, his will no longer iu subjection to his reason, owing to the excited and continued impetuosity of his tlioughts, and the tumultuous and confused condition of his mind; that, goaded by a sense of grievous wrong, he was wrought to a frenzy bordering upon mad- ness, which, for the time being, rendered him unable to control his actions or to direct his movements, their verdictshould l)e not guilty.' " We are at some loss to understand what is meant. If the point is predicated of moral insanity, which is recognized in Moslcr^s Case,^ and which we recognize, \vc adirm it. We recognize moral insanity, however, as they did, as of uncom- luon occurrence, and evidence of the existence and operation of which, since it cannot be tested by the general rule applicable to the connnon and usual forms of insanity, is to be received and passed upon in view of the cautions suggested ill the case referred to. If tlie pr)int means more or less than we have sup- posed, we refuse our assent. " You will incjuire, then, gentlemen, whether tl e prisoner was laboring under moral insanity, and iu doing so, you will remeniL'T the cautions suggested in the case read. Tlie general test here fails, for in this mania, it seems, one may be drawn on to consequences which ' he sees, but cannot avoid' and 'be aware of the heinous nature of the act.' Tliere is little, in such case, to distinguish il, from an ordinary criminal act. *To the eye of reason, every murderer is a niaihnan.' In the commission of every crime, the judgment and conscience are overborne for the time by temptation to evil, acting upon the wickedness of the li'.art, and exciting the evil passions to overmastering strength; but to allow that to excuse, would be to make crime its own justification and evidence of its own innocence, and to strike at the foundation of all accountability. It is well said, therefore, that 'the doctrine which acknowledges this numia is danger- ous in its relations and can be recognized only in the clearest cases.' Tlie evidence adduced to establish it should be sulijected to the strictest scrutiny. 'It ought to be shown to have been habitual, or at least to have shown itself iu more than one instance.' 'To establish it as a justification in any particular case, it is necessary cither to show by clear proofs, its contemporaneous exist- ence, evidenced by present circumstances or the existence of a particular tendency, developed in previous cases.' Is there such proof here? Were the shots fired at tlie deceased without discrimination or without a motive? Had a tendency to such acts been developed in a single instance in the whole life of the prisoner before this act of homicide, or has it been since? " If the prisoner was not laboring under moral insanity, you will inquire whether, upon the evidence here, he was laboring under mental malady of any kind, so as not to know and understand the nature of the act he was doing, and that it was wrong and would subject him to punishment. And we propose to 1 4 Pa. St. 264. 20 306 THE liKOAL TEST OK INSANITY Nuti's. (lotain you butasliort lime longer, with a few observations upon tlie evidence in this i)art of the case. " It is claimed on the part of the prisou'-r tliat his appearance and conduct on that occasion, explained and accounted for by other evidence heard in lii> belKill. evidenced insanity. The witnesses state that iie was wild and excited in lii> appearance, violent ia his gestures, his voice raised to a higli and i;nnat\ii;il liitcli, and heard in -i. crying tone, and his expressions, some of the witnesses say, were incoherent. The witnesses themselves were, of course, more or less ex- cited, and they use their own words to describe his conduct, and to express tlnir own impressions. Some express his manner and appearance as ' exciteil,' am! 'wild;' some of them say lie was in ' a frenzy.' Thev t.'.stify that he swon profanely and used also low and vulgar expressions The question here Is, wa«. this the incoherent raving and frenzied conduct of a niiuiiac, or one at tiic time insane, or Avas it the violence of one excited by passion and seeking re- venge? Was It insanity, or was it anger? You will judge. Violent gesture^, loud tones, and excited looks arc the natural expressions of anger, varying in degree with the temperament of the person, and the Intensity of his passion. Profanity seems also to be the natural language of angry passion. The witnesses say that his appearance was different from what they had ever noticed it; but none of them had ever seen him angry. Was his conduct natural or otherwise, supposing him to have been sane and to have sought out Marbourg and shot him down, in revenge for an injui-y? If, calm and unexcited, and as the witnesses had always before seen him, or with a smile on his face, instead of the lire of anger in his eye, he had met Marbourg and shot him down, without anyassigiud or known motive, and turned ai^jund and walked calmly away, without manifest- ing any excitement or concern, what would have been the conclusion, that he was sane or insane? " It is claimed, also, that his appearance and conduct, on that occasion, were in such striking contrast with his hal)its and character through his whole lifr, as to exhibit a complete transformation, wliicli is only reasonably explained on the supposition that the .sad calamity that liad befallen him, tlie evidence of wliicli he had conllrmed that morning by the confession of his wife, acting upon an excitable temperament for a week, during which he had ate and slept ijiit little, had dethroned his reason. And it is true that he has shown, by all tlic witnesses, not merely a good, but a very good, an excellent character. It lia- been shown, too, that he has long lieen a regular, punctual, and an exemplary member of a church; an elder, occasionally ofliciating for the preacher in liis absence; tliat no one had ever heard him use a profane or vulgar word, or any expression which might not be used in any company. All this is entitled to your consideration, and to such weight as you think it deserves, in determining the question of his .sanity. Is it probable, the inquiry naturally arises, that if lu> reason had not for the time been overthrown he would have acted and talked in :i manner so inconsistent witli his Avhole previous life, and so conti'ary, appar- ently, to his very nature, as exlubited in the proof of his excellent character a^ a man and a Christian. And yet it is not to l)e forgotten tliat men of tlie iiio>t exalted personal and religious character have fallen into crime. David, who wa- rt man after God's own heart, was guilty of a talked in y, appar- iracter a» the most who wa'^ f murder. tlio high M.OKAL INSANITY 307 Coimnoiiwealth v. Moore — Contiinied. |)rie.>t, ' I'eter sat without in the i)alace, and a duiusei came unto liini sayill^, lliou also wast with Jesus; but he tlenied before them all, saying, I know not wliat thou sayest.' lie was accused by anotlier, ' and again he denied with an oath, saying, I know not the man.' And 'after a while they that stood liy accosted him with tlie same accusation; then began he to curse and swear, say- ni'S, 1 know not the man.' lie soon afterwards ' went out and wept bitterly.' I'.ler was guilty of lying and profanity. It was conduct grossly inconsistent with ids religious character; but it is not intimated that he was iii.sane. The Sa\ ior, ' who knew what was in the lieart of man,' said to his followers, ' watch and pray that ye enter not into temptation.' And an apostle said, ' let him that tliiiiketh he standeth, take heed lest he fall.' Such is human nature, tliat a good diaracter is no certain guaranty that its possessor may not fall into sin, and i)Ut feeble evidence against clear proof of guilt. Still, we commend this evich^iice tn yunr consideration upon this question of insanity, and you will allow it all the weight you think it merits in the i)risoner's behalf. " It has also been shown that one of the prisoner's brothers is insane, and has l)een a raving maniac for twenty-eight or tliirty years; and that he has a sister wlu), as some of the witnesses expressed, is a weak-minded woman, Slie is married and has children, but, in the opinion of some of the witnesses, is not capable of giving proper attention to her cliildren and her domestic affairs. Tliis evidence was offered and received to show a hereditary taint. Insanity is no doubt a hereditary disease, which may appear and reappear, overlapping .sometimes a generation; and proof of its existence in a family is pertinent evi- dence on a question like tills. The evidence here, however, going no further than we have stated, is very sliglit. It does not appear that his parents or any of his ancestors have been insane, or any of the family except one brother. But if such proof were made, the force of it woidd only be to show a liability, or a predisposition at most, to the disease. That is not the disease. If a hereditary taint were established, it might aid in solving the question, whetlier his unusual conduct is most reasonably ascribable to insanity or auger. You will judge whether this evidence sheds any light on the question. " We all I'emember, too, that the prisoner became suddenly ill here in this room un last Friday, and it has been sliown that, after he was taken to the jail, lie was lahiiring under delirium, and was for a short time, frenzied and raving. He iiuauined there were persons there trying to injure him, and he wanted the >lieriff sent for to protect him, when the sheriff was there trying to calm him. lie wanted to see his son when his son was present. He fancied they wanted to .shout him, and that he saw blood on his breast. He continued in that state near lialf an hour, when he fell asleep and awoke rational. This Avas delirium 're- sulting,' as Dr. Bunn testitles, 'from depression following higli nervous excite- uient, and resembling mania apotu.'' During its continuance, there can be no lioulit he would not have been responsible for any act done by him. But the <|Uestion is not what was his condition on Friday, Init on the 12th of Fel)ruary, when he shot Marbourg. The evidence has no other bearing on this question than as it may tend to show the existence of some predisposition to delirium or mania, nnder like circumstances, and from a similar cause and of the same charac- ter He had been under excitement a week before the homicide, this fact, with the evidence now under consideration, it is argued, explains and accounts lor 308 THE LEGAL TEST OF INSANITY. Notos. his conduct at that time. It is not madu to appear tliat he labored under any delusion tlien, lie was dealing witli a real character and for a reason tlun given. To the excitement up to that time was added tliat of the tcrrilile tragedy, of everything tiiat has followed to lum, and of this trial, and yet wo do not learn that lie had any mania or delirium during "the Intervening montli. That mania, loo, results from and follows excitement; wliile he was under high excitenieni at the time of tlie homicide. It is to lie remarlved, also, tliat in mania a potu, with wliicli Dr. Bunii classes it, the patient is not tierce, 1)nt fearful; liis delu- sion ix'ing apprehended danger to himself, which he is trying to escape; and so it was with him on Friday. " On the other hand it is urged tliat the prisoner, during the whole of tiu' week before the liomicide, was ferreting and trying to ascertain the trutli of thr reports concerning his wife and tlie deceased; going from one person to another, and from place to place, as he discovered some new source of information ; com- paring statements and noticing discrepancies in his efforts to get at tlie trutli, as counsel would prepare a cause; that after having satisfied himself of tlie trutli of the reports, he provided the loaded pistol, and went to the ^'icinity of the post- office, where, as it is alleged, he expected to find the deceased; waited and watched, lying in wait for him in Welin's store, as it is also alleged, till lie passed ; followed hiin to tlie post-oHice, and shot him down — what he declared lie would do if lie found the report to be true, and giving that reason for it at the lime and afterwards. In all this it is argued against the prisoner, he was fol- lowing out and executing a deliberately formed and repeatedly declared purpose, reasoning at every step, and knowing and understanding what he was about. It is urged, also, that he afterwards went to the oHice of Irwin Rutlcdge, Es(|., knowing where it was, and tliat he was a magistrate; stating to him tliat he had shot Marbourg, and had come to surrender himself into tlie hands of tlie law. expressing at the same time, his belief that God would forgive him, and his will- ingness to be tried by a jury of his countrymen. Tliis, it is argued, all clearly shows that lie knew at the time the nature and consequences of the deed, and understood before wliat tribunal he was answerable for it. " You, gentlemen of the jury, will take into careful consideration tlie wliole evidence, and determine the prisoner's responsibility, that is all we have to say to you. " If you find tlie prisoner guilty, you will state in your verdict the degree of his crime, or of what you find him guilty. If you find him not guilty on the ground of insanity, the only ground on which you can acquit him, it will be your duty to state tliat you find he was insane at the time of the commission of the act and that you acquit him on that ground." But these latter cases are simply the charges of trial judges, and are of no value as authority, where they confiict with tlie rules laid down on the same sub- ject by the courts of last resort in the same States. • §2'). Doctrine of "Moral Insanity " Disapproved. — The courts of several States have expressly repudiated this doctrine. In Georgia it is said that moral insanity has no foundation in the law, and will not be permitted as a defence to 1 See ante, pp. 234, 259. DOCTUINE OF MORAL INSANITY DKSAI'I'KOVKI> '.WJ In most of the Statess. ;tl under any reason then ibie trajfedy, do not learn That mania, 1 excitement lania a putu, il; his dchi- ape; and so diole of tlic trutli of the 1 to another, itioii; coni- :lie triitii, as of tlie trutli of the post- waited and ?ed, till he ; declared he 'or it at till' lie was fol- •ed purpose, was about, cdire, Es(i., that he had of the law. lid his will- , all clearly i deed, ami the whole lave to say ; degree of ilty on till' 'ill be yonr of the act are of no same sub- of several that moral defence to a crime.' In Spannw *S7rt(e,* the Rnpreine Court of that State said: "The evi- dence in this record discloses the undoubted fact that tlic defendant and Eber- liart, a girl living in tlie house willi him, killed Ids wife by strangling and brealiing lier neck with u rope wlicn she was lying on her bed asleep; that after they had killed her, they lieated water and attempted to obliterate the marks of the rope around the neck of the deed woman, but the more they washed it the plainer the marks appeared; that then the parties fled to the State of Alabama, were pursued, and defendant was found in Coffee County, cliopping cotton in the cotton patch of one Harris. When defendant was arrested by those who pursued him he asked them what authority they had to arrest him out of the State. Tlie motion for a new trial in this case is based mainly on newly discovered evidence, since the trial, of the defendant's insanity, and tlio aflldavits of several doctors have been procured who have examined him since the trial, and some of whom knew him before the trial, and they give it as their opinion tiiat the defendant is atllicted with moral insanity. There are also aflldavits of other j)ersons, not doctors, who liave known the defendant, who state that he is a dull, weak- minded man. If we are to understand by ' moral insanity ' that the defendant was so depraved that he Avas regardless both of the laws of God and man, as the enormity of his crime would induce most people to believe, then the import of the words, moral insanity, requires no further explanation; but if moral insan- ity is to be understood as that species of insanity Avliicli, in tin sense of the law, will excuse the defendant from the commission of the crime with which he is charged, then it is a great mistake on the part of those who insist on it. The insanity which the law recognizes as an excuse for crime, must be such as de- thrones reason and incapacitates an individual from distinguishing between right and wrong. There is not one of tlie attldavits in this case containing the newly discovered evidence, including all the doctors, wlio venture to state that the de- fendant did not liave sullicient reason and capacity to distinguish right from wrong at the time the crime with which he is charged was committed, and that is the fatal defect of all the e\i(lence contained in the record, in support of the motion for a new trial. The defendant had sutHcient reason and capacity to attempt to o))literate tlie marks of violence from the neck of his dead wife, and to fiee from the State with his paramour after he liad committed the crime; and lie had sullicient reason and capacity to demand of his pursuers Ijy what author- ity they arrested him out of the State where the crime was committed, The records of tliis court, we are quite sure, do not furnish a more agLcravated case of cool, deliberate murder than the one now before us, and we shall not inter- fere with the verdict of the jury which finds the defendant guilty of that crime. Let the judgment of the court below be alHrmed." And the doctrine of moral insanity has been expressly disapproved in North ^irolina,'' Michigan,* and Alabama; ^ also in the other States where the right iind wrong test is recognized. In Ueg.w Haynes,'^ the prisoner, a soldier, was tried before Bk.\mwkll,B., for tlie murder of Mary MacGowan. The deireased was an unfortunate woman, with whom the prisoner had been intimate. No motive was assigned for ' Choice V. State, 31 Ga. 424 (18ncli a deed for its own relief. Hut if .•lu influence l)e so powerful as to be Icniiril irresistible, so much the more reason is there why we should not withdniw ;iii) of the safeguards tending; to counteract it. Tliere are three powerful reslraiiit^ existini;, all teudiuii to the assistance of the person who is suffering; under such an influence — the restraint of religion, the restraint of conscience, and the re- straint of law. But if the influence itself be hcdd a lej?al excuse, renderinji the crime dispunishable, yo\i at once withdraw a most powerful restraint — ihat for- bidding and punisliinii its perpetration. We must, tlierefore, return to the siiii- ple question you have to determine; did the prisoner know the nature of the ad III was doiuir, and did he know tliat he was doinji what was wronij? " The pris- oner was found iiuilty. In Jicff. V. Burton,^ tried before Wic.iitmax, .1., in I8t;;3, the prisoner wa- indicted for the nnirder of a boy, and the learned judge instructed the jury a> follows: <'As there was no doubt about the act, the only question was whether the prisoner, at the time lie committed it, was in such a state of mind as not to be resi)onsil)le for it. Tlie prisoner's account of it was that he liad done it from a morbid feeling; that he was tired of life and wished to be rid of it. No doubt j)risoners iiad been ac(|Uitted of murder on the ground of insanity; but the (piestion was, what were the cases In which men were to be absolved from re- sponsibility on that grqunil? HddfiaUVs Case differed from the present, for there wounds had been received on the liead which were proved to liave injund tlie brain. In tlie more recent case of McXiajhten the judges had laid down the rule to Iks that there must, to raise tlie defence, be a defect of reason from disease of the mind, so as that the person did not know tlie nature and (|uaiit\ of the act he committed, or did not know whether it was riglit or wrong. Nnu to apply this rule to the present case would be the duty of the jury. It was iioi mere eccentricity of conduct which made a man legally irresponsible for lii> acts. The medical man called for the defence defined homiciilal mania to be ;i propensity to kill, and described moral insanity as a .state of mind under which :\ man, perfectly aware that it was wrong to do so, killed another under an uncon- trollable impulse. This would appear to be a uiost dangerous doctrine, and fatal to the interests of society and security of life. The question is whether such a theory is in accordance with lawl' The rule as laid down by the judges is (juite inconsisx'nt with such a vi<'w, for it was tliat a man was responsible for \ '■& I ' 3 I'. At F. --•!. >IOI!AL INSANITY NOT KIX 0. 10 jury a> s ■niictlier as not to le it from No doiib) ; but the from ro- L>sont, for injured aid down ■;on from d (luaiil) i£. NiiW , was iiDi ; for Li> a to be a • uiiicli a 1 iiucou- ino, and wliotlier ? judges sible for his actions if lie Iviiew tlio diftVroiioo botweon risilit and wroinj;. It was iiijiod 'liat llie prisoner did tlio act to bo liaiijicd, and so was under an insane delusion, lilt what iloliision was lie under? So far from it, it .showed that lie was ([uito . uiiscious of tlio nature of tlio act, and of its oonsefiuences. lie was supposed to desire to )»o liaiiiii'd, and in order t 2(1. The New Hampshire Rule— No Test— State v. Pike.— Finally tlu; ciiwrts of New liampshire, ami some otlior Stiites, unable to llnd a satisfac- lury one, have discarded ail tests. In State v. Pike,^ tlio prisoner lioinu; indicted f'lr the murder of one IJrown, hiscounscd claiinodthatho was irresponsibleby roa- >i in of a species of Insanity called dipsomania. The court instructed the jury that " if they found tliat the prisomr killed IJrown in a manner that would bi' riimiiiai and unlawful if he was sane, their verdict should be ' not guilty liy roa- -c general question of tile ieiial tests of insanity; for if tiie instrnelioiis iriveii upon ilipso- nianla, are eorrt'et, tiiey wouiil l)e correct wiien given upon any otiier ullejjed form of Insanity. "If l coiiiiiion idtlio tests liiil prccc- :iplo, tlicy c! paths of tht'iii. In attraction ulo to ad- II contract acillatinir. ho law to opinions nntis, olc. y or plea. ; by plea. 1 of this opinion, id it, l)ut anthori- >fs Cnnc, shall not u uct Ijy ilf of an ion com- to avoid his own lie gives lat ' uii- itted to Lloiil)te(I t of Ills time of son ex- 10 came nry VI. e loose ;rary to reason, tlie maxim that a man sliall not stultify hl.ii'^elf, hath hccii lianded down as settled law.' i " In ITti", I-oi'd M.\\sfii;m> stated the law tiius; ' II iiath boon said to l)e 'a maxim tliat IK) man can plead his Iteiiii; a iiiiiatlc to avoid a deed executed, or vxeiiso an iieL doiu; at tliat time, l>ecanse,' il is said, ' if lie was a lunatic lie could not remember any action lie had done diirlmj! tlic period of his insanity,' And tlds was tlie doctrine formerly laid down l>y some jndifes; but I am p;1ad to lliid that of late it liath i)een generally exploded; for the reason assiuned for It, Is, In my opinion, wliolly liisiilllcieiit to .support It; Ijecansc, though he could not rememlier wliat passed during Ids insanity, yet lie might justly say, if he ever executed siu'ii a <\'ed, or did sncii an action, it must liave lieen during ids conlluemeiit or lunacy , for he did not do il eitlier before or since that time. As to the case In which a man's plea of Insanity was actually set aside; it was not more than till' ; It was when they pleaded ore /<(/((.s'; tlie man pleaded tliat lie w.is at the time out of his senses. It was replied, iiow do you know that you were out of your senses? No man that is so, knows himself to be so. And accordingly his plea was, upon this (|uiljble, set aside; not l)e- cause it was not a valid one if he was out of his senses; hut because they con- eluded he was not out of his senses.'^ « Tlie party liimself may set up as a (lufenco, and In avoidance of his contract that he was i>nn compns vientis when it was alleged to have been made. The principle adv.inced by Littleton and Coke tliat a man shall not be heard to stultify himself has been properly exploded as licing manifestly absurd and against natural justice.' ^ ' Vet, clear as this doc- trine appears, In common sense and common justice, it lias met with a sturdy ojipositlon from the common lawyers who have insisted, as has been justly re- marked, in dellance of natural justice, and the universal practice of all civilized nations in the world, that, according to tlie known maxim of the common law, no man of full age should be admitted to disal»le or stultify himself. How so ali- surd and mischievous a maxim could have found its way Into any system of jur- isprudence professing to act upon civilized beings, is a matter of wonder and luimiliatlou. There have been many strugiiles against it by eminent lawyers in all ages of the common law; but it is, perliaps, somewhat dilllcnlt to resist the authorities, which assert Its estal)lisliinent in tlie fundamentals of the common law; a circumstance wiiich may well abate the boast so often and so rashly made tliat the common law Is the perfection of human reason.' ♦ " It .seems to have been finally considered, in this and other jurisdictions, tliat a man might avoid a contract on the ground of his insanity in ail cases, excei)tiiig, perhaps, a contract for necessaries.'' Hut It is now held tliat he is estopped to avoid a contract made in good faith, unless he restores the other party to his previous ])osition, or makes compensation.*' This result places tlie contracts of insane persons and minors, to a considerable extent, on the same ground.'' 1 2B1. Com. iouiivi. - Cliamberlaiu of I, union r. Kvaiia, 5 IJl. Com. App. 149 (Am. ed.), (1T7:'>). ^ 2 Kent's Com. 4.'>1. * Story Eq., sect. 215. '- Langf. Widden, 2 N. H. 43.>, 438; Rurke r. Allen, 2!> X. II. IOC; Suaver v. IMielps, 11 I'lclv. :!01; Gibson v. Soper, (> Gray, 2T'.>. « Molton ?•. Cnmroux, 2 W. 11. & G. 4S7; s. <■., t W. II. & G. 17; Young c. Stevens, ISN. II. i:!;!; 1 I'ars. Con. ."isi-^Sfi (,.5tli ed.). ■ Can- V. Clousli, 26 X. 11.280; Heath v. West, 28 X. H. 101 ; Lincoln v. Buckniaster, .•12 Vt. C52; 2 Greeul. on Ev., sects. 3(i'J, 370. 314 THE I.KGAL TEST OF INSANITY. Notes. "The Englijsli hnv, in proccedini;s for tiuardiaiisliip, lias Ikhmi coiifiiscd aiiil uuseltk'd.' " 111 rcliiUou to till- l)iirdcnof proof on tlic question of sanity in criminal rases, the Eny;lisli and nearly ail the American authorities liave b. en manifestly wrong. The uniforiii I'lile in EiiLilaiid, and tiic licneral rule in this country, has been that the bnrdeii was on the ilefeiidant to prove sanity, either biyoiid reasonable doiibl or by a preponderance of evidence. In Kimj v. Arnold^'' Mr. Justice Tii.vfY said to tlie jury: 'The .shooting-, my Lord Onslow, which is the fact for wliicli tli prisoner is indicted, is proved beyond all manner of ccmtradictioii; but whethei this shootiiig was malicious, that depends upon the sanity of the man.' Oiir •)f the most important judicial encroaclnneiUs upon the province of the jui'y, in Knghvnd, has always been the inferenci' of malice declared by the court as ;i legal presumption. The legal idea of malice includes the idea of sanity; and the legal presumption of malice threw the burden of proving insanity on tin- defendant. This has always been understood in Kngland, as distinctly as it was by Erskine, when he said, in himj v. Iladtiehl:'-^ ' I must convince you that tin unhappy prisoner was a lunatic. The whole proof, therefore, is undoubtedly cast upon me; ' and by Mr. Baron ^I.mjtix, when he charged the jury, in Qncm v. ToJCM^r?/,* ' Unless they were salislied — and it was for the prisoner to maki it out — that he did not know the coiise(|uences of his act, or that it was agaiiiM the law of (Jod and man, and would subject him to punishment, he was guilty of murder.' Tliis great errt)r was corrected in Stute v. Bartlett/^ — a case most revolutionary ii; precetleiit, but most conservative in principle. "In testamentary cases, tried by a prol)ate court witliout a jury, the court necessarily decides the fact as well as the law. in tStcwart v. Lispenard,' Blanchanl v. Nestle,'' and Clarke v. Sawijer,'^ it was held that mental linbecilit\ is not testamentary incapacity unless it amounts to a total absence of reason: but thiS test was abandoned in Di'lnficld v. Part-ih.'* In 182G, an English judge of probate decideil, in Dc.io v. Clark,^" tliat as a matter of fact, proved l)y tin medical authorities of his day, delusion was tlie test of insanity." The courts ')!' this country inadvertently adopted in te.stameiitary cases, as a rule of law, the tot of delusion, which the English judge of probate had found as a matter of fact And this mistake greatly increased the ditliculty of extricating tiie .sid)ject from the einliarrassments and o!)scuritii's which beset it. In isi'J it Avas su])posed that tlie American doctrine of testamimtary capacity was lirmly established on the English proliate foiimhition of fact, tv.istuken hen for a basis of law, when suddenly even that foundation was destroyed by the Knglisli probate court. " In Smith v. Tehhitt," Sir J. P. Wii.tn-: said: ' What is t(j be the proof of dis- ease? ^yhat is to be the test., if there be a test, of morbid mental action? The existence of mental '' Iclusions," it would perhaps be answered. But this only liostpones the question, in place of answering it. For what is a mental delu- sion? IIow is it to be .U tined -o as to constituti' a lest, universally applicable, 1 1;? Law Mag. A Law Uev. 122. s lf> St. Tr. n'X}, T(U. 3 27 St. Tr. l;U4, 1:!18. < 3 F. & F. s;59. f' 43 -V. H.221. « 2t> Wend. 2,'i5. ' 3 Denio, 37. •■ 2\. Y.4>.1S. " 25 N. Y. n. "■ 3 Adiliiins, 7'.». " Hoardmnii r. Woodnian, 47 N". 11.148,149. '5 I.. I!. 1 I', .'i I>. :;n8. NO Ti>T I.N m:\v iiami'siium:. ;; 1 ') Mr. Jiistico Dot's Opinion. of mental disonU'i- or disease? Tlie won! is not ii very fortnnate one. In connnon parlance, ji man may l)e said to be under a " delusion," wlien he only labors under a mistake. Tho "delusion" intended is, of course, something; very different. To say that a "morbid " or an " insane delusion " is meant, is to be;^ tho (luestion. For the "delusion" to be sought is to 1)0 tho test of insanity; and to say that an insane or morbid delusion is the test of insanity or lisease, does not advance tho in(iuiry. "A belief of facts which no rational person would have believed," says Sir John Xu'UOI.l. 'No rdtimml person." Tills, too, appears open to a like obje(;tion, for what are the limits of a rational Mian's belief? And to say that a belief exceeds them, is only to saythat it is h'ralional or insane. "Tho belief of things as realities which exist only in the hiiagination of the patient," says Lord UnorciiAM, in Witn'mj v. U'ariixj.^ But ■«iirely, sane people often imagine thiiiu;s to exist which have no existence in reality, both in the physical and moral world. What else giv 's rise to unfounded fears, unjust suspicions, baseless hojies, or romantic dreams? I turn to another dellnition; it is by Dr. Willis, a man of great eminence, and is quoted by Sir Joiix Niciioi.i,. in Dew v. Clnrk: "A pertinacious adherence to souks delusive idea, in opposition to plain evidence of its falsity." This secMiis to offer a surer _q'ound; l)ut then the "evidence " of the falsity is to bo " iihiin," and who shall ^ay if it bo so or not? In many or most cases it would '"j easy enouiih. Those who have entertained the ' delusive idea " that their bodies were made of glass, or their legs of Initter — as it may bo found in medical works that some have done — certainly have "i)Iain evidence" at hand — the evidence of their senses — of its falsity. But what if the delusive idea concern a subject in which the senses play no part, and the lain evidence" by which it is to be discharged is matter of reasoning, and adonssed to the intellectual faculty, — will all sane nun agree wlusther the evidence is plain or not? and, if not, shall one man, in all cases, proiiounco aiioth r a nionoinaniac, when the evidence is plain, to his ivascii, of tho falsity of the other's ideas. " ' I liiid no fault with the language of these defnitions, as fairly and properly dcs(;ribing the mental pheiioniena that are used \.., '.lepict. I only assert that the I'xistence of mental di'lusions thus dt^lined, is nob capable of .leing erecited into an universal test of mental diseasi'. It is no doubt true that mental dis(>ase is ahvays accompanied by tho exhibition of thoughts and ideas that are false and mil iiinded, and may therefore be properly called "delusive." lUit what 1 mean to convey on this head Is this: that the question of insanity and tho question of "delusions " is really one and the same, — that the unJ'j delusions which prove insanity are iiisaiK! delusions, and that the broad iiKiuiry into mental health or disease cannot in all c;ases be either narrowed or determined by any lU'evious or -ubstituted inquiry into liie existence of what are called "delusions." I say in all cases, for in some such as those to which I have already alluded, where the Illusive idea ought to receivt; its condeiniuitlon and expulsion at once from the -iinple action of the senses, tho contrary is tho case; and the same may be said of (Illusions obviously opposed to the simple, ordinary and universal action of reason in healthy minds. These are the simple cases alioiit which no one would lonbt, and in tliei;'. the proof of the " di'lusion-. "' i^ also the proof of insanity. (1 .McKi. I'. ( . ;;:ii. 316 THE LEGAL TEST OF INSANITY. Notes. without iiiori'. But what is to bo said of tho more complicated cases? What If the diseased action of the inind does not exJiihit Itself on the surface, as it, were, opposing its hallucinations to the couuuon senses or reasons of all man- kind, but can be tracked only in the recesses of aljstract thought or religious speculation, — regions in which the mental action of the sane produces no com- mon result, — and all is (luestion and contlict? In what form of words could a " delusion " be defined whicli would bo a. positive test of insanity in such cases as these? In none, I -jonceive, btit " insane tZ>7(/.s(t>Hs," or words of the like import, Wiiich carry with tlu-m the whole breadth of the general imiuiry. flow, then, i> this question of insanity to be appro'icl'.ed by a legal tribunal? What tests an' to be applied for disease? What limits nisigncd, within which extravagance <■ thought is to be pronounccvl compatible witli mental health? The decided lase^ offer no light on these heads. I nowhere 'ind any attempt to devise such tests or assign such limits. Nor do I conceive tliat any tests, however claljorate, beyond the connnou and ordina*".' method of judging in such matters, would be competent to bear the s+rain jf individual cases in the course of experience.' "The judge held it to be the duty of the court 'to inform itself, as far as opportunity permits, of the general results of medical oljservation; ' and he quoted Dr. Hay, Dr. Prichard and Dr. Esquirol. If the .American law of insanity is to be tliat wliich the English prol)ate court holds, from time to time, to be a matter of fact depending upon 'the general results of medical observation ' and the progress of medical science, we have no assurance that this branch of our law will be more stable hereafter than it lias been heretofore. " The attempt to establish a legal test of mental disease ha-- Ije^'u as unsucces- ful in criminal as in testamentary cases. In England, froml82(i to 18(!7, delusion was applied as the test in the latter; but it was not adopted in the former; ami it was not shown how it liappeued that wiiat was an infallible test of mental dis- ease in a man when he disinherited his child, was no test of mental disease in him when he deiu'ived his child of life. " It has been held within one hundred and llfty years that tlie test in criminal cases is whether the defendant was totally depriveil of his understanding ami memory, and did not know wliat he was doing any more than a wild beast.' This was the original form of the knowletlge test. In ISOO the attorney-genera! of England declared tliat this test had never l»cen contradicted, but had alway> been adapted. ' Erskiiie, in the saip.; case, said: 'I will employ no artillce;^ of speech, the attorney-iiciieral standing iindoulitedly upon the most revered au- thorities of the law, has l;iid it ilowii, tli;it \o lU'otect a man from criminal n-- sponsibilit'j ihi'W. must he a total drprirntioi) of mono nj vnd i udrrstamUvij. I admit that this is tlie very expression used hy Lord Cukk and I ord ll.vi.i:; but the true interpretation of it deserves the utmost attention and consideration of the court. Di'luniim, theri'fore, where there is no frenzy or raving madness, i> the true character of insanity. I really think, however, that the attorney- general and myself do not, in substance, very materially differ. In contemiil.at- ing the law of the country, and the pi'ecedents of its justice to which, they nnisf be ai)i>lii!d, I tlnd nothing to challi'iige or i|uestion. I ai)i)rove of tliem throunli- out; I subscril)e to all that is written bv Lord IIai.i; : I aiiive with all tlieaull.oi- ' ICiiiK c. .Vrnold, Id SI. Tr. (I'.i.'i, TO"). Kiiii; r. HMdlieM, 27 St. Tr. I-JSS. NO TEST IN XP:W IIAiMPSIIIRE. 317 Mr. Justice Boe's Opinion. ities cited by tlie attorney-general from Lord Cokk.'' Tlie effort of Erskine was made Avitli such ' artifices of speecli,' tliat the court seem to have been niys- lilied. When Lord Kknyox, satisfied tliat the defendant Avas insane, stojjped the trial, and ordered a verdict of acquittal, his remark that, ' with regard to tlie law as it has been laid down, there can be no doubt upon earth,' ai)par'jntly meant as it has been laid down by the attorney-generiil and by Erskine. He seems not to have und"rstood that the ancient test was (luestioned; and yet, tried by tliat test, Iladlield must have been convicted. Iladlield's aecjuittal was not a judicial adoption of delusion, as the test in the place of knowledge of :idit and wrong; - it was probably an instance of the bewildering effect of Ers- kiiu'.s ailroitness, rhetoric, and elotjuence. " Tl^c common instincts of humanity liavc abandoned the original ' wild beast ' form of the knowledge test, only to adopt others eipially arl)itrary, though less -hocking to the intelligence and sensibility of the age. Knowledge of right and wrong, in some degree, with more or less of exi)lanation and variatiiui, has ii'ways been, in theory, the test of criminal capacity in England, and generally Ml this country; tlie English courts have never recognized delu>ioii as the test. Tliey have noticed (Illusion only so far as it destroyed the knowledge of riglit and wrong, which is the same as an explicit rejection of it as a test. If knowl- cilge of right and Avrong is the test, it is immaterial whether that knowledge be lu stroyed by disease assuminii- tlie forms of delusions, or any other form. " 't is matter of hist >ry that insanity has been, for the most itart, a growth of tlic modern state of society. Like many other diseases, it is caused, in a great ilegree, by the habits and incidents of civilized lite. In the I'aiiier and ruder ages, it was comparatively rare. Its i>resent extent has been cliielly attained witliin a few liuiidred years. Until reei'iitly there were no asyjuins for the lii- -aiie, and no experts devoting their lives exclusively to the practical study and treatment of the disease. The neces.-ary opportunities for ol)tainliig a thoroiigli under.standlng of it did not ex. st until they were furnished Ijy the positions of superintendents of asylums and their assistants. Cousetiuently, until recently, there was very little knowledge of the su' ject. " In old books It is often found under the head of lunacy. Lord IIai.k was the llrst writer wlio undertook to intro('uce into a lawbook any considerable >latement of the facts of mental disease,'' Not only was he guld"d by the best medical authorities of his day, Init he carefully used tlie language of medical men. Among other current medical ideas which '.le recorded wiis this: The iu- -aiiity 'which is interpohited, and by certain i»e' iods and vicissitudes,' 'is that which is usually called lunticij, for ti'.c UiOi;;; bi'.tii a great influence in all diseases of the brain, especially in this kind of dciacntia; such persons, commonly, in the full and change of the moon, especially about the equinoxes und suminer sol- >tice, are usually in the height of their distemper; ' and ' such persons as have their lucid Intervals, — which ordinarily happens between the full and change of the moon — in such Intervals have usually at least a competent use of reason.' Ill' d'd not '">agini! that this medical lunar theory was a principle of the common law. Lord Euskini;, in delivering judgment in Craiuaer's Cms*',* said: 'The 1 /(/., 1;109, lUl, l:iU, l:il8, liii. 3 1 lliile I'. C. •.".», :J>, < 11 Vee. 446, 451. 318 TIIE LKGAL TKST OF INSANITY. Notes. U'' moon has no iiiHuL-iici'; ' and the rei)orter inserted this marginal note: ' Incases of lunacy, tlie notion that tlie moon lias an intluence, erroneous.' The reporter may not have distintruished l)et\veen law and fact; hut Erskine did not suppose that he was announcin-i; his disajireement with II.M.r, on a point of law. "Tlie otiier causes, .symptoms, and tests of mental di.sea.se recorded by H.vi.i: were as clear matters of fact as the lunar theory. Wlien he put tliem in his hi>- tory of the IMeas of the Crown lie merely followed the line of the custom that had been pursued liy him and all oilier Knttlisli judires of iiivim^ to the jury tlieir opinions of the f!)cLs of the cases tried before them.' In tlie History of the Common Law, he says of trial by jury: 'Another excellency of tiiis trial is tlii> that tlie judge is always present at the time of the evidence given in it. Herein he is able, in matters of law, emerging upon the evidence to direct them; and also, in matters of fact, to give them a great light and assistance by his weigli- ing the evidence before them, an*", observing where tlie <|nestion and knot of tlie business lie; and by showing them his oiiiuion even in matter of fact, whicli is a great advantage and light to laymen.' '^ " In Kinrjv. Cullender and Z>hh;/,' tliere is an instance of the positive manner in Avhich judges were accustomed to give their opinions to the jury on matters of fact. In that case, the defendants were tried before llxiM for witchcraft; and he instructed the jury as follows: ' That there were .such creatures as witclies, he made no doubt at all; for, first, the Scriptures had allirmerl so m :h. Secondly, the wisdom of all nations had provided laws against tuch person^, wluch is an argument of their coutldence of such a crime.' The jury found a verdict of guilty; tlie judge was fully satistied with the verdict; ai>d, upon Ids sentence, the defeiulants were executed. Tlie doctrines of insanity and witch- craft, stated by Lord IIalk, were held by him in connnon witli the most enlight- ened classes of the ino.st civilized nations. He was not their author, nor was he responsible for them. They wi're i-qually doctrines of fact; one was no more a matter of law than the other; and tliey are eciually entitled to oblivion, although the ancient doctrine of insanity outlived the ancient doctrine of witchcraft. " When we remember that the universal belief in witchcraft has been overcome within two hundred years, it is easy to understand how the phenomena of insan- ity were long regarded as supernatural. Witchcraft and demoniacal possession were accei)ted as truths taught by miraculous inspiration. Cases of insanity were found, answering tlie bililical description of cases of demoniacal posse- sion; but the suggestion tliat any of the latter might be cases of inent;il or i)liy- sical disease, was received as an attack upon tlie iufaHlbiiity of the Seri|)tur('s. This state of tliiiiiis discouraged invest iiialion, and encouraged the bi'lief that insanity, at least in some of its forms, was demoniacal i)osscssion. The natural causes and operations of cerebral disease were mysterious: the tlieologieai clouds that encompassed it, were appalling. " In a period of ignorance, credulity, super'e, in its origin, beyond the bounds of nature, and curable only by the power of exorcism. 1 Ante, p. 41G, 417 = 2 Hale's Hist. Com. L. 147. 5 6 St. Tr. "00. NO TKST IX NEW IIAMrsiIIUE. 319 Mr. Justice Doe's Opinion. "As liic ancient tlioory of diiiholisni L;nulnall\ passed away, insanity was >till altriljuteil to special providences, and not to tlie operaticn of tlie fjeneral iawsof liealtli. Tlie snfferers were treated for wic]contiiuied in England. And this practice lias carried into rei)orts and treatises, on various branches of the law, many opinions of mere matters of fact. Without any conspicuous or material parti- tion l)etwecu law and fact, without a plain demarcation between a circumscribed province of the court and an independent province of the jury, the judges gave to juries, on ..lved by the jury, and not le;ral didiculties for the court. " If our precedents )ractically estalilished old medical theories which science had rejected, and abs« I utely rejected those which science had established, they might at least claim r^tv merit of formal consistency. But the precedents require the jury to be instructed in the new iue\lical theories I y experts, and in the old medical theories by the judge. " In (^ueen v. (Mffrd,^ tried in 1840, Ur. Chowue testified that he considered doing an act without a motive a pn»of, to some extent, of an unsound mind: that one kind <'»:f insanity has bi-rn well descrilRii by the term 'lesion of the will; ' tliut it is sometimes called moral insanity; tliat patients are often im- 1 9 C. & P. 545, 646. NO TEiST IN NKW HAMP.SIIIUK. 321 Mr. Justice Doe's Opiiiion. pcllod to commit suicide without any motive; tliat tliis state of mind is not incompatible with an acntencss of mind and an al)ility to attend to tiie ordinary affairs of life.' Lord Dkxman instructed tlie jury tliat, if some controlling: disease was in truth the actini; power with tlie defendant, which lie could not resist, he was not responsible, and that knowledge was the test. "In Queen v. McNaohten, tried in 1843, Dr. Monro testilled that an insane person may commit murder, and yet be aware of the conse(iuences; that lunatics often manifest a liiiih decree of cleverness and iniienuity, and exhibit occasion- ally srreat cunninij in escaping from the consequences of .sucli acts; and tliat lie considered a i)erson laboriinr under a morbid delusion to be of niisouud mind; that insanity may exist without any morbid delusion; that a person may be of unsound mind, and yet be able to nianase the usual affairs of life; that insanity may exist with a moral perception of right and wrong, and that this is very common. Eight experts gave .^icir opinions, going to show that the ilcfeiidant had committed the act in question under the intlueiice of a morbid iklnsion Avhich deprived him of the power of self-control. Thi'ir testimony, in substance, was that the defendant was insane, and that knowledge of right and wrong was not the test. The medical testimony was so strong that the court stopped the trial, and substantially directed the jury to acquit the defendant; !)ut Chief Justice Tin'dal instructed the jury that knowledge was the test. It iloes not appear iiow the defendant could be acquitted by that test.'^ "In E. V. Pate, tried in I80O, Dr. Conolly testitied : ' I have conversed with the prisoner since this transaction, and, in my opinion, he is a pei'sonof unsound iiiind. I am not aware that he suffers from any particular delusion, lie is well aware that he has done wrong, and regrets it.' Dr. Monro testilled: ' I have iiad five interviews with Mr. Pate since this transaction, and, from my own observation, I believe him to be of unsound mind. I agree with Dr. Conolly that he is not laboring uiuhr any specific delusion. I think he may have known v(ry well what he was doing, and have known that it was very wrong; but it fn(|uently happens with i)ersons of diseased mind that tiiey will i)erversely do what they know to be wrong.' Mr. Baron Aldkuson instructed the jury that knowledge was the test, " In It. V. Towiile;/, tried In 18(;;5, Dr. Winslow testified: ' I think tliat at this present moment he is a man of deranged intelh'ct. He was deranged on the 18th of November, ;ind I thought still nxn-e so last night when I saw him the second lime.' The witness was asked: 'If the present .state of mental derangement existed on ilie 21st of August, would it be likely to lead to the commission of the art then conimitted'f ' His answer was: ' Most undoubtedly. Assuming him to !i i\ (• been on the olst of .\ugust as he was on the 18th of November and yestcr- ' ay, I do not Ix'lieve that he was in a condition of mind to estimate, like a sane man, the nature of his act and his legal liability.' The witness further testified: ' He does not appear to have a sane opinion on a moral point. I have no doubt lie knows that these opinions of his are contrary to those generally entertained, and that If acted upon, they would subject him to punishment. I should think lie would know that killing a jicrson was contrary to law, and wrong in that sense. I ^hoild think that, from his saying he should be hanged, he knew he had done An. Keg. 1(540, I'art 2, p. 2t;'J L'l All. IJog. 1843, I'uit 2, pp. ;J5, ,199. 322 THE LEGAL TEST OF INSANITY. Notes. wroiiij;.' Dr. (iisboriic Ustidcd, 'that the prisoner's laiimiaiie implied that lie knew tliat wliat he had done was piinisiial)Ie, l)nt tliat he —the witness — hi-- lievcd lio wonld repeat tlie offence to-morrow.' Mr. Baron .M.vktin instrueteil tlie jury tinit linowledue was tlie test. ^ "In tliese cases, tlie t- stiniony of the exjierts negatived the idea that Ivnowledtje of riirht and wronjn is tlie test. And tlie admission of tlii.s ovi- dcnee coupled willi tlie rule jiiveii liy the court to the jury that k!iowled:,'c is tlie test, hrouiiht the law into conlliet witli itsilf. Kitlier tlie experts testi- lietl on a ((Uestion of law, or the courts testillid on a question of fact. Tin contlict was only rendered a little more palpable in Prople v. Huntington, tried in New York in IH.")!!. Kxperts testified, as tliey liavc long testified in England and elsewhere, that a man without delusion may ])e irresponsibli^ by reason of insanity, for an act wliich he knows to be a crime the consi - quences of Avliicli he understantls. One expert testified that ho defined in.sanity as a disease of the brain l)y which the freedom of the will is impaired, am] that almost all insane people know right from wrong. The knowledge test ot insanity, as laid down by the Knglish judges in their opinions given to the IIoiisc of Lords in what is called the ■\lcXr)i''s Cnxc,^ was read by counsel to tlir e\i)erts; the experts were din etly asked their opinion of that test, and tliey te^- tilied that tliey did not agree with the I-higiish judges on that subject. The .sanir knowledge test, a.s laid down by the Supreme Court of New York,- was read to one of the experts, and the same kind of testimony was rejieated. The coiirl instructed the jury that kiiowletlge w;is the test.' In Com. V. Ttdiii'i's, one expert testitlt'd that insane persons generally know tlu- ilistinction lietwei'n riuht and wrong. The opinioii of three experts was, thai the defeiulaiil was insane; tliat his reason had liccu overiiorne by dehision, uiiij an insane and irresistiiiie imimlse or paroxysm. In coming to that conclusiuii, it does not appear that they were guided by the knowledge test ; and, upon their testimony, it would seem, that, in their opinion, knowledge was not the tot. The court instructed tlie jury that knowledge was the test. In the applicatioi! of that test to the evidence, the court adopted the language of the experts in relation to delusion and impulse, intending apparently to use delusion ainl impulse, not as a substitute for t;,c knowledge test, or as a modification of ii. l)ut as an illustration of a process by whicli the knowledge of the wrongfuliic-v of tlie act might Ije suddenly removed. The jury were Hiial)le to understand tli. law in the form in which it was stated in the instructions, and, after consideriii:; the (|Uestion of .sanity some time, they came into court, and asked what dcifrci of insanity would amount t(. a justification: l)ut the court added nothing to the instrn(;tions previously given.* " It is the common practice for experts, under tlie oath of a witness, to inform the jury, in sul)stance, that knowledge is not tlie test, and for the judge, not, under the oath of a w itness, to inform the jury that knowledge is the test. And tiie situation is still more impressive, wlien the judge is forced l)y an impulse of liumanity, as lie often is, to sul)stantially advise the jury to acquit tlic accused on the testimony of the experts, in violation of the test asserted l)y liimself, > 1 C. & K. l.n. s Freeman r. rcople, 4 Deiiio, liS. ■^ Kei""' of I'"' •■'■'"• "f I'l'oplc r. limit ington, -ITil, 200, 2(il, .'C.;!, ■.'(iS, •.'C.'i, -.'TO, 271, 417. ' Itcport of tlie trial of Com. v. Rogers, 149- IOC, 276-27S, 281 ; ». c, 7 Metc. ."iOt/. IllllLIC illll>lii>(l tllilt 111 (• — IIk' wilnt'ss — !«•- •on Maktin iustnielcil I :ativ((l tlif iilcJi tli:it iliuission of tliis cvi- jury that kiiowled;;! her the experts testi- luestion of fact. Tht People V. Huntington, have long testiiiecl in may be irresponsiblr )e a crime the const - lat he tk'lhied insanity will is impaired, ami The knowletliic test of oils given to the Ilousr ead l)y counsel to tli ■ ;hat test, and they te-.- lat sulijeet. The saiih e\v Vori<,- was read t^ repealed. Tlie court )iis generally know tin hree experts was, tlial lorne by delusion, ami ing to that conclusion, test ; and, upon thuii ge was not the te-t. St. In the applicatio;; age of the experts i;i to use delusion ami a modiflcation of ji. of the wrongfuliic-- ble to understand tli' ml, after consideriii_ id asked what deui'ci added nothing to tin f a witness, to Infonii id for the judge, imt •dge is the test. Ami reed by an impulse of to acquit the accuse.! asserted by himself. trial of Com. v. Rogcn, s. c, 7 Mete. 500, NO TEST IN NEW lIAMl>81IIItK. ;i2;i Mr. Justice Doe's Opinion. The predicament is one which cannot be prolonged after it is realized. If tlie tests of insanity are matters of law, the practice of allowing experts to testify what they are, should be discontinued; if they are matters of fact, the judge should no longer testify without being sworn as a witness and showing himself (jualifled to testify as an expert. "To say that the expert testitles to the tests of mental disease as a fact, and the judge declares the test of criminal resjioiisibility as a rule of law, is only to state the dilemma in another form. Tor, if the alleged act of a defendant, was the act of liis mental disease, it was not, in 1 w, his act, and he is no more responsible for it than he would be if it had iieeii the act of his involuntary iii- toxiealioii, or of any other person using the defendant's hand against his utmost resistance; if the defendant's knowledge is the test of responsibility in one of these cases, it is the test in all of them. If he does know the act to be wrong, he is iqually irresponsible whether his will is overcome, and his hand used, by the irresistible power of his own mental disease, or by the irresistilile power of an- other person. When diisease is propelling uncontrollable power, the man is as innocent as the weajion, — tlie mental and morai elements are as gnillless as tin' material. If his mental, moral, and bodily strength is siilijugated and pressed to .111 involuntary service, it is immaterial whether it is done by his disease, or by iiiiother man, or a brute or any pliysieal force of art or nature set in operation without any fault on his part. If a man, knowing the difference Ijetwceii right ,111(1 wrong, but deprived, by either of those ageiiL'ies, of the power to choose be- tween them, is punished, he is punished for his inaliility to make the choice — is punished for incapacity; and that is the very thing for which the law says lieslmll not be punished. He might as well bo punished for an incapacity to distinguish right from wrong, as for an incapaeity to resist a mental di.sease which forces upon him its choice of the wrong. Whether it is a possible condition in nature, for a man knowing the wrongfulness of an act, to lie rendered, liy nii'iital disease, incapable of choosing not to do it and of not doing it, — and whether a defend- ant, in a particular instance, has been thus incapacitated, — are o))viou.sly ques- tions of fact. But, whether they are questions of fiU't ov of law, when an expert testitles that there may be such a condition, and, that, upon i)ersonal examina- tion, he thinks the defendant is or was in such a condition, that his disease has overcome or suspended, or temporarily or permanently oiiliterated his capacity of choosing between a known right and a known wrong, and the judge says tli;it knowledge is the test of cap.'ieity., the judge t1;Uly contradicts the exjfC r! . Kither the expert testifies to law, or the judge testitles to fact. " From this dilemina, the authorities afford no t'seape. "The whole dilliculty is, that courts have undertaken to declare that to I)i- law which is a matter of fact. The principles of the law were maintained at the trial of the present case, when, experts having testified as usui'.l that neitlu-r knowledge nor delusion is the test, the court instructed the jury that all tests of mental disease are purely matters of fact, and that if the homicide was the offspring or product of mental disease in the defendant, he was not guilty by reason of in.sanitv." One year later, in a very exhaustive judmneiit, the doctrine of this case wa.s aiTirmed.' ' State V. Jones, .■>(• .N. 11. 3(>'.i; ii Am. Dec. 'J4-.' (IsTl). 324 THE LEGAL TEST OF INSANITY Notes. Till' New Iliimpsliiro doctrine Is followed in Illinois' and Indiana.^ §28. Insane Delusions. — A person uctins under an insane delusion is pro- tected in disc he would have lieen justified in liis act luid tliat insane delusion l)een true.' This was clearly laid down by tlie judges in their answers in Mc- Nnghteii's Caxc* Jud,!j;e Cox's learned cliargc in Gititeau^s Case has "gone a great way to linally establisliing the rule that delusion, to constitute a defence, must be oljjcctive as distinguislied from suljjective. Tliey must lie delusions of tlie senses, or sucli as relate to facts or ol)jects, not mere Avrong notions or im- pressions; and tlie al)crration in such case must be mental, not moral, and must affect the intellect of the Individual. It is not enough that tlieyshow a di.sea.sed or depraved state of mind, or an aberration of the moral feelings, tlie sense of riglit and wrong continuing to exist, altliough it may be in a perverted condition. To enable them to be set up as a defence to an indictment for a crime, they must go to such crime objectively; i.e., they must Involve an hone.st mistake as to the object at Avliicli tlie crime is directed.* The distinction before us may be illus- trated by LcvcVs Casn, wliieli has never l)een questioned, and which has been sanctioned by tlic most rigid of tlio common-law jurists, where it was held a sufficient defence to an indietment for nuirder, tliat the mortal blow was strucl< by tlie defendant under tiie delusion that the deceased was a robl)er, who had entered the house." It would have been otherwise had the delusion been tliat the victim was a political opponent whom It was politic to rL'inove. To this effect Is the opinion of Chief Justice Shaw, in 1844, In Com. v. Rofjors: ' ' Mo- nomania,' said this eminent judge, ' may operate as an excu.se for criminal act,' when ' the delusion is such that the person under its influence has a real and linn belief of some fact, not true in itself, but wliich, if it were true, would excuse his act; as wliere the belief Is that tlie party killed liad an immediate design upon his life, and under that belief tlie insane man kills in supposed self-defence. A common instance is whore, lie fully believes that the act he is doing is done by the immediate command of God, and he acts under the delusive but sincere belief that what he is doing is by the command of a superior poioer, which supersedes all hu- man laws and the laws of nature.''^ To make such a delusion ., defence, how- ever, tliere must be no consciousness of tlie wrongfulness of the act to which the delusion prompts. If there be reason enough to dispel the delusion; if the de- fendant ol)stiiiately refuses, under such circumstances, to listen to arguments by which the delusion could be dispelled; if, on the contrary, he cherishes such de- lusion, and makes it the pretext of wrongs to others, — then he is responsible for such wrong. Thus, in a case of homicide in Delaware, in 1851, the deceased iieing tlie defendant's Avife, tlie defence was delusion consisting in a l^elief that his wife was untrue to him, tliat liis chihlren were begotten ))y his wife's inter- course with another, and tliat sundry conjurations were being practised upon hiin, and the evidence showed tliat he was a shrewd and wealthy Ijusiness man. 1 llopps V. reople, 31 111. Sa'j. s Bradley f. State, 31 Intl. 492 (1809) ; Ste- vens V. State, 31 Ind. 483 (18(;y). 3 Fain v. Com. 7S Ky. 183 (1879) ; Com. r. Rogers, 7 Mete. .500 (1844) ; Cunningliam r. State, SO Miss. 269 (1879) ; State v. Mewlicrter, 46 Iowa, 88 (1877) ; Boswell t'. State, 63 Ala. 307 (1876). < Ante, p. 150. 6 See It. V. I5rrt<)n,3 F. & F. 772; R. v. Townley, 3 F. & F. 8:1!). " l-evet's Case, Cro. Car. 438. ' 7 Mete. 500. INSANE DELUSIONS. 325 United States v. Liuvrence. The court Carded the jury that If a person, otherwise rational, commit a homi- n.le, thunjjh affected l,y delusions on suiijects with which the act is connected he Is crin.inally responsible, If he were capable of the perception of consclous-' ness of rliiht an.l wron- as applied to the act, and had the ability throu-di thut rr t^: i^^::; hir^ ;^^ -' -'-' ^' ^"^ ^^"^ ^^^-'^ '^^ --•^^ ^^^ ^^^^^^^^■ In United States v. Lawrence,^ the prisoner was indicted for shootinjr at General Onlhrt'rl ;T, TI'T.:! "" ''"'^"' states, with a pistol With intent to k i On the trial the fact that the prisoner was at the time under a n.ental delusion supposing hnnself to be King of England, and of the United States, as an r.' PC.C age to England, and that President Jackson stood in his way in the enjo - ment of his right, was proved. The jury found him not guilty, by reason W » State V. Windsor, 5 Harr. 512. » From Dr. Wharton's note in the Federal Reporter to the report of Guiteau's Case. ' 4 Cranch C. C. 5 (1835), .v^^ ?5».r,. IMAGE EVALUATION TEST TARGET (MT-3) k A ^/ I :a :/^ 1.0 I.I l^m 12.5 ISO "^^ hhh " ••» "2.0 IL25 i 1.4 1.6 Hiotographic Sciences Corporation 23 WIST MAIN STREET WEBSTER, N.Y. MSeO (716) 872-4503 •N? ,\ iV \\ >A 6^ 'i^^^ I ,.v CHAPTER II. THE BURDEN OF PROOF OF INSANITY. BURDEN OF PROOF UN PRISONER- TEST OF INSANITY. State v. Puatt. [1 Iloust. Cr. Cas. 249.] la the Delaware Court of Oyer and Terminer, May Term, 1807. Statk i\ Danby. [Id. Hi7.] In the Delaware Court of Oyer and Terminer, November, 1804. Before IIou. Edwahd W. Gilpi.v, C. J. 1 Particular Biirht and Wronp' T«.i.f rim .^„. „« .• '>i a person L a crin.i.^^.:^tlv h :^ . 'S^ "I';^:? r'' "' '"■"'""^"^'"'>' .he time and as touching, that act .ane oH a ;' Met L.ffl'""?' '■^' "'? .•i.y at the time of com.nittin.^it, to distingui.r Vetwe ' t he .iZ T". '""" """■"' .-ticuiar ac. an., to kno. that it wu« wn^K. he ::^::;u:::x:^S::::i;:z'::' '"" ' '"-:^^^^CSnSnn:u;;^^^ ^ ■— ^ The prisoner Joseph W. Pratt, was indicted for the uinrder in W.lmn^gton, Delaware, on April 29, 1807, of Joshua Pnsey Sm it whom he suspected of criminal intimacy with his wife. Th not wl ^ther he was insane on any subject whatever, but whether he w ;i-> insane in respect to the particular act charged against him. If it were otherwise, there would be a total exemption from punishment for crime committed under any species of partial insanity, notwithstanding tlie fact that such insanity might not, in any degree, have impaired tlie STATE V. rUATT. 329 Tests of Iiisaiiitv. borne and tl tiie V((l- y without regard ti' e time Ik- will ami nsible lor illed par- or insane stence of they havi- condition a nanu'. , but that > exempt •s a qui's- end u[)on ' its con- id above ime, was insanity. Iwaj's or es of it, tU', or iL order to ntrolling n a real )rive the III. The in sliarp !t of the onehiiig ence to islion i> !• lie WM-. it were r crime \ug the red the mental capacity of tl»e accused, to distinguish between right and wrong ill respect to the particular act charged as constituting his crime. If tlie prisoner had sulHcient capacity at the time to distinguish between the rigiit and wrong of that particular act, if he had sufficient capacity to know that that act was wrong, he is ivsponsil)le for it, and for all its fatal consequences. If, iiowever, you shall be satisfied from the evidence before you that at the time when the mortal blow was given, the prisoner luul not a sufficient degree of reason to enable him to distinguish between the right and wrong of that act ; if, in other words, his reason was at tiie time so overborne or obliterated as to render him incapable of knowing or com- prehending that that act was wrong, he is not criminally responsible for it, however fatal the result may have been. But if at the time the act was committed, he possessed sufficient mental capacity to compreliend the nature or character of the act and its probable consequence ; or if he understood the nature of the act he was doing, and had reason suffi- cient to know that it was wrong to do it, he is legally and justly responsible for such act, notwithstanding he may at the time have been liiboring in some degiee under partial insanity. For after all has been said that can be said in elucidation of the subjcv-i; we are compelled to return to the plain tud simple (juestion whether the prisoner, at the time he committed the act, had sutficient mental capacity to distingiiisli between right and wrong in respect to that act. If he had, he is responsible; if he had not, he is not responsible. Now, in this case, the criminal act charged against the prisoner is the felonious killing of Joshua Pusey Smith with exi)ress malice aforethought, to which charge, as we have seen, he sets up the defence of iiisanit}', and claims at 3'our hands an acquittal on this ground. I* Ije has sustained this plea by satisfactory evidence, he siiould be acqui.,ted ; if he has failed to estab- lish the fact of insanity by satisfactory proof, he ought not to be per- mitted to escape punishment on this ground; and if he killed the deceased, he should be convicted. And now, gentlemen, before taking leave ^'together of the question of insanit}-, it is my further duty to state to you, at least brietly, certain primary and cardinal rules or tests, by which, under your oaths, you nnist be guided in order to arrive at a proper solution of this question. The first great rule on this subject is this : Kvery man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes until the contrary be proved to the satisfaction of the jury. This rule is fundamental, and of universal application ; it meets you at the very commencement of your incpiiries, and you must carry ;>o() THE HLRDEN OF PROOF OF INSANITY. Statu V. Pratt. it with you in all your . the prisonei nuist establish the fact of insanity l)y distinct evidence, and prove it b yond a reasonable doubt; otherwise the presumption of sanity or soundness of mind will remain unrelmtted and in full force. Exhibitions of mere eccentricity of mi:id, manner or 'onduct, mere passionate jealousy, or vehement suspicion of adulter} , aowever well founded, or ^bowing that the i)risoner was at times alllicted with a sort of mental strabismus, or scpiinting of the mind, will not be sullicient to excuse him from the consecpiences cif his criminal acts. The law requii-es more tlian this ; the proof must go beyond this ; the proof nuist establish the fact, that the prisoner, at tiie time he committed the act of killing, was incapable of distinguishing between right and wrong in respect to that fatal act. Having thus stated to you tiie general law of felonious homicide, as well as the rules and principles of law applicable to the grounds of defence relied on by the prisoner, I now reverse the order in which I have presented these several matters, and charge you in conclusion as follows : — Fii'tif. If you shall be satisfied from the evidence, beyond a reasonable doubt, that the prisoner, at the time he struck the mortal blow was lal)orinf>l Statu V. l)aiil)y. uianslauglitci' timlor oi.r statute, ami your verdict sluould be guilt}' of iiiansiaughter in killing the said Joshua P. Smitii, wiiilst in the act of mltiltery witii the prisoner's wife. Thirdly. But if you shall not he satisfied from tlie evidence tiiat the prisoner found tile deceased in the act of adultery with iiis wife, and liien and there, in the first transport of passion, instantly struck the mortal hlow, l)ut that, on the contrary, he killed the deceased on tlie srroiiiid of previous acts of adidtery, then we say to 3'ou, tliat he is guilty (if nuirder, either in tlie first or second degree*, and in wiiidi degree you inii-t determine from tlie evidence. And in order to aid you in passing on tliis question, I repeat to you that ivlierever there exists a design or intention deliljerately formed in tlie mind of the accused to take life, and death ensues from his act, it is iiuirder with express malice, and therefore, murder in the first degiee. iUit wliere there exists no design or intention to take life, liut death results from an unlawfid act of violence on the part of the accused, and in the absence of adeouate or sufficient provocation, it is murder by or witli implied malice, and consequently murder in the second degree. Verdict — " Not guiltif by reason of innanity." Idence lien it lie act )rt of tisfied imith. ty of Statk v. Dan by.' The prisoner, John Danby, wasindicteil for murder in the first degree, in killing Joim Barnett, (iliaa John Burnett, in Wilmington, Delaware, on October 8, 18(U. The defence was insanity. JA'iojv, Attorney-General for the State; D. M. Bates {Gordon with him), for the prisoner. The Court, Gili'in, C. J., charged the Jury. After recapitulating the facts proved and not disputed in the case, and itinarking that if there were no other matters to be noticed in the case, tlu'y would constitute murder with express malice aforethought, and of tlie llrst degree under the statute ; but, as this was denied upon the irroiind of insanity on the part of the prisoner, he would ikjw proceed ti) speak of that defence. In former times, indeed, as late as the early part of the last century, it was considered by the courts that insanit}'. in order to protect a person from responsibility for crime, must be total in its character, either manifesting itself in wild, ungovernable, irra- liiMiul and incongruous actions, or in stupid and passive imbecility. In ' See ante, p. 327. 332 THE BUUDEN OF I'UOOF OF INSANITY. Stiiti! r. Diiiiby, Other words, it was held that to ])c insane, so as to protect the party, he must liave no more reason than a brute, an infant, or a wild beast. It does not seem to have entered into tlie conceptions of men at tliat early day that a person might generally behave in a perfectly sensible maiuu r and yet be insane upon some one or more sulgects. They do not setiu to have been able to comprehend that he might l)e capable of reasoning well or learnedly on most subjects, whilst in respect to some one subject he might be utterly deranged. Such was the old rule of law — a rule severe and cruel in the extreme. And I am happy to say to you, that, in consequence of the improvements which ha\e since been made in medical science and jurisprudence, more enlightened views as to the effect of disease upon the human mind have, at length, pi-evailed uptjii men; and th:it under the influence of a clearer, a wiser, and more benevolent appreciation of Christian obligation, the sharp severity and inhumanity of this ancient doctrine has gradually given way, and thai now, at this day, the plea of insanity stands upon the solid ground of humanit}', reason, and justice. A man may be totally and permanently insane, and, in such case, all his acts are excused — he is incapable of committing crime. This is called, generally, insanity. Or he may be totally, but temporarily, in- sane — that is, altogether insane on all subjects for a time, and insane to such a high degree that, for the time being, the reason, the con- science, the will, and judgment are utterly overborne, overwhelmed, and obliterated, so that an act done during the continuance of the malady cannot be said to be a voluntary act, or the act of a free agent, but the mere act of the l)ody without the consent or concurrence of a control- ling mind, being the result rather of an irresistible and uncontrollable impulse. For acts done during the existence of such a state of insanity the accused is not criminally responsible. Or a man may be but pai- tially insane, and where this is the case, it is called monomania, or insane delusion, and this insane delusion consists in a belief of the existence of certain imaginary things as facts, but which are not facts, and, thereiore, have no existence, and which no I'casonable or rational person could or would believe. Now, whether such paitial insanity can be held sufficient to exempt a person from responsibility for criminal acts will depend upon the peculiar circumstances of each particular case. The nature, the force, and effect of the delusion, the degree of its in- tensity and controlling power, and whether the act done was committed under the direct and irresistible influence of such insane delusion, are matters of vital importance in determining the question of responsibil- ity. It is not every wild and frantic humor of a man, or strange and TEST OF IXSAXITY. 333 Stiitc V. Diiuby. 2 party. Ii,. beast. It that t'aiiy )le maiiiu r y not setin reasoning ne subject V — a rule you, that, I made in as to tiu' iled upon and nioiv verity and and tiiat ground of 1 case, all This is rarlly, in- lul insane the con- med, and e malady ;, but till' . control- itroUahlc insanity but pur- lania, or f of the ot facts, rational nityciiii criuiinal lar case. f its in- nraittcd ion, are onsibil- ige and unaccountable language or conduct that will show liim to be laboring under insanity. The law retiuires souu'thiiig more than this. Nor is partial insanity or insane delusion always, or necessarily, an excuse for crime. On the contrary, it can otdy be so cousidered where it utterly di'prives the party of his reason in regard to the act charged as criminal. The (luestion is not whether he was insane upon any subject whatever but whether he was insane in respect to the particular act allegeatisfactory conclusion of yom labors. The (irst rule, gentlemen, is this: Everyman is presumed toln sane, and to possess a sutlicient degree of reason to be responsiI)le for iiis crimes, until the contrary be proved to the satisfaction of the jiir\ Tins rule is primary ami fundamental. It meets and challenges yom attention at the very threshold of your incjuirii-s. The prisoner at tin I)ar, therefore, is to be considered by you to be a sane man and eapalil (tf committing crimes until the contrary be clearly and satisfactoril\ established b}-^ the evidence. You will, therefore, gentlemen, take tlii-^ rule with you as the very ground upon which j'ou must stand in prose- cuting yoiu' inquiries upon this (luestion. Secondly, insanity' being mut- ter of defence, the onus or l)urden of showing or proving it lies on tlie prisoner. It is true such proof may sometimes arise out of the evidener offered bv the State, but if it does not so arise it must be made on; from distinct evidence offered on the |)art of the prisoner ; in either ca^i it niusl be clearly sufflcieut to prove the fact of insanity, otherwise tie presumption of sanitv, or soundness of mind, will stand unrebutted ami in full force. But to establish a defence on this ground, it must be clearly proved that at the time of committing the act of killing, the pris- oner was laboring under such a defect of reason from disease of mind, as not to know the nature and quality of the act he was then doing, oi if he did know it, that he did not know he was doing what was wrony. If. therefore, this condition of insanity has been clearly and satisfae- torily establl^■hed by the evidence, 3'ou ought to accjuit the prisoner. If, on the cortrary, he has failed to establish clearl}' and satisfactorily such a condition of insanity as I have described, it will be your duty, however painful, to return a verdict of guilty in nuinner and form as lie stands indicted. I say guilty in ni'iuner and form as he stands indicteil, because if guilty at all, he is .'guilty of murder in the first degree. You thus perceive, gentlemen, that the prisoner's capacity or want (^f capacity at the time to comprehend the difference between right aiul wrong in respect to the very act with which he stands charged, is the IIUKDEN OF riiOOF 0\ IMUSONKK. 33r) Mtate r. S|K'iut. r. itlire of til,. Lhe leurniii- 'arniHsiiu'iit I'ly »ri.".c ii, tknow tli;i; I feel voiy testitnoiiy. 't to luiivt n of yon I lined to In 3iisil)le for f the jiin Hfres yniii iier tit tilt 1(1 capalij. sfactorilv , take tlii,-, in pif).si-- >eingjuat- ies on the evideiitv msifle on; itlicrc:iM iwiso thr itted and must III' tlie pri>- of mind, loing, (I! wrony. satisfac- •risoniT. 'actoriiy u" duty, in as lie idicted, want of lit and , is till' tost by wliicli must he lU'tennined the (juestion of his criminal resi)oii- sil»ility. I have now lluishcd what I iiad to say on the law of tiiis case. It is the duty of tiic court to explain the law to tiie jury. I have endeavored to discharge this duty according to my l.est judgment and most coiisei- t-ntious convictions. But your duty, gentlemen, which c(.minence(l with mine, is not yet ended; the most important part of liiis duty yet ri'inains to be done ; and I pray God that he will not only impress your hearts with a due sense of the solemn responsibility which now rests ui)on you, but that he will also bo pleased to enlighten your minds by imparting to you some portion of his own great wisdom, so that yoii may be enaliled to arrive at the very truth and right of this cause, and a true verdict give according to the evidence. Verdict — NotguUt}ih;i reason of insanity. BURDEN OF PROOF 0\ PRISONER -TEST -CONTINUANCE OF INSAN- ITY—DECLARATIONS OF DECEASED. State ?*. Spencer. [21 N. J. (L.) !;»(;.] In the Supreme Court of Neir Jersey, 1840. Before IIounhlowkk, J. ). The Test of Insanity is whether the acciisecl at the time of tlie eoinmi^.-iioii of tlie crime was conscious he was doing what lie oiiglit not to dn. 2. The Burden of Proof is on the accused. 3. The Continuance of Insanity is presumed unle,-s a nicid interval i- .shown. 1- Declarations of the deceased are no evidence of the insanity of the iirisoner. IloKNni.owKK. J., charging the jury. I MOW come to that part of the cause which constitutes the main ground of defence in this case, namely: Insanity. This question in the nature of things, is the first one for you to consider. For it is of no consequence what circumstances attended the homicide, or in what manner the crime is varied in the eye of the law by those circumstances, if the i)risoner was insane at the time of committing the deed. If he was insane, he is not amenable to the law at all for what he did. A person who is out of his mind, and docs not know at the time that what 33r, TIIK miUDKN OF rilOOF OF INSANITY. State V. Spencer. he is»loiii<; is wronj?, is not lU'couiituhlc for the nots coiuinitted l»y hiin while ill that Mtoto. If he coiniiiit ii hoinicitle wiiilc in tliiil stiitc, il is not muH'ssjiry to loolv into tlie hiw of homicide at Jill to asctTtiiin the distiiuitions which tin; I;iw makes l)etwecii diflcront homicides; for sncli a person is not nndcr the law — lie is not amenable to it. The law is till to be set ont of the (|n«'stion as to him. lie is, in one sense, an oiil- law, or ratlier, he is ont of the law, and on<;ht to be seclnded from society, in order tliat those who are nnder the protection of the hiw, m.ay not l)e injured by him. Was then the prisoner at the bar insane at the t«me of committinjr the homicide? It is dililctilt to dellne, in set terms, what insanity is. We all have u notion of what it is, and there is a great variety of i)hrasc8 by wiiich we arc used to designate it. We say of a man who is insane, and has com- mitted some atrocious act while in that state, " he was out of his head," " he had not his senses at the time," '' his mind was disordered," " he was crazy when he did it," " he did not know at the time what ho was about," aiiane. if tliere is Mie least shadow of doubt on the sul)Ject, any more than I would say they iiuist aceen atllicted with such insanity as would render him an unac- I'ountable being, and exonerate him from punishment, is not sufficient, if it be also proven, or comes out in the evidence that he has at any lime since heen so far restored to his right mind as to be capable of moral action and of discerning between right and wrong. Otherwise, a man who iiad once been out of his right mind, might ever afterwards cDinmit any crimes he chose without being held responsible for it. If it were true, that insanity never left a man, after once clouding his mind, then it would be enough to exculpate him to prove that he had once liLon insane. But it often occurs tluitraen have turns, or " spells " of insanity, and then enjoy intervals of entire soundness of mind. Now 22 338 THE BURDEN OF I'UOOF OF INSANITY. State V. Spencer. althougli tliey would be excusable for what they clid in the paroxysm of madness, they are by no means excusab! ^ for what the}- do when the-y have their senses. The question for you to determine is, not whether the piisoner was ever insane in the former part of his life ; but wiiether he was insane at the time he committed the deed for wliich he is now on trial. His having Ijeen insane once, or several times before, may ren- der it more probable that he was insane at tlie time of the homicide, if there is any direct proof that he was insane at the time. But stan ling by itself it proves nothing where tlie State shows a subsequent return to reason. Evidence of former attacivs of insanity amounts to about this : It does not show that the prisoner was insane at the time of tlie homi- cide ; but if there is any independent evidence that he was so, the former insanity increases the probability. The same remarks may be made with regard to the evidence of insanity in liis family. Standing alone, it amounts to nothing. It is no evidence that the prisoner was insane at the time of the homicide. But if there is some independent evidence that he was insane at the time of the homicide, it increases the proba- bility that he may have been. But, standing alone, it is the weakest kind of evidence, and but little consideration ought to be given to it. It is undoubtedly true that some families are more subject to insanity than others. But that is no reason Avhy the sane members of the famil}' should be free from responsibility for their own misdeeds. Nor is it any very strong evidence tliat tlie members of the family are tainted with the like disorder. I should feel hurt to suppose that my neighbors entertained a suspicion that my mind was disordered, merely because I had an unfortunate father or brother who was subject to turns of insan- ity. So feeble, indeed, is the influence which testimony of this kind ought to have, that many respectable jurists decide against its admis- sibility at all. But at all events, it can only have the effect of adding to tlie possibility that the prisoner mav have been insane, wlien ho committed the homicide; standing alone, it is no proof whatever that he was. I again repeat what you are ahvays to bear in mind, that this ground of defence which we have been considering can be of no avail to the prisoner, unless from the evidence you are convinced beyond a reasonable doubt that the prisoner was insane at the time of the homi- cide. In the third place, as to the degree of insanity under wliich the pris- oner must be proven to have been laboring at the time of the homicide, in order to his exculpation. If you are satisfied beyond a reasonable doubt that he was insane, the next question for you to consider will he. whether his insanity was such as to render him incapable of committing DEGIIEE OF INSANITY WHICH EXCULPATES. 330 Insane Delnsions. crime. For there are many kinds of insanity, aneen tcsti- f tll.'lt lie acter iind s. What the proof e Jury, to judge pinion, it the hoinl- he ought but if, in le doubt, vcstigatc must 1)0 mnot bi' aAV upon ivhieh, if capital motives eem tiie 3'ou are nvincing ly should his ilo- ipreme Court for revision several points arising out of tlie charges given by him, as novel and difflcult. (ioldthwaite for the prisoner. Lindnai/, Attorney-General, contra. OUMONI), J, (Omitting an immaterial point.) The remaining questicjn is one of much greater magnitude, and of some difHcuIty. In civil cases, where there is conflicting testimony as to the existence of any fact necessary to be established by either party, the jury are under the necessity of weighing the evidence, and of de- ciding in favor of that party on whose side the evidence predominates. But in criminal cases, the humanity of our law requires that the guilt of the accused ' aould be fully proved. It is not sulticient that the weight of evidence points to his guilt. The jury must be satisfied be- yond a reasonable doubt of his guilt, or he must be acquitted. It is not meant here that the evidence, on which to found a verdict in a crim- inal case, should be so conclusive as to exclude the presumption, that notwithstanding the evidence, the accused might be innocent, but only that it should be of a character to raise that high degree of probability on which all human action depends. In what respect, then, does the question of insanity, when set up as an excuse for an act which would otherwise be a crime, differ from any other fact which a jury may be called on to decide in a criminal case? As insanity excuses the commission of crime, on the ground that the actor is not an accountable being, it is obvious that society has a deep interest in providing the means of preventing its being assumed as a cover for the commission of crime, and as this is more easily simulated, and depends more on the volition of the actor himself, than any other defence, which would excuse the comnaission of an act otherwise crim- inal, the interest of the public demands that it should be established b)' more conclusive proof. Thus, in ArnokVs Case,^ who was indicted for •shooting at Lord Onslow, and who set up the plea of insanity, Tracy, justice, observed that the defence of insanity must be clearly made out ; that it is not every idle and frantic humor of a man, or something un- iiccountable in his actions, which will show him to be such a madman as to exempt him from punishment ; but that where a man is totally de- prived of his understanding and memory, and does not know what he is •loing, any more than an infant, a brute, or a wild beast, he will be liruperly exempted from punishment. In BelUngham's Case, who was ' 16 How. St. Tr. G'X). ;U8 Tlir, ItritDKN OK I'UOOF OF INSANITY. Stall- ('. Miirlfi- indicled for tlio muni' r of Mr. l't'rciv;il, Manskiki.k, C. J., in roferciicc to the |)K'!i of iii.^aiiity ri'lii'il on for tin- pristMU'r, .said: " Tliiit in onlti to .•support such !i (It'fi'nrc, it ou;j[lit to l»o provi'«l l»y the most (lisliiul and nn(iiiestion:il)lo I'videncc tlmt tlii' prisoner was incMpahle of jnil<;iiij lu'VA'cn rii I'lit nature .'xeusi' for 1)0 ostnl)- lery other liematic.'tl t the jury 10 roa.soii- hy these loy entcr- hoy nni.st principles ioncr Av;is justice of i"y, every ' its pro- u called defence oof, and le doubt be ol> jfiisal to 10 cause await !i by due the Cir- brother he only i to the ed. It ained a reasonable doubt as to the prisoner's sanity. The law requires insanity, when alleged us an excuse for the conimission of jin offence, to be uuule nut by proof, us full und satisfuctory us is recpiired to establish tlu^ ex- istence of any other fact. A reasonal)le doubt whether the accused uassane, would not authorize his ac(iuittal — there must Ih; a prepon- derance of proof to show insanity to ^"arrant a verdict of not guilty for that cause. Hut, in my appreliension, the error consists in the charge; given to the jury. They are informed that if tUv.y entertain a reasonabFe doubt as lo tlie prisoner's insanity, it would be their duty to regard him as sane, and if the facts estal)lished a case of murder, they should (ind him -iiilty. Now, it was entirely possible for the jury to have entertained a reasonable doubt of his insanity, although the weight of evidence was so strong as to have led their minds to the conclusion that such was the l)risoner's condition. This charge then, must have induced the jury to t)oIieve that the pioof of insanity should have been conclusive and irre- sistible. In this point of view they may have been misled, or have re- quired proof too stringent. Hence, I am in favor of reversiut' the judgment. ° INSANITY MUST BE PROVED BEYOND REASONABLE DOUBT-INSAN- ITY AFTER VERDICT AND BEFORE SENTENCE - OPINIONS OF WITNESSES. i^'iwi^io yjn State v. Brinyea. [5 Ala. 241.] In the Supreme Court of Alabama, January, 1843. Hon. Henry W. Com.iek, Chief Justice. " Hkxky Goi.dtuwaitk, " John J. Okmond, \ Judges. 1. Burden of proof- Insanity must be proved beyond reasonable doubt. -The (lelence of insanity must be proved beyond a reasonable doubt. 2. Insanity after verdict but before sentence.- If after verdict, but before sentence, a prisoner becomes insane, it is good ground f..r staying the sentence; aMt'.s who U'stilli'd to acts* and declarations of the prisonci tending to prove insanity ; whereupon his counsel proposed to ask tlir witnesses for their opinions as to the sanity or insanity of the prisoner, as deduced from the acts or declarations testified to by them. Tin- question was excluded by the court, the witnesses not being of tlic medical profession. The court charged the jury that they must believe the offence charged in the indictment to have been committed ; that if they entertained !i reasonable doubt as to the commission of the act, the prisoner was entitled to the benefit of it ; but the commission of the act being proved, and the prisoner relying on insanity as an excuse, the rule was reversed. In that event the prisoner was bound to make out by testimony l)eyoiul all reasonable doubt that he was insane at the time the act was com- mitted, l)y proof clear, strong, and convincing; and if ui)on the testi- mony the jury should entertain no reasonable doubt of the defendant's sanity, they should find him guilty. When the i)risoner was called before the court for sentence, after a verdict of guilty against him, the counsel for the prisoner suggested that he was at that time of unsound mind and moved an arrest of judgment on that ground. The suggestion was supported by aflfldavits, conducing to prove its truth, but the court declined to consider the motion, and reserved the questions as novel and difficult. The Aitorneij-General for the State ; Mays, for the prisoner. GoLDTiiWAiTE, J. — There is a considerable diversity of decision upon the point whether a witness, not being a physician, can properly be allowed to give his opinion in evidence when the m.atter to be ascer- tained is the insanity of an individual. The cases on this subject arc collected in Cowen and Hill's notes to Phillips on Evidence.* Although the greater number of these recognize the rule as ordinarily understood and as declared by the Circuit Court, yet there are sonic which seem to sustain the position insisted for by the prisoner's coun- sel. Our intention is not to review them, as it would lead us into unnecessary prolixity, and as the principle applicable to this case can l>e ascertained without aid from them. When it is necessary to i)rove to a jury that one is insane, this is done by showing a series of actions or declarations which evince an aberration of mind ; the conclusion of insanity is to be drawn by the jury, and must be deduced from the actions or declarations of which 759, n 529. INHANITV AFTKIt VKKDICT. 3.^1 Bnrdfii (if I'l f. ftiid intro- 10 prisoiici tu ask tile * prisoiui, ictn. Tili- ng of tllc 3e charged •rtaiiu'd a ioner was ig proved, reversed, ly beyond was com- the testi- ifendaut's i, after a esterl that udgmeiit oiuluciiiij ion, and ion upon l^erly he )e ascei- )ject are rdinarily e some s couii- us into e can be this is ince an by the which evidence i.s jjiveii. Different indivlcUuils somctiines draw different coii- iltisions from tiie same act ; and if tlieir upinions were acbnissiltle os evidence, it migiit often happen tiiat different opinions formed from tlie siuuo conduct would go to tlie jury, having no otlier temleiicy than tu embarrass and mislead them. As the concUision of the jury i>as to lie formed from the acts and declarations before them as evidence, it is entirely immaterial what opinions are foruied by otlurs, and for this reason such opinions in this case were properly excluded from the jiny. It is proper to reuiark here that we have not entered into the considera- tion of exceptions to the general rule, arising out of some peculiar relation or connection of the witness to the person whose sanity is (inestioned, becauae nothing but the general question is non presented. :.'. If a person after verdict and before sentence becomes insane, it certainly is a good reason to stay the sentence, but that is not this case. We do not understand that any change in the condition of the prisoner was shown to have been taken place since the empanelling of the jury. It was then in effect, requiring the court to arrest or stay the judgment for the same reason which had been unsuccessfully urged before the jury in defence of the criminal charge. We think the Circuit Court properly refused to entertain the motion. ;.}. The objection to the charge cannot avail the prisoner, as it is in strict accordance with Marlefs Case.^ The counsel for the prisoner aiiriU'S that the charge was that a different degree of proof was necessary to make out a defence than was sulHcicnt to produce a con- viction; but we do not so understand it. The court in substance declares that it was incumbent on the State to make out the prisoner's ;xiult beyond all reasonable doubt, and if the jury doubted the evidence as to the commission of the act, the prisoner was entitled to the benefit of that doubt ; but if the act was incontestably i)roved, and the prisoner rclit'd on insanity to excuse himself, the case was reversed. The prisoner then was bound to make out by testimony beyond all reasonable doubt that he was insane at the time the act was committed, by proof strong, clear and convincing; but if upon testimony the jury should entertain no reasonable doubt of the defendant's sanity, they should find him guilty. It is true we do not very clearly comprehend what was intended by the court when it said the case was reversed, if insanity was relied on as a defence ; but whatever it was it certainly was not intended to instruct the jury that they should convict the prisoner if they entertained doubts 1 2 Ala. 43. 352 THE BURDEX OF PHOOF OF INSANITY. Boswtll V. State. of his sanity. Tlic charge, it is tine, is in tiie negative, that if the jury iiad no reasonable doubt of the sanity of the prisoner he should be con- victed. This as it seems to us is precisely equivalent to a charge th;it if a reasonable doubt of his sanity was entertained the jury shouM acquit. If the cliarge was objectionable on account of its obscurity or so considered, the prisoner's counsel should htivc requested the proiicr explanation ; if refused or not given as asked for, that tendency to mis- lead would have been made apparent and under the decision in Marki-'n Case, the judgmeut would have been reversed. Let the judgment be ajp'^med. BURDEN OF PROOF — INSANE DELUSION, WHEN A DEFENCE- LESSNESS AND RESTLESSNESS — MORAL INSANITY. BoswELL V, State. ■SLEEP- [(13 Ala. 307.] In the Supreme Court of Alabama, December Term, 1879. Hon. RonKRT C. Bkickell, Chief Justice. " Amos R. Manmnu, '< Gk Mos R. Manmnu, ) . . . X , ,,, „ > Associate Judges. KOKCiK W. SroNK, ) 1. Sleeplessness and Nervous Restlessness aro relevant on the question of insanity vel noil. 2. Insane Delusion a Protection, When. — An insane delusion relieves a person from responsibility when and only when tlie fact or state of facts which arc believed in under the insane delusion would, if actually existing, liave justified the act. 3. Horal Insanity, which consists of irresistible impulse, co-existing with mental sanity, should not be recognised by the law. 4. The Burden of Proof is on the prisoner to show ir.sanity, and a reasonable doubt of sanity will not autliorize an ac." o'clock ill ore, where e with two ches long. leather. ' ' it the jiris- l»e killing. jr refusal. ? If you vn throat, ition testi- iiing from her fatlu r ir convei- me down m." The defence, after the d, a knife ent, some ^hich was ed to the )risoi:er, sent be- iaration> virh her, :('epti()ns sxcludinL^ tlicy rc- as a Mil- n of tiie a sister and two brothers. I am the oldest and am fifteen years old. We lived last year on Dr. McClellan's place. During last January we lived on James Wood's place. 1 knew Eliza Truss, and have often seen her and mv father togetlier, and have carried messages between thcni. One message was, Edie Collins told mo to tell my father that Eliza wanted him to meet her at Edie's on last Christmas night. I delivered that message, and it was the last one. My father was away from home a good many nights last January. My father and we childi-en lived in a house by ourselves on Mr. Wood's place. The defendant offered to prove by this witness that the defendant slept very little last January, (luring the nights he was at home ; that he was restless at night, and spent much time in walking the floor, and com})lained of l)eing unable to sleep ; also, that he had heard defendant say he was engaged to marry Eliza Truss, and was going to bring her home soon, for a new raotlier for him; also, that defendant brought home provisions and articles of household furniture, saying that he was going to marry Eliza Truss, and was fixing to go to housekeeping." The State objected to this testimony, as it was offered, and the court sustained each objec- tion ; and the defendant separately excepted. It was proved that the defendant's character was that of a quiet and peaceable man, but some of the witnesses said that ho was nervous and excitable, though they had never known him to bo engaged in any personal diflBculty. One absent witness for the defendant, a written statement of whose testimony was admitted, detailed an occurrence which took place about ten years be- fore tlie killing, and during the life of the defendant's wife, when the defendant atterajjted to kill him on finding him at his (defendant's) house eating supper with his wife ; but begged his pardon the next time lie saw him, and said that he was not in his right mind at the time. Another absent witness, whose testimony was admitted in the same way, saw the defendant with Eliza and Wesley Eml)rv on the morning the killing occurred, while they were on their way to town, the defendant walking, and the others riding in a buggy ; saw the defendant help Wes- ley to fix one of the shafts of the buggy, and saw him talking and laughing with Eliza and Wesley; and she said that "he seemed in a good humor, and his manner was quiet and as usual." Numerous ex- eei)tions, over fifty in all, were reserved by the defendant to the ridings of the court in excluding evidence ; but a statement of these matters is not material to an understanding of the points decided bj' this court. The bill of exceptions is very long, and pui'ports to set out all the evi- dence adduced. The court charged the jury in writing, and several exceptions were 356 THE BURDEN OF PROOF OF INSANITY. Boswell V. State. reserved by the defendant to different portions of tlie charge ; the parts excepted to being inclosed in brackets, as follows : — "The law presumes that the defendant is innocent, and the State must prove to the jury that he is guilty beyond a reasonable doubt, as charged, before 3'ou can so find him. Murder is the felonious taking of human life, with malice aforethought. Malice is such a depraved and wicked condition of mind, as shows a total disregard of social duty, and a heart or will bent wholly en evil. Malice may be express or implied. Threats to take life, without any provocation or without reasonahk- provocation. Malice may be implied or inferred from the deliberate perpetration and use of deadly weapons in taking human life. If tlie killing was intentionally done by the defendant, and without reasonable provocation, justification or excuse, the law conclusively presumes tliat it was done with malice aforethought. [Passion, without a reasonable provocation which causes one person to take the life of another, is ma- lice.] [It is, therefore, not a question proper for your consideration, whether the defendant was impelled by passion to take the life of Eliza Embry (if he, in fact, killed her), unless the circumstances and causes that moved him to take life were such as to have excited the passion and provoked a reasonable man to such an extent as to dethrone rea- son, and excite passion be3'ond control.] [All persons are alike bound to control their passions, and the law, in such cases, makes no moie allowance for the passions and temper of one man than for the passions and temper of others ; and passions not founded on reasonable provo- cation, will not reduce a killing from a higher to a lower degree of homicide.] "If the defendant, in this county, and before the finding of the indictment in this case, wilfully, maliciously, deliberately, and witli premeditation killed Eliza Embry, by stabbing her with a knife, then he is guilty of murder in the first degree. To constitute murder in the first degree, it is not necessary that the wilful, malicious, deliberate, and premeditated purpose to take life should have existed with the defend- ant any particular lengtu of time before the killing. If the malice ex- isted at and before the killing, though but for an instant of time, it was malice aforethought ; and if the defendant distinctly formed in his mind tiie purpose to take the life of Eliza Embry, and thought over the mat- ter, and prepared for it before the killing, and killed the deceased in accordance with this formed purpose or design, it would be a wilful, malicious, deliberate, and premeditated killing, and, consequent^', mur- der in the first degree. [If the defendant killed the deceased, because she refused to marrv him and married another man, even though sIk' e ; the parts d the State »le doubt, as us taking of ipraved and al duty, and or implied. reasonahlc e deliberate ife. If the ; reasonable Bsumes that I. reasonable ther, is raa- isidcration, ife of Eliza and causes the passion throne rca- ilike bound s no moie le passions ible provo- r degree of ing of the and with , then he is n the iirst irate, and le defend- nalico vx- no, it was 1 his mind r the mat- ceased in ! a wilful, iit'v, niur- bocausc iou<;h she INSTRUCTIONS AS TO INSANITY. 357 Ami Drunkenness as a Defenci-. may have promised to marry him before she married Wesley Embry, this would not be such provocation as would reduce the killing from murder in the first degree to murder in the second degree, if, independ- ent of the fact of her promise to marry the defendant, you find all the elements of murder in the first degree, as above described, to exist in this case.] If the defendant, in this county, and before the finding of this indictment, wilfully, and with malice aforethcnight, but without either deliberation or premeditation, killed Eliza Embry by stabbing her with a knife, then he is guilty of murder in the second degree. [' ' When the plea of insanity is interposed, to protect one from the legal consequences of an act which amounts to a crime, to render the defence available, the evidence must be such as to convince the minds of the jury that, at the time the act was done, the accused was not conscious that, in doing the particular act, he was committing a crime against the laws of God and his countr_y . [If he knew right from wrong, and knew that he was violating the law, he is then guilty ; for it is the conscious knowledge, connected with the act, that constitutes the crime.] [If, therefore, the accused insists that he was insane, he must adduce proof that will satisfy the jury that the act was not connected with the knowl- edge of its criminality ; and this proof should be clear and satisfac- tory.] * * * ^ The defendant excepted to this entire charge, and also to each part separately which is included in brackets; and he then requested the court to give the following charges, which were in writing : — " 1. Drunkenness may produce a state of mind which would render a person incapable of forming or entertaining the design or intention to take life ; and if the jury find, from the evidence, that the defendant was in such a state of mind fi-om drunkenness, at the time of the kill- ing, then they cannot find him guilty of murder. " 2. Before the defendant can bo convicted of murder, the jury must l)c satisfied by the evidence, beyond all reasonable doubt, that he in- tended to take life ; and if they believe from the evidence that, at the time of the killing, he \ras too much intoxicated to have entertained any sueh intention, then they cannot find him guilty of murder. " 3. If, from any cause shown by the evidence to the satisfaction of the jiuy, the condition or state of the defendant's mind, at the time of the killing, was such as to render him incapable of forming and enter- taining the design to take life, then the jury cannot find him guilty of murder. " 4. Moral insanity is recognized by the law ; and if the jury believe 358 THE BURDEN OF PROOF OF INSANITY. Boswell V. State. from the evidence, that the defendant wiis morally insane when he stahhc'd Eliza Enibry, then he is not guilty. " 5. If the jury believe from the evidence that defendant knew rij^lit fi'oni wrong wlien he stabbed Eliza Embry, they must further lind tliiU he had the power to refrain from tiie wrong, or they must acquit him. " G. A man morally insane, acting from an irresistible and uncon- trollable impulse, is not responsible for that act ; and if the defendant was in that condition, and was so acting at the time of the killing, he must be acquitted. "7. If at the time of the killing the defendant's intellectual power was for the time overwhelmed by violent mental disease, he must be ac- quitted. '•8. If b}' the overwhelming violence of sudden mental disorder, the defendant's intellectual power was obliterated, at the time of the killing, the jury must acquit him. " !>. If by the overwhelming violence of sudden mental disorder, no matter what may have caused such disorder, the defendant's intellectual power was obliterated at the time of the killing, he must be acquitted. " 10. Did the defendant, in committing the homicide, act from an irresistible and uncontrollable impulse? If so the act was not that of a voluntary agent, but the involuntary act of his body, without the con- cui'rence of a mind directing it ; and he must therefore be acquitted. "11. If the jury have a doubt of the sanity of the defendant at the time of the killing,, they cannot find him guilty of murder in the first degree, and sentence him to be hung. "12. If the jury have a reasonable doubt as to the sanity of the defendant at the time he killed Eliza Embry, they cannot find him guilty of murder in the first degree, and sentence him to be hung. " 13. If the jury believe from the evidence, that the defendant loved Eliza Embry, and that she had promised to marry him, but had been married to another man a few moments before the defendant killed her, they can look to these facts in determining the motive with which the deed was done, and in determining what, if any, is the degree of the defendant's guilt." The court refused each of these charges as asked and the defendant excepted to their refusal. Geo. W. P'lrsons, for the prisoner; //. C. Tomj)kins^ Attorney- General, for the State. Stone, J. — It was proposed to prove in this case by Charley Boswell, a witness for defendant, that during the month immediately preceding the homicide, defendant " slept very little during the nights he was at le when lie knew rijrlit er lind that •quit him. and uncon- e defendant ng, he must !tnal power fiiust be iw- isorder, tlie the killiuij:, isorder, no intellectual acquitted, ct from an )t that of a lit the eon- uitted. ant at the n the first ity of the lim guilty ant loved had been mt killed )tive with he degree lefendant Ittorney- Boswcll, irecedinjr le was at EVIDENCE OF SLEEPLESSNESS IlELKVANT. Rejection of Kvidcuce Must be Specially Except, d i :)'}{) home ; that he was restless at night, and spent much time in walking the floor, and complained of being unable to sleep." The plea of insan- ity was relied on in defence ; and if this question were so presented that we could cf)nsider it, we would be inclined to hold that the evidence I ;ight to have been received. Sleeplessness and nervous restlessness are admissible evidence on questions of sanity vel non. Inconclusive, ot course ; for in much the larger number of persons thus affected, there is no trace of mental unsoundness. The causes of it are very various. Still it is a circumstance, although in many cases very slight, to be weighed by the jury. But we cannot pronounce that the Circuit Court erred in this ruling. Tlie testimony was offered in connection with otlier evidence clearly inadmissible; offered in one continuous sentence without any stop, or mark of separation. At the end it is said, "The State objected to this testimony, as it was offered, and the court sustained each objec- tion, and the defendant separately excepted." This is too indelinite. We cannot certainly know what were the separate parts into which this mass of testimony was proposed to be divided; and hence Ave ore lift in doubt as to what was the subject of each and every exception lesorved. To be the subject of revision here, the exception must clearly p lint to what it refers, i It is certainl}'' true that insanity, properly proved, is a complete answer to a criminal charge. An unsound mind cannot form a criminal intent ; and as crime includes both act and intent, an indispensable constituent is wanting, when the mind of the perpetrator is diseased in that degree,, which is, by the law, pronounced insanity. Few subjects have, in later times, been more discussed than diseases of the mind. The tendency of modern research has been to accord to mental disorders a wider scope than was formerly acknowledged. Care must be maintained, however, that in considerating and protecting this pitiable class, which appeals so loudly to our sympathies, we do not br.-ak down all legal barriers to crime, and leave society at the mercy of those whose evi- dence of insanity consists in their supreme depravity. No defence per- haps is more easily simulated than this ; and hence, when presented, its evidences should be carefully and considerately scanned ; not with a forgone conclusion to disallow it, as a pretence ; not with an undue bias in its favor; but with a firm determination, without partiality or preju- dice, to give to the testimony submitted its due weight ; nothing more, nothing less. ' Donnellt'. Jones, 13 Ala. 490; Newton v. Jackson, 23 Ala. 705 ;1 Brick. Dig. 886, sect 1186. 360 THE BURDEN OF PROOF OF INSANITY. Boswell r. State. Tlic questions, what degree of insanity will excuse crime ; on whom and to what extent, is cast the duty of making good or of overturning the defence of insanity in a criminal prosecution, and tlie measure of proof necessary to that end have caused the greatest contrariety of judicial opinion. The case of McNaghten * came before the Britisli House of Lords for trial ; and their lordships submitted certain ques- tions to the judges of England, which were answered by Lord Chid Justice TiNDAL, speaking for all the judges except Mr. Justice Mai i.i;. who delivered a separate opinion. Among the questions propounded were the following : — "1. What is the law respecting alleged crimes, committed by persons afflicted with insane delusion, in respect of one or more particular sul»- jects or persons ; as, for instance, when, at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or avenging some supposed grievance or injury, or of producing some supposed public benefit." " 2. What are the proper questions to be submitted to the jury, wlicii a person, alleged to be afflicted with insane delusion respecting one oi' more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence." " 3. In what terms ought the question to be left to the jury, as to tlic prisoner's state of mind when the act was committed." "4. If a person, under an insane delusion as to existing facts, com- mits an offence in consecpience thereof, is he thereby excused ? ' ' The answer of the judges was confined to the letter of the questions. They said: " In answer to the first question, assuming that j'our lord- ships' inquiries are confined to those persons who labor under such partial delusion only, and are not in other respects insane, we arc of oi)inion that, notwithstanding the party accused did the act com- plained of with a view, under the influence of insane delusion, of redressing or avenging some supjmsed grievance or injury, or pro- ducing some public benefit, he is nevertheless punishable, according to the nature of the crime committed, if he knew at the time of commit- ting such crime that he was acting contrary to law ; by which expression we understand your lordships to mean the law of the land. As tin third and fourth questions appear to us to be more conveniently answered together, we have to submit our opinion to be, that the jury ought to be told, in all cases, that every man is to be presumed to be » lOCl. &Fin. 200. TEST OF INSANITY. 3(51 Tlic Answers in McNiigliten's Cast', on whom i'erturiiiiimmissioii ry to law, of insane or injury, ury, when ng one or mmissioM lefence." as to tho cts, com- uestions. our lonl- der such we are xct com- sion, of or pro- •ding to cominit- pressidii As the enienth the jury id to bo biuie, and to possess a .-lufflcient degree of reason to be responsiljle for iiis crimes, until the contrary is jwoved to their satisfaction ; and tliat, to establish a defence on the ground of insanity, it must be clearly proved that, at tlie time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know tlje nature and quality of the act he was doing ; or if lie (lid know it, he did not know he was doing what was wrong. The mode of putting tlie latter part of the question to the jury on these occasions has generally been, whether the accused, at the lime of doing tlie act, knew the difference between right and wrong; wliich mode, tliough rarely, if ever, leading to any mistake witli the jury, is not, as we conceive, so accurate when put generally and in the abstract as when put with reference to the party's knowledge of riglit and wrong in respect to the ver}' act with which he is charged. If the question were to be put as to the knowledge of tlie deceased, solely and exclusively, with reference to the law of the land, it might tend to confound the jury by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a comnction ; whereas, the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he d(jes know it. If the accused were conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable ; and the usual course, therefore, has been to leave the (luestion to the jury, whether the party accused had a sufficient (Icixree of reason to know that he was doing an act that was wrong ; and this course, we think, is correct, accompanied with such observa- tions and explanations as the circumstances of each particular case may reijuire. The answer to the fourth question must, of course, di'pend on the nature of the delusion ; but, making the same assump- tion as we did before, — namely, that he labors under such partial delusion only, and is not in other respects insane, — we think he must be considered in the same situation, as to responsibility, as if the facts with respect to which the delusion exists were real. For example, if, under the influence of delusion, he supposes another man to be in the act of attempting to take awaj'' his life, and he kills that man, as he supposes, ill self-defence, he would be exempt from punishment. If his defence was, that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such sup- posed injury, he would be liable to punishment." Mr. Justice Maule answered the first of the questions propounded in ' ' There is no law, that I am aware the negative. His language was ; 302 THE BUUUK.N OF i'liOOF OF INSANITY. lioswc'll r. Stiito. of. tliat makt's persons in the state described in the qncstion, not re- sponsible for their criminal acts. To rentier a person irresjjonsible for crime, on account of unsoinubiess of mind, tlie unsoundness should, according to tlie hiw as it has long been understood and held, be such as rendered him incapable of knowing right from wrong." It must not be overlooked that the judges were considering a case of partial insanity ; the case of a pi-rson alllictcd with " insane delusion in resjieetof one or more particular subjects or persons." And the opin- ion most favorable to the accused — that of all the judges except Justice Mai'le, was that insane delusion was no justification or excuso of homicide, unU'Ss the perpetrator was insanely deluded into the belief of the existence of a fact, or state of facts, which, if true, would justify or excuse the homicide, under the law as upplicable to sane persons. The case from w'li •■! we have extracted so largely was heard before the House of Lords, in lSb'>. Lords IJi-ougham, Campl)ell, Cottenluun and Wynford expressed gratification at the answers given by the judges. Lyxuiuhst, then Lord Chancellor, presiding over that august couit, said : ■■ I agree that we owe our thanks to the judges, for the attention ami learning with which they have answered the questions now put to them." The law of England on this very delicate question, had been declared, in a very decided majority of imjwrtant cases, substantially as announced by Mr. Justice ]\L\i:le ; though in some of the earlier cases a severer rule and measure of proof were exacted, where insanity was relied on as a defence.* The case of JIadJield, a very celebrated trial for attempting to take the life of the king, seems to have been made somewhat an exception to the rule. This is the case in which Lord Erskine made his celebrated argument. Wo cannot find the report of it in our library; but in 1 Russ. on Crimes, 12, will be found a summary of the evidence, and the ruling of Lord Kkxyox on the main question. The prisoner had been severely wounded in a battle, and there was strong evidence that, both before and after the assault, he had insane delusions of very pronounced character. The attempt was made in the theatre. It was proved that the prisoner " sat in his place in the theatre, nearly three-quarters of an hour before the king entered, that at the moment when the audience rose, on his majesty's entering his box, he got up above the rest, and presented a pistol loaded with slugs, fired it at the king's person, and then let it drop ; and when he fired, his situation appeared favorable for taking aim, for he was standing upon the second seat from the orchestra ' See the authorities collected anJ collated in 1 Rubb. on Crimes, 9 to 14. 4 TEST OF INSANITY. 3(53 Iludrteld's Case. Dn, not ro- onsible for 88 should, 1, l>e such f a cftse of It'liisioii ill 1 till! Opill- eptJiistitr t'XCllsi' of i belii'f of ilarent derangement; and with equal calmness repeated that he was tired of life, and said that his plan was to get rid of it by otlier means; he did not intend anytliing against the life of tlie king; he knew the altcmi)t only would answer his imriiose. These facts showed, not only that lie knew right from wrong, not only that he knew he was committing a crime against the law, by whicli he would forfeit his life ; but it exhibited deliberation, and the exercise of the reasoning faculty. Lord Kkxyon held, that, " as the prisoner was deranged immediately before the offence was committed it was im- probable that he had recovered his senses in the interim; and although wire they to run into nicety, proof might be demanded of his insanity at the i)recise moment when the act was committed ; yet there being no reason f(jr believing him to have been at that period a rational and ac- countable being, he ought to be acquitted." He was acquitted. This celebrated case suggests several reflections, by which we may be profited in the administration of the law. The first is that the work- ings of a diseased mind are so variant that it is diflicult to lay down an absolute rule for the government of all cases. Each case must depend, more or less, on its own particular facts. And such is the language of the adjudged cases. In the next place, the charge to the jury should be so shaped as to apply, as far as the law will allow, to the facts of the lasft on trial. Third, that calmness, indifference to results, conscious- ness of the moral or legal criminality of the act, with connectedness in the employment of the reasoning faculty, while not conclusive evidence of sufficient sanity to justify criminal punishment, are nevertheless sstrong circumstances tending to prove legal accountability. In HadJiekVs Case we infer from the language of the court, that he would have been adjudged sane and accountal)le, if it had not been siiown that a very short time preceding the attempt on the king's life he had shown unmistakable .symptoms of insanity. So that his case can scarcely be classed as an exception to the rule, Avhich requires the insan- ity which excuses to be proven to have existed at the very time the act complained of was committed. The cool, calm, indifferent conduct of the prisoner, his consciousness of right and wrong, were, neither nor all of them, evidences which Lord Kenyon regarded as proving insanity. He 364 TlIK HUIIOEX OF I'UOOt' OF 1X8AMTY. UosWL'll r. Slate. treated tlicin as indiciu of Hunity, to be overcome. The recent, clcai'ly proved insanity of tlie prisoner caused liim to bcjlievo that in tliat case, reason had not re-asserted her dominion. From it he inferred the con- tinued presence of insane dehision, when the causeless and seemingly unaccountable attempt was made on the life of the king. So, to justify the inference of insanity from the calmness of manner and indifference to consequences, which sometimes mark the conduct of the man-slayer, there should be convincing evidence of previous insanity, or insani' delusions, so recent as coupled with the causelessness of the killing, to raise the presumption that the i)aroxv..ai had not entirely passed away. The doctrine in regard to partial insanity asserted by the Englisii judges in McXaghten' s Case, was afflrmed in a very able opinion by Chief Justice Shaw, in Commonwealth v. liofjerti,^ and the same principle is asserted by Wharton in his work on Homicide,^ citing many authoii- ties in support of it ; and in 2 Greenleaf 's Evidence.^ See also Flana- gan v. People,"* Spann v. State,^ People v. McDonnell ^ Blackburn v. State.i There is a species of mental disorder, a good deal discussed in mod- ern treatises, sometimes called " irresistible impulse," "moral insan- ity," and jyerhaps by some other names. If, by these terms, it is meant to affirm that a morbid state of the affections or passions, or an unsettling of the moral system, the mental faculties remaining mean- while in a normal, sound condition, excuses acts otherwise criminal, we are not inclined to assent to the proposition. The senses and mental powers remaining iinimi)aired, that which is sometimes called "moral," or " emotional insanity," savors too much of a scared conscience, or atrocious wickednc&s, to be entertained as a legal defence. Gibson, C. J., in Commonwealth v. Hosier, v hile recognizing the existence of moral or homicidal insanity, as " consisting of an in-esist'ble inclination to kill, or to commit some (Ulic/ particular offence," adds: "There may be an luiseen ligament pressing on the mind, drawing it to conse- quences which it sees but cannot avoid, and placing it under a coercion which, while its results are clearly pei'ceived, is incapable of resistance." With all resi)ect for the great jurist who uttered this language, we sub- mit if this is not almost or quite the synonym of that highest evidence of murderous intent known to the common law — a heart totally de- praved and fatally bent on mischief. Well might he add: "The doc- trine which acknowledges this mania is danirerous in its relations, and ? 7 Mete. 500. 3 Sect. S66. » Sect. 372. < 52 X. V. 467. 23 Ohio St. 146. 8 4 Pa. St. 2W. '•> 47 Geo. 553. « 47 Cal. 134. MOKAI. INNAXITY DIHAIM'UOVKI). 3(5r) Burden of Proof. (■;in be rec()u;iii/.i'«l ceasional ng to the easonablo aaent or express ul prosc- istituent, ovc their nocence, Is them istituent iiorality, tion an' lat fact. offender s whose iiinatin!^ oidanco ■cr. ^Ve uisinm li as the law presumes sanity, that presunii)tion, liivC that of innocence, should prevail throughout the trial until it is overcome. And whether the evidence of insanity arise out of the testimony which proves the homicide, or is shown aliunde, reason and analogy alike declare it is iiisutficient until it overturns the presumption of sanity. In Commoiiioealth v. Ecldy,^ the court said: "The burden is on the Commonwealtli to prove all that is necessary to constitute the crime of iiuinler. And, as that crime can be committed only by a reasonable l)eing — a person of sane mind — the burden is on the Commonwealtli to prove that the defendant was of sane mind when he committed the act of killing. But it is a ]iresuinption of law that all men are of sane mind ; and that presumption sustains the burden of proof, unless it is rebutted and overcome b}'' satisfactory evidence to the contrary. In order to overcome this presumption of law and shield the defendant from legal responsibility, the burden is on him to prove to the satisfac- tion of the jury, by a preponderance of the whole evidence in the case, that, at the time of committing the homicide, he was not of sane mind." Pennsylvania stands unmistakably committed to the same doctrine. - The opinion is both able and philosophic. Says Agnew, C. J.: "In- sanity is a defence. It presupposes the proof of the facts which con- stitute a legal crime, and is set up in avoidance of punishment. Keeping in mind, then, that an act of wilful and malicious killing has been proved, and requires a verdict of murder, the prisoner, as a defence, avers that he was of unsound mind at the time of the killing , and inca- l)ahle of controlling his will ; and, therefore, that he is not legally re- sponsible for his act. * * * Soundness of mind is the natural and normal condition of men, and is necessarily presumed ; not only because the fact is generally so, but because a contrary presumption would be fatal to the interests of society. No one can justly claim irresfjonsi- bllity for his act contrary to the known nature of the race of which he is one. He must be treated, and be adjudged to be a reasonable being, until a fact so abnormal as a want of reason positively appears. It is, therefore, not unjust to him that he should be so conclusively presumed to be until the contrary is made to appear on his behalf. To be made so to appear to the tribunal determining the fact the evidence of it must be satisfactory, and not merely doubtful, as nothing loss than satisfac- tion can determine a reasonable mind to beheve a fact contrary to the <'ourse of nature." To the same effect are State v. Sniith,^ People 7 Gray, flSS. ' Ortwoin v. Commonwealth, "6 Pft. St. 414. 3 53 Mo. 267. 24 370 THE BURDEN OF PROOF OF INSANITY. Boswoll V. State. V. McDonnell,^ State v. Latvrence,^ Leoffner v. State,^ State v. StarluHf,'^ State v. Felter,^ McKenzie v. State.^ Mr. Wharton, in his work on Homicide^ classes New York among the States that hold in- sanity is a defence, the afflrmative proof of which rests with the de- fendant. The question, we think, is somewhat unsettled there. ^ There are respectable authorities to the contrary, but M-e decline to follow them. We hold then that insanit}' is a defence which must be proven to the satisfaction of the jury by that measure of proof which is required in civil causes ; and a reasonable doubt of sanity, raised by all the evidence, does not authorize an acquittal. The doctrine we have been combatting is, we think, purely American ; and we regard it as an erroneous application of the principle of presumed innocence. One disputable presumption should not be allowed to override and annihilate another. Under the rules above declared the entire affirmative charge of the Circuit Court is free from error. Of the charges asked by defendant, those numbered 1, 2 and 3 were abstract, there being no evidence to support them ; those numbered 4, 5, G, 10, 11, 12, 13, were all rightly refused under the principles we have declared above ; charges 6, 7 ami 8 were calculated to mislead the jury, if they were not abstract, and were rightly refused : the two charges given at the instance of the prose- cution are free from error ; and the judgment of the Circuit Court must be affirmed. It is, therefore, ordered and adjudged that, on Friday, the eleventh day of June, 1880, the sheriff of Talladego County execute the sen- tence of the law, by hanging the said George Boswell by the neck until he is dead. Brickell, C. J., dissenting. 1 47 Cal. 134. 2 57 Me. 574. 3 10 Ohio St. 599. * 6 Jones N. C. 366. ' 32 Iowa, 50. « 26 Ark. 332 ; Wharton on Horn., sect. 665 ; 2 Greenl. Ev., sect. 373. ' Sect. 666. e Flanagan v. People, 52 N. Y. 467. STATE V. FELTER. 371 Right to Open and Close. 1., sect. 66S; BURDEN OF PROOF — RIGHT TO OPEN AND CLOSE. State v, Felter. [32 Iowa, 49.] In the Supreme Court of Iowa, June Term, 1871. Hon. Jamks G. Day, Chief Justice. " Jo.SKPII M. Bkck, \ " William E. Miller, \ Judges. " Chester C.Cole, j 1. Burden of Proof. — The defence of insanity must be established by proof satisfactory to tlie jury. .'. Rig'httoopeiiand Close — Practice. — In acriniinal trial, where the defence is insan- ity, the prisoner is not entitled to open and close. Appeal from Linn District Court. Indictment for miiriler. The case was tried before and the judgment of conviction reversed.! Upon his second trial the prisoner was con- victed of murder in the second degree, and sentenced to the peniten- tiary for life. He again appeals. /. M. Preston & Son, for the appellant. //. 0' Conner, Attorney-General, for the State. Cole, J. The defence was grounded mainly upon the alleged insanity (.r luonomania of the defendant. His counsel asked that they be allowed the opening and closing argu- ment to the jury. The refusal to grant this constitutes the third assigned error. It was necessary for the State to prove both the kilUng and the malicious in- tent. The former was not controverted, but tlie latter was denied ; and for the proof of the denial the defendant endeavored to show that he was so mentally deranged at the time as to be incapable of entertaining the malicious intent. The intent was therefore not admitted, but was. left for the State to establish by proof. Hence, it was not error to re- fuse defendant's counsel the opening and closing argument to the jury.- The defendant asked the court to instruct: "If the jury entertain, from the evidence, a reasonable doubt as to criminal intent, or as to wliethcr the defendant was of sound mind and discretion, the defendant is entitled to the benefit of that doubt, and your verdict should be ' not state t». Felter, 25 Iowa, 07. s Loeffner v. State, 10 Ohio St. 598. 372 THE BURDEN OF TlJOOr OF INSANITY. State V. Folter. guilty;'" which the court refused. Instead thereof, the court in- structed the jury : " It is not necessary, in order to acquit, that tlie evi- dence upon tlie question of insanity should satisfy you, beyond all reasonable doubt, that the defendant was insane ; it is sufficient, if, upon consideration of all the evidence, and the facts, and circum- stances disclosed by the testimony, you are reasonably satisfied that he was insane. If the weight or preponderance of the evidence shows the insanity of the defendant, it raises a reasonable doubt of his guilt." The refusal of the one and the giving of the other is the fourth as- signed error. It IS iv "'sputed that the current and weight of authorities are in accoi "I ci' instruction as given by the court, and in our opinion it has a!&v,- luu t-upport of reason, humanity, and public policy. Formerly the rul<^ was that where an accused relied upon the defence of insanity, itwasjncrr >c»nt ' him to prove his insanity beyond a reasonable doubt. ^ Many ca.H';s, however, state the rule substantially as it was given by the District Court in this case.^ The appellant's counsel rely upon People v. McCann,^ and Hopps v. People,'^ in support of the instruction as asked b}' them. The first case •"' does not support that view, but does support the view taken bj' the court. BowEN, J., who wrote the leading opinion of the court in that case, says : "• It is also a rule, well established b}' authority, that where, in a criminal case, insanity is set up as a defence, the burden of proving the defence is with the defendant, as the law presumes every man to be sane. But I apprehend that the same evidence will establish the de- fence which would prove insanity in a civil case. The rule requiring the evidence to satisfy the jury beyond a reasonable doubt is one in favor of the individual on trial charged with crime, and is applicable only to the general conclusion, from the whole evidence, of guilty or not guilty." The case of Hopps v. People was decided by a majority opinion, Mr. Justice Walker dissenting, and is directly in conflict with the previous unanimous holding of the court in Fisher v. People.^ We also find that a majority of the Supreme Court of Indiana sustains the 1 state 9. Spencer, 21 N. J. (L.) IflG; State V, Brinyea,5 Ala. 241 ; People r. Myers, 20 Cal. 518; State f. Huting, 21 Mo. 477; 1 Whart. Am. Cr. Law, par. 55. a Loeffner V. State, 10 Ohio St. 698; Fisher V. People, 23 lU. 28;i; Co^ : . Kimball, 24 Pick. 3Cfi; Com. «•. Rogers, 7 Mete. 500; Gra- ham V. Com., IG B. Mon. 589; Bonfanti v. State, 2 Minn. 123 ; State v. Starling, 6 Jones, L., :566 ; State v. Klinger, 43 Mo. 127 ; State r. Bartlett, 43 N. H. 224, and many other cases 3 16 N. V. 58; s. c. 3 Park. 272. * 31 111. 385. 6 IG N. Y. 58. « 23 111. 283. See, also, Chase r. People, 40 Id. 352, explaining the Hopps Case. GRAHAM V. CO31M0NWEALT1I. 373 court i li- lt the evi- eyond all iciont, if, circum- sfied that evidence doubt of ourth as- ies are in >pinion it Formerly insanity, ;asonal)le IS it was Hop2is V. rst case •' n bj' tlic rt in that it Avhero. f proving lan to be 1 the de- requiring s one in pplicable guilty or majority diet with 'e.6 We ains the g, 6 Jones, ;7; State r. ther cases Syllabus. doctrine in the IIopps Case, in Polk v. State.^ We have given to the (luestion our careful and deliberate consideration, and are persuaded that the matter of reasonable doubt has ever been wisely limited to the general conclusion of guilty or no, upon all the evidence in the case ; that it cannot safely be applied to any one fact in the case, howsoever material it may be ; that the sanity of the accused being once estab- lished in the case, either by direct and positive testimony, or by the presumption of law, or both, the accused cannot avoid it, it being in its nature an affirmative defence, except by a preponderance of proof, or which is the same, satisfactory evidence of his insanity. The instruc- tion of the court was therefore correct. ^ The only other error assigned is, that the verdict is contrary to the evidence. We have given to the evidence a careful reading, and are fully satisfied that the jury came to a correct conclusion upon it. Aside from the terrible atrocity of the crime, and the revolting cir- cumstances attending its perpetration, there is substantially nothing to support the defence of insanity. Afirmed. ' BURDEN OF PROOF— JURY MUST BE SATISFIED OF INSANITY. Graham v. Coimonwealth. [IG B. Mon. 587.] In the Court of Appeals of Kentucky, Winter Term, 1855. Hon. Thomas A. Marshall, C/iie/JMsijce. " B. M. Ckenshaw, " Jamks Simpson, I Judges. " Hexry J. Stites, To authorize an acquittal on tlic ground of insanity, the Jury must be satisfied that the accused was insane. Appeal from McCracken Circuit Court. 0. Turner and L. S. Trimble, for appellant ; James Harlan, Attorney- General, for the Commonwealth. r. People, ase. 1 lOInd. 170; and also in Stevens f. State, = State v. Xash, 7 Iowa, 347; State v. 31 Ind. 485. See, also. People v. Garbutt, 17 Ostrander, 18 Id. 436. Mich. 9. 374 TIIK UUIJDKX OF TUOOF OF INSANITY. Grahain v. Cominoiiwoalth, Stites, J., delivered the opinion of the court. At the November term, 18;")o, of the McCraeken Circuit Court, John Graham was tried and convicted of the murder of his wife. Tlie defence relied on by the prisoner Avas insanity at the time of tlic commission of the act, and some evidence was introduced in 8Ui)p()ii of that defence. After the evidence was ck)sed, the prisoner's counssel moved the follo\ving instruction: "-That, if the jury believed from tlu evidence that there was a rational doubt growing out of the evidence, as to whether Graham was insane or non comiios mentis at the tinir of committing the homicide, then they shouhl give the prisoner the benefit of that doubt and acquit him." This instruction was refused, and an exception taken by the pris- oner's counsel, who then moved the court to instruct the jury upon the whole law of the case ; and tliereupon the court gave the following instructions : — " 1st. The court instruct the jury that if they believe from the evi- dence that Graham killed the deceased, they must find him guilty of murder, unless they believe from the evidence that at the time he did the act he was laboring under insanity of mind. "2nd. That if they believe from the evidence Graham did kill hi^ wife, and that he was laboring under insanity on the subject of love and jealous}', yet if the}' believe from the evidence he had sufficient reason to know that he was doing wrong and would be liable to pini- ishment, and that he had sufficient power to control his actions and refrain from killing her, the law is against him, and they must find him guilty. " ;ird. The court instruct the jury that the law presumes every man to be sane until the contrarj' is shown by the evidence. A\u\ before the prisoner can be excused for killing the deceased on the pica of insanity, the jury must be satisfied from the evidence that the accused was laboring under such a defect of reason as not to know the nature and qualit}'^ of murder ; or if he did know it, that he did not know to commit murder was wrong. " 4th. That the true test of responsibility is whether the accused liad sutficient reason to know right from ivrony, and whether or not he had a sufficient power of control to govern his actions. That if they should believe from the evidence he was a monomaniac, yet if the}' should believe from the evidence he knew it was wrong to kill, and had suffi- cient power of control to govern his actions, and to refrain from com- mitting the homicide, then the law is against him, and they must find him guilty. GUAIIAM V. COMMONWEALTH. 37J Instructions of thu Court. " 5th. That if they had a rational doubt as to whether said case is murder or manslaughter, they must find him guilty of the latter, as the It'sser offence; and if they have such rational doubt as to his guilt or innocence, they must acquit him. " Gth. That a rational doubt is one growing out of the evidence, and not a mere chimera existing in the juror's mind; and to acquit on mere light and trivial doubts existing in the juror's mind, and not growing out of the evidence, tends to the encouragement of male- factors, is detrimental to the best interests of society, and a virtual violation of the juror's oath." And after the instructions were read ever to the jury, the court in({nired if there was any other point upon which an instruction was desired, and none was requested ; but an exception was taken to each of the foregoing. The jury having found the prisoner guilty, and the Circuit Court having refused a new trial, he has brought the case up l»y appeal. The only question for consideration presented by the record is the propriety of the refusal of the instruction asked for by the prisoner, and granting of others in lieu thereof. It is earnestly contended in behalf of the appellant, and that is the main ground relied on for reversal, that the humane principle adopted in favor of life, which forbids a conviction whilst there is a rational doubt of guilt, has been violated in this case by withholding from the jury the instruction asked for, and telling them, in the third instruction granted, that before they could acquit upon the ground of insanity, they must be satisfied that the accused was insane when he committed the homicide. The importance of the case to the appellant has induced a thorough examination of the authorities within our reach bearing upon the ques- tion, and after full consideration we feel convinced, from the unbroken current of adjudications upon the subject, as well as from the reason of the rule, that it has not been impinged upon, and that no error was committed by the Circuit Court of which the appellant can justly com- plain. The rule in question is founded upon the benign presumption of law in favor of innocence until the contrary is satisfactorily established, a presumption which continues in force in behalf of the accused, and re- mains his shield and protection as long as a rational doubt exists as to liis guilt. To the benefit of this presumption he is always entitled, and it has been extended to the prisoner in this case, for the jury are told in 37G THE BURDEN OF PROOF OF INSANITlf. Graham v. Commonwealth. the fiftli instruction that " if the}' have such rational doubt as to liis guilt or innocence, they must acquit him." This presumption of the law in favor of innocence is alike essentia! to the safety of the individual citizen and the security of society, and is universally recognized in all criminal and penal cases. But there an^ other legal presumptions alike important, and indispensable to the well- being and safety of society, and as necessarj' in their application in criminal cases. Among these is the presumption of sanity. Every man is presumed to be sane, and accountable as such, for the commis- sion of crime. This i)resumption is as necessary and universal in its application in criminal cases as the presumption of innocence. Tlic^ same amount of proof is recpiired to rel)ut the one as the other. And when, as here, a party has committed a homicide and endeavors to shield himself from the consequences of his act by a i)lea of insanity, the law demands of him such evidence in support of that defence as will satis/;/ the jury that when he committed the act he was insane, and, as an in- sane being, not responsible for his acts. This rule is foinided in wise policy, and is obviously necessary for the protection of society, as much so as that which requires satisfactory evidence to rebut the presumption of innocence. Besides the character of the presumption, its necessary operation in almost every transaction of life, and its almost universal application in civil as well as criminal cases, there are other cogent reasons for this I'cquisition of clear and satisfactory evidence in support of a defence in criminal cases grounded alone upon insanity. In ordinary defences, such as self-defence, want of malice, sudden heat and passion, etc., when by reason of the killing the burthen of proof rests upon the accused to rebut the legal pre- sumption of malice, the facts relied on are usually a part of the trans- action, or so directly connected with it, and so simple and few, that they are readily comprehended and appreciated by a jury, and no jury will convict in such cases, whilst a rational doubt is entertained as to the reality and merit of the defence relied on, notwithstanding the bur- then of proof may be, by legal presumptions, cast upon the accused. But the plea of insanity is peculiarly liable to abuse. It can be so easily concocted, and facts, admissible as evidence in its support, so readily manufactured by the accused. The latitude of inquiry in such cases is almost boundless. It does not, as other defences, depend upon the proof of facts comprehensible to ordinary minds, and connected remotely or immediately with the transaction under investigation, but in its support facts having no connection with the transaction, only so SATisFAc roirv kvidexci: of insanity UEginjED. 377 lU'llinghiun and McNughten's Ca.scs. far as they may tend to sliow gi'iieral or previous iiisaiiit}' of the ac» riisi'd, but happoiiing long anterior to the commission of the offence for nhifh he was tried, and tlie opinions of learned and seientific men upon such facts, are admissible as evidence. It not iinfrefiuently occurs tiiat this plea is resorted to as a last extremity, with a view of introducing under the latitudinous range of inquiry, a multitude of facts and opin- ions not directly relevant, hut strictly admissible, to produce confusion aiul doubt in the mind of jurors, and interpose thereby ol)stacles to the attainment of just verdicts. The only safe rule in such cases is to re- (|uire in support of such deienoe satlsfdctory evidence that at the titnc of the commission of the act the party accused was insane. Less thau that ought not to sutflce, nor with less is the law content. This i)rinciple has been recognized in England and America, in most of the leading cases, since the time of Sir Matthew Hale. On the trial of Bellinyham for the murder of IVIr. Percival, where the defence relied on was insanity, Lord Mansfield said : " The law in such eases is extremely clear. If a man is deprived of all power of reason- ing so as not to distinguish whether it was right or wrong to commit the most wicked or the most innocent transaction, he could not certainly commit an act against the law. Such a man, so destitute of all power of reasoning, could have no intention at all. In order, however, to sup- port this defence, it ought to be proved by the most distinct and lUKpies- tionable evidence that the criminal was incapable of judging between right and wrong." ^ The rule seems to have been approved by all the English judges as late as 1843. The acquittal of McNughten for the muider of Mr. Drummond, on the ground of insanity, gave ristj to an animated discussion in the House of Lords, who ordered various interrogatories to be put to the judges a* to the law arising on the plea of insanity in criminal cases, and, among otliers, the following : " In what terms ought the question to be sub- mitted to the jury as to the prisoner's state of mind at the t me the act was committed? " To this they reply: " We have to submit our opin- ion to be, that in all cases the jury ought to be told that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his acts, luitil the contrary be proved to their satisfac- tion ; and that, to establish a defence upon the ground of insanit}', it must be clearly proved that, at the time of committing the act, the piirty accused was laboring under such a defect of reason from dis- ease of the mind as not to know the nature and quality of the act. Winslow on Plea of Insanity, Law Library, vol. 42, p. 1. 378 THK IJUUUKN OF I'UOOF OF INSANITY, (inihitiii r. (.'oiiiiiionwc-iilth. ho w.as (loinji; ; or if he did Iviiow, he did not Iviiow that lie was doin 10 Cl. & F. 200; 1 C. & K. 130; 8 Scott N. R. 595. 2 Com. V. Rogers . 7 Mete. 500. > 21 N. J. (L.) 196. KUIKL V. ('O.MMON'UKALTIl. 37!) 3 was (loill'r ploa of in- aiiit ' ■tucky, Summer Term, 1809. lion. RuFus K. Williams, Chief Justice, " Qeouok Rohkutson, j " MoKDix'Ai R. H.vuDi.v, \-,Tadijes. " Belvauu J. Pktkus, J 1. The lefiral presumption of sanity imisi bo rebutted by satisfactory evidence. A doubt ni i,.nilris not sulHcieiU to Jusiil'y an acciuitlal ; for the presumption of sanity must bo ovcicoino by a preponderance of evidence. 2. Mental or moral insanity, howeverrecent, to such an . xlent as to destroy free agency and moral responsibility, on beinjj established by sati.sfactory evidence will excuse. 3. Drunkenness, from social hilarity is no excuse for crime. Ai'PKAL from Jefferson Circuit Court. Ifm. L. Jackson and Selby Harney, for appellant. John Rodman, Attorney-General, for appellee. Chief Justice Williams delivered the opinion of the court. Wm. Kriel having been indicted, tried and found guilty of the mur- dei- of his wife, has appealed to this court for a reversal of the judg- ment and sentence of death. His only defence was that of insanity, pi'oduced from habits of dissipation and excessive drinking of ardent spirits. The following instructions were give to the jury at the instance of the plaintiff and defendant, and by the court of its own accord. For the Commonwealth : — 1. " Felonious homicide may be either murder or manslaughter. 2. "Murder is the killing of a human being by another with malice aforethought. 3. "Malice, in its legal sense, denotes a wrongful act done inten- tionally without just cause. 4. " Malice is implied by the law from any deliberate cruel act committed by one person against another, however suddenl}' done. 5. "If homicide be committed by the use of a deadly weapon in the previous possession of the person slaying, the law implies that the act was done with malice. 6. " By the term aforethought is meant a predetermination to kill, however sudden, or recently formed in the mind before killing. 8ttO THE liUUDEN OF I'UOOF OF INSANITY Kricl V. Coiuiuonwealth. 7. '' Before the jury can acquit Kricl on the ground of insanity from (leliriuiu tremens (if they believe all the evidence, beyond a rea- sonable doubt, that he did the killing with a deadly weapon andwithoul provocation), they should be satislied, from the whole of the testiinoii\ taken together, that he was laboring under a fit of delirium trenuiis m the time he shot; and the jury cannot presume its existenci', at llic time t»f the killing, from proof of antecedent fits, from which hv recovered. 8. ''In order to ac(iuit tiie i)risoner, Wm. Kriel, on the ground of insanity (if the jury are satisfied, to the exclusion of a reasonable doubt, that he killed Margaret Kriel, his wife, with a deadly weapon, and without any provocation), they should bcr^atisliod that the evidence, all considereil together, preponderates towards establishing the fu'l, that he was at the time he killed ]Margarct Kriel, his wife, deprived of the force and natural agency of his mind, and that his moral and intv'l- lectual faculties were so disordered by long contimied indulgence in intoxicating liciuors as to induce mental disease, and to deprive his mind of its controlling and directing power, and that .ic did not have, at the time, sullicient power to govern his actions^ 9. " If the jury believe, beyond a reasonable doubt from all the evidence in this case, that the accused is guilty of the crime charged iu the indictment, they should find him guilty." For the defendant : — 1. " The crime of nuu'der is the killing of a human being within tlie peace of *be Connnonwealth of Kentucky, by a person of sound mind and discretion, with malice aforethought. 2. "If the jury have a reasonable doubt as to any material fact, thev must ac(iuit. 3. ''If the jury believe that, at the time of the alleged killing, the accused was a person of unsound mind, they must acquit. 4. "If the jury have a reasonalile doubt as to the sanity of the accused, at the time of the alleged killing, they must acquit him ; and it is immaterial how that insanity was superinduced. 5. '' That to convict the accused, the jury must be satisfied, from all the evidence, beyond a reasonable doubt, that he shot his wife deliber- ately and maliciously, with intent to kill her, and at that time he was :i man of sound memory and discretion." By the court : — " If the jury should find the defendant not guilty, and they acquit him on the ground of insanity, thev must state that fact in the verdict." i;'.t< KlUEL V. COMMONWEALTH. 381 Instructions as to Insanity, »f insanity 'ond a rta- nd wi(li(jnt lestinu)n\ ircnu'iis at lev, at, the which he ground of I'casoiiablc r Weapon, evidciico, the fa-l, iprivcd of and intv'l- ilji'ence in .'pnve liis not have, tn all tho liarged in athin tiio iind mind lU't, Ihov ling, tlie y of the lim ; and from all ! delibor- he was a y acquit erdict." On application of the jury, after they had retired, and being brought i;ed stupid and insen- sible for some two or more da3's, eating but little. Several api)arently credible witnesses attest his sober appearance the day before, and down to nightfall, and then the next day down to within a few minutes of the homicide, between twelve o'clock M. and ten o'clock p. M. SANITY 18 PRESUMED. 383 And nmst bu Rebutted by Stitislactory Evidence. egal rules is case, to y that the le dcfend- le, or that 1, as they sctive par- licate and ler, rcsid- to the he dinner aking hor g to the ^'r liealtli. wliat she ve killed eiice that 3 of their e's sistei" until slie 1 her up a pistol. d Imme- u'iel had m, when t missed vice, the mil, and nd some ith him, anch, as jalment. d inseu- mce the 3 -within o'clock The physicians testified that the subsequent stupor may have heen the effect of excessive drinking, or of the concussion of braiu from the shots in his scalp, or from the exhaustion resulting from his long chase. The circumstances sufficiently attest that Kriel and wife had recently had disturbances ; had divided their property, and that she had taken her clothes to the house of her sister, to which place he had followed her, armed with a deadly weapon, and that without any sudden provoca- tion, or even irritating language on her part, he assaulted, shot, and liilled her. The rules of criminal law, especially as applicable to these facts, are few and simple, being founded in wisdom and experience, with a due regard to the protection of life and the preservation of society, yet humane and indulgent to the passions and frailties of human nature and the infirmities of the mind, when diseased and irrational from mental or moral insanity. It is universally written, by all authors on criminal law, that sanity is to be presumed ; and this doctrine has always been upheld by this court, especially in the two leading cases of Graham v. Commoinvealth^ and Smith v. Commonv:ealth.^ Therefore, when the State makes out an unlawful homicide with a deadly weapon, and iden- tiflos the accused as the perpetrator, it has shown all that is essential to conviction. Necessary self-defence, or misadventure, or insanity, moral or men- tal, as an excuse, comes as a defence ; and whilst irresponsibility because of insanity need not be shown beyond a rational doubt, yet as sanity is always presumed by law, this universal legal presumption must be rebutted by stitisfactory evidence ; that is, the jury must be satisfied from the evidence, whether produced by the one side or the other, that the perpetrator of a homicide not in necessary self-defence, nor by mere unintentional accident, was irresponsibly insane when the deed w.is perpetrated ; for evidence, merely raising a doubt as to mental soundness, would not be sufficient to repel the legal presumption of sanoness ; as this would be repelling a legal presumption by evidence raising a mere duabt or suspicion as to the mental condition. It is the legal duty, therefore, of all juries to convict the perpretra- tor of an unjustifiable and prima facie, inexcusable homicide, unless the evidence rationally convinces them that, at the time of the killing, the perpetrator was laboring under such a state of mental aberration and disease as to deprive him of a knowledge of right and wrong ; or if lie knew this, still to take from him the moral power to resist his morbid inclination to its perpetration. 1 20 B. Mon. 5s7. 1 Dnv. 224. 384 THE BURDEN OF PROOF OF INSANITY. Kriel r. Commonwealth. A mere doubt of sanity, however rational, is wholly insufficient l<. rebut this legal presumption, and can never be a justification to a jury to acquit ; whilst on the other hand, if the preponderating evidence con- vinces them that the perpetrator was in such a mentall}' diseased condi- tion as to destroy his free agency, they should not convict merely because they might entertain a rational doubt as to this. The rational doubt of guilt, so humanely entertained by the criminal law as a cause of acquittal, has never been extended to defences of ex- cuse because of mental or moral insanit}' ; but after the State has made out her case, with the legal presumption of insanity in her behalf, this must be overcome by a preponderance in the prisoner's behalf. A rational doubt as to whether'a homicide had been committed, or as to the perpetrator, should very x'ationally lead to acquittal ; because the law in its humanity should never permit a human being's life to ])e taken without the clearest evidence that a homicide had been committed, and that the accused was the guilty agent. But if acquittal should result from a mere doubt of sanity, then the legal presumption of mental soundness would amount to but little, if anj-thing. A mere doubt of sanity has never entered as an element into that rational doubt which should produce an acquittal. If, however, there be mental or moral insanity, however recent, to such an extent as to destroy free agency and moral responsibility, on being established by satisfactory evidence, this will excuse ; because the law, in its enlightened benignity, will not punish an iirational and irresponsible being. Malice is an essential ingredient in murder ; but this, too, is to be presumed from the violence and wantonness of the assault and character of the weapon used ; hence whence sudden pas- sion has been produced from reasonable cause, such as jostling, personal violence and other things, this has been deemed by the law, in its humanity, sufficient to repel the presumption of malice, and to palliate the offence to manslaughter ; and our criminal code gives the prisoner the benefit of a rational doubt, as to which grade of offence has" been committed. So drunkenness from mere social hilarity, though wrong in the per- petrator, may be of such a character, and to such a degree, as to show that the mind was incapable of preconceived malice or intentional homi- cide, and reduce the homicide to manslaughter ; but as this state of mind is superinduced by the wrongful act of the perpetrator, a due regard for the interest of society, and the personal security of every one, precludes it from being a satisfactory excuse, and an entire exemption from punishment. Indeed, if it appeared that intoxication DRUNKENNESS A POOR EXCUSE FOR CRIME. 385 Krlcl V. Coinmonwciilth. ifflcient u< I to a jury ience con- sed condi- et merely e criminal ces of ex- lias madi^ ehalf, this ;ted, or as jcause the ) be taken itted, and Lild result )f mental I doubt of abt wliicli ecent, to oility, on cause tlie onal and der; but 38 of till' Iden pas- personal w, in its palliate prisoner ias' been the pcr- to show lal homi- statc of If, a due of every ,n entire )xication excited the animal passions and aroused a destructive propensity in tlie accused, why should even drunkenness, in such a case, be considered I'ven a mitigating cause any more than the unchaining of a mad dog in the streets of a town, or the riding a vicious animal into a crowd, merely because the perpetrator had no particular malice at any one, or, indeed, expected death at all to ensue ; yet, if by reason thereof, any one should lose his life, this recklessness is set down as malice toward mankind in general, and the perpetrator criminally responsible in the highest degi'ee ? But it is not essential that this should now be decided. Excuse, because of drunkenness, is at all times to be received with great caution, and because so easily perverted, and the danger so great of a revenge, for real or imaginary cause of pre-existing offence or malice, under such cover. And these are the true and essential doctrines as expounded in the two recited cases of Graham y. Commonwealth, and Smith v. Common- wealth, when properly understood and construed ; for they are conso- nant with each other in premises and principle, but somewhat diverse in argument; yet the rules of law, as annoimced by this court, are identical. None of these wise and humane rules were violated in the instructions given on behalf of the State, but were essentially' contravened in those given in defendant's behalf, and at the court's own instance, all of which, however, were greatly calculated to benefit him, whilst no possible injury could result to him ; for under these instructions, the jury could not convict him at all, if they entertained a rational doubt as to his sanity ; therefore, the finding is equivalent to saying he was sane beyond a rational doubt when the offence was committed. The case of Smith recited, was upon a sudden and unexpected broil; theie- forc the court said the instruction as to the presumption of malice from the possession and use of the deadly weapon, without reference to the other circumstances, or explanation of its possession, was misleading in his case. But here the husband followed tiie wife to her sister's house, armed with a deadly weapon, which he used without any immediate exciting cause ; and he does not attem[)t to account for its possession by showing any necessity for self-defence or other reason. The instruc- tions Nos. 4 and 5, given in this case in behalf of the Commonwealrh, Were not, therefore, misleading, but a true exposition of the legal prisumptions from the facts. There are other alleged errors ; but on close scrutin\' we have failed to discover any such to defendant's prejudice ; and as the circuit judge, in his written opinion overruling the motion for a new trial, suiliciently responded to them we shall not notice them in detail. '2i 386 THE BURDEN OF PROOF OF INSANITY. State V. Lawrence. The name of the ds-ceased was alleged to be Barbara Kriel, the wife of the defendant. The evidence is that her name was Margaret. The name is, however, but descriptive, and when the person killed is also properly described as the prisoner's wife, and no objection to tlio evidence was made on that account, and no motion to withdraw it from ttie jury, and after conviction and judgment, we cannot suppose the misdescription of the given name, when placed in juxtaposition with the further description that she was his wife, could have misled him, or in any manner have prevented him from a fair trial, and therefore furnish no reversible grounds. Wherefore being satisfied that the essential errors committed in this case were calculated to facilitate the finding of the prisoner either not guilty at all, or for manslaughter only, and all for his benefit, and when the law was more favorably expounded in his behalf than any elementary writer or decision of this court authorized, and notwithstanding which, ho has been found guilty of murder in the first degree, we cannot, in the legal discharge of our duty, with a due regard to the security of society and prevention of crime, disturb the judgment. Therefore it is affirmed. BURDEN OF PROOF ON PRISONER. State v. Lawrence. [57 Me. 674.] In the Supreme Judicial Court of Maine, 1870. Hon. John Appleton, Chief Justice. «' Jonas Cutting, " Edward Kent, " Charles W. Walton, " Jonathan G. Dickekson, [J'^dges. " William G. Barrows, " Charles Danforth, " RuFUS P. Tapley, Burden of proof on defendant- — To establish the defence of insanity, the burden is on the defendant to prove by a preponderance of evidence that at the time of committing the act he was laboring 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, that he did not know he was doing ^vhat was wrong. Partial Insanity, if not to the extent above indicated, will not excuse a criminal act. STATE V. LAWRENCE. 387 The Facts of the Case. Indictment for murder. It appeared, on the part of the government, that Elmira Atwood had been living at the house of one Mrs. Marsh, on Hammond Street, Ban- gor, some four weeks prior to tlie murder ; that the defendant Lawrence went tliere more or less; that on Saturday, January 1, 1870, he went tlicre considerably intoxicated, conversed with Elmira Atwood, and called her by an opprobrious epithet, she answering, that if he called her that, she would make him prove it ; whereupon he went away with- out any reconciUation taking place between them at that time ; that on the next (Sunday) evening, he went there again ; that he, living by himself on Main Street, and Mrs. Marsh having been in the habit of preparing food for him, handed her a little tin pail, and requested her to put up some hashed fish ; that he asked Mrs. Marsh if she were alone ; that Mrs. Atwood had gone into a little bedroom ; that after Mrs. Marsh went into the pantry, Lawrence went into the bedroom, where he saw Mrs. Atwood ; that Mrs. Marsh hoard voices talking, but could not understand what was then said, until she heard Mrs. Atwood say, " I will, I will, I will, John." That when Mrs. Marsh came out of the pantry, she saw Mrs. Atwood coming out of the bedroom, Law- rence having already come out, and gone across the kitchen, facing the door as if going out; that Mrs. Atwood said, "Oh, the pistol! the pistol!" and came near fainting; that Lawrence turned round, drew out his pistol, and without taking any more aim than merely raising his arm and pointing it toward Mrs. Atwood, fired twice ; that Mrs. Atwood fell ; that Mrs. Marsh rushed out of the house, and heard two more pistol shots, at least, fired after she went out ; and that Lawrence passed Mrs. Marsh, going out of the house as she returned. It also appeared that about seven o'clock on the same Sunday evening, Law- rence was found in his room, on Main Street, with his throat cut ; that he still had a knife in his hand ; that when found, his first words were, " Do you think I am cut enough to die? " " Is that damned whore dead?" "I hope she is. If she is, I can die happy?" It also appeared that the defendant was jealous of Mrs. Atwood, who, he alleged, had agreed to marry him, and then went with other men. The defence was insanity, and considerable testimony tending to show the condition of Lawrence at the time of shooting Mrs. Atwood, and before and afterwards, was introduced. The presiding judge, inter alia, charged the jury as follows: — " Was it a case of jealousy, or was it an insane delusion? You are to determine whether insanity of any kind existed at the time of the 388 THK HUKDKN OF IMtOOF OF INSANITY, St:Ui' r. LawreiuH'. homicide. If it is not established, then the defence of insanity fails. and Ihe case stands upon the facts. "If you find a general or partial insanity, then what is the ruU? If you take the monomania upon tiie subject of the woman, as he expresses it, 'going back upon him,' if there was an insane delusion upon that subject, then how far did that excuse him for the killin a Avrong act and a criminal act, and one that he will be subject or liahle to punishment for doing. In order to be responsible, he must have sufficient mind and memory to understand and remember the relation he stands to others, and others to him, and that the act he is doing is con- trary to the plain dictates of right, wrongfully injurious to others, and a violation of the dictates of duty. If there be partial derangement, or insanity of mind, so that it is not in all respects perfectly sane and sound, yet if not to the extent above indicated it will not excuse a criminal act. In other words, a man may be a monomaniac, his mind may be disordered, and to a certain extent, it may be proved that he is of unsound mind, and yet, if he has mind and understanding enougli an 1 is not carried away so but that he understands the difference be- t vecn right and wrong as to the act he is then doing — that is to say: if the man knew that what he was doing was vrong, and he was liable to be punished for it, and that the act would nc > be excused, then he is subject to punishment, although there might be some partial derange- ment. "But if he does not understand the relation of parties, as, for in- stance, where a son killed his father, and was so deranged that he did INISANK DELISIONS. 389 Illiistriitiuns. aiiity fails. the ruk? itin, as lie B delusion lie killiim? 'ollow that n on that covers the , does not to, if he is inless it is :, and had the point isanity, it )a(,'ity and md wrong iiowlcMlec s doing i> b or liable nust have elation he ig is con- hers, and ngemenc, sane and excuse a his mind that he is g enougli ence be- s to say : ms liable hen he is derange- 5, for in- i he did not know it was his father, he could not be responsible. But if the party feels and knows tiuat he is doing wrong, altiiough ho may have wrought himself up by hatred and jealousy to a determination to kill, yet if it appears that at the time he had capacity sufBcient, and did iinow he was doing wrong, as before explained, he would not be excused. The rule is as I have stated. If there be a partial insanity, yet if it is not proved he was insane and unsound to the extent I have stated, it will not excuse criminal acts. " I am requested, by the counsel, to give some instructions : — 1. " 'That if, at the time of the commission of the act, the defendant was under the influence of an insane delusion, impelling to the commis- sion of the act, for which he had no rational motive, notwithstanding he may liave appeared able to distinguish right from wrong, they shall find for the defendant on the groimd of insanity. ' " On that request I will say if he was under an insane delusion, it would be a defence if the act, under that delusion, would be justifiable in assuming the delusion to be a fact. If he acts under the delusion, for instance, that he has a right to kfill, then he is justifiable ; but if ho acts under another delusion, not the cause, then he may not be. For instance, take the case of Abraham offering up his son Isaac. Where ho ha I a special commission to do it ; he had faith, and believed it was tlie c :)minand of God, and was about to do it. Now suppose some gentleman here should think he heard, in the night, a voice coming to him distinctly and audibly and saying, ' Take your son and build a pile and sacrifice him,' and he fully believed it, and took his little son and carried him out the next day, and actually sacrificed him. " There insanity would be fully proved, because he actually believed it as much as Abraham believed that it was the commandment of the Almighty. A thing would bo excused from delusion, where it would be excused if that delusion were true, as before explained. I do not think that the evidence in this case calls upon me to give any ruling as to a case of blind, unreasoning impulse to take life irrespective of mo- tive as to the person assaulted, and having no connection with any ex- isting relation between the assailant and the assailed, which impulse overcomes reason, power of the will, conscience, and all fear of the consequences, and all power to resist the impulse to kill, although the person might not be shown to have lost all sense of right and wrong. That would be like cases read by the counsel for the defence in his very clear and able opening. A French woman had a desire to kill young children, — an insane desire to kill, without any jealousy, and without any occasion whatever. There have been cases of that kind, and it is a 390 THE BURDEN OF PROOF OF INSxVNITY. State V. Luwrcnc'i', question how far that impulse might excuse. I think there is nothing of the kind shown in this case. 2. " Tliat in capital cases the prosecution must i)rove the felonious killing, and if the jury have a reasonable doubt of the murder, tlio verdict must be for acquittal. 3. " Tliat the plea of insanity does not deprive the accused of tiie benefit of this principle of law, and does not relieve the government from proving, beyopd a reasonable doubt, tlie guilt of the prisoner." On tliese requests the judge said he had already given them in his charge, but would repeat the substance of what he had said, viz. : That tlie government was not relieved from proving the guilt of the accused bej'ond a reasonable doubt by such plea, or on any other ground ; but if it had proved beyond such doubt, all that was required to constitute the offence charged before any evidence of insanity was offered ; that insanity must be es*;ablislied by a preponderance of evidence as before fully stated and explained in the charge. 4. " Tliat where insanity is offered in defence, it is not necessary for the prisoner to prove his insaniU' by* a preponderance of testimony, but on the contrary, if the jury find a reasonable doubt of the sanity :il the time of the commission of the act, there must arise in their miiuls a doubt of the malice, which alone constitutes murder." By the Court : " I give you no other ruling than what I have given you before." 6. " In this case where insanity is set up as a defence, the court is requested to instruct the jury that the}' are to be satisfied from all tlu' testimony in the case, beyond a reasonable doubt, of the guilt of the prisoner, and if tliey have a reasonable doubt of his sanity, thev are bound to acquit." No new instruction was given under this request. G. " Will the court also instruct the jury that if thej' find that at Iho time of the commission of the act the defendant was laboring under au insanity which would excuse him from legal responsibility for its com- mission they will render a verdict of acquittal, whether or not they arc satisfied as to the causes which produced the insanity or its particular form." The judge stated, in regard to this request, that he had already instructed the jury, that if the prisoner was laboring under insanity at the time of the commission of the act, sufficient to excuse him, they will acquit him, wiiatever may be the cause of the iiisanitj-, or whether ascertained or not. The judge then proceeded as follows : " Tliore is only one other thing I wish to call your attention to, and I think it is my dut}'' to say a word upon it. That is the non-nroduction of the prisoner in this case. It is PUrSONEIl DECLINING TO TESTIFY ON TUIAL. 31)1 is nothing felonious urder, tlio 3Cl of tlU! )vernment soncr." em in his iz. : That e accused und; but constitute red; tliat as before jssary ff)i- aony, but sanity at }ir minds le Court : J." court is n all tlic It of the ty, they ider this lat at the under an its coni- they arc articular I already sanity at lim, they whether ler thing y a word e. It is Till! InforenccH to be Drawn Tlu-rcfrom. only a few years since the prisoner was allowed to testify in criminal eases. The law has been altered, giving the prisoner the privilege of testifying if ho chooses. He is not bound to testify to anything crim- inating himself, or bearing on tlic case. But if he is not put ui)on the stand you must necessarily understand and know the fact that he is not put upon the stand to state his knowledge to the jury. The jiirj' would not be bound to, and should not convict simply on the ground that the prisoner does not testify. But it is a fact in the case, more or less potent or important, as you may consider it. In this case the counsel say tlie plea being insanity, they did not propose to put on the prisoner liimself. Ordinarily when insanity is allegisd to have continued, if he was a crazy man when tried, this suggestion would have more weight than when not laboring under insanity at the time of the trial. While lie was not obliged to go on, you are not to draw forced inferences. Perhaps he might have explained his conduct more fully, but he chose to rely upon the evidence presented. At all events it is for you to con- sider that he did not choose to go on to the stand, and the government say there aro many facts that he might have explained." The jury returned a verdict of guilty of murder in the first degree ; and the defendant alleged exceptions. A. Knoides and John F. Godfrey^ for defendant. W. P. Frye, Attorney-General, contra. Danforth, J. The instructions and refusals to instruct in relation to the responsi- bility of the insane, complained of in the first exception, are in strict conformity to the most approved judicial authorities. ^ It is possible that the increased knowledge of the nature and effects of insanity may, in appropriate cases, require instructions more in harmony with the requests in this case. But, however this maybe, a careful examina- tion of the testimony, which is reported in full, shows that this is not one of those appropriate cases, and that the respondent is not, in any legal sense, aggrieved by the instructions given or withheld upon this point. Ho of the last instruction excepted to, if such it may be called. It would seem to be rather a suggestion of a fact already existing iu the case, than a ruling in a matter of law. That the prisoner did not go ui)on the stand is a fact in the case, and is made no more or less so, simply because the presiding judge saw fit to call the attention of the jury to it. ■ Unltcil states V. Ilolmes, 1 Cliff. 98 ; Com. r. llogers, 7 Mete. 600, and cases cited. ;j92 THE HURDEN OF TUOOF OF INSANITY. State V. Ltiwrcnco. It could Imrdly have escaped the notice of tlie jury if tlio judi^c had not nlhuk'd to it in liis eljar<;e. It will exist in every case, so Ions i'-' the act permitting parties to testify remains the hiw, unless tlie parly himself chooses to make it otherwise. It will, too, have its le^itimaU' effect upon the minds of the jurors, more or less convincing, a(fCordiiig to the circumstances of each case, whatever may be the ruling of the court in regard to it. Belief is contiollcd by i)rinciples more potent in their action than artificial rules of evidi'uct'. When a person has an opportunity to testify in relation to a matter of which he has knowledjif, and in which he is deeply interested, and refuses to do so, such refusal will have its weight, modilied only by the accom|)anying circumstances. We act upon such testimony constantly. It is the instinct of our nature, and will not be eradicated by the ruling of any court. If this leads to injustice, the wrong is inherent in the law permitting parties to testify, and the remedy is with the Legislature aloiu". The remaining question as to the burden of proof in criminal cases, where insanity is set up as a defence, is one of much more dilliculty, though, until recently, the authorities seem to have been uniform in im- posing it upon the defendant. Quite lately doul)ts have been suggested, and in a few instances, judicial tribunals, entitled to the highest re- spect, have come to a conclusion the reverse of the former decisions. As a matter of principle, the question lies in a very narrow compass. The difficulty is in the starting point, in determining the premises. These b iiijr once settled the conclusion is evident. Those who maintain that the burden is upon the prosecutor, contend that sanity is an elemental part of the crime, and is a necessary part of its definition, and as such the jury must have the same satisfaction of its truth as of any other part. It is undoubtedly true, that there can be no guilt except as the result of the acti(jn of a sound mind, there can be no crime except there he a criminal ; nevertheless there is a palpable distinction betwrii t two; one cannot exist without the other, still they arc t > !i i not oii'- and the same. The person doing the act is not the a .. lie may (jr rna\' not be responsible for the act, but in no sense lie be the act. So, too, whether he committed the act, is one question, .md wh* iherhe is responsible for that act is another and entirely different lustion. Now, it should not be forgotten that we start with the legal presump- tion that all men are sane and responsible for all their acts, in other words, that no man is insane and irresponsible, precisely as we do with the proposition that no man has legal authority for doing that which otherwise would be a crime or a trespass. Hence, the statute defines murder to be "the unlawful killing of a human being, with malice afore- th.> .sai Will of sha tri'i the oiiii I'LEA OF Nf)T (JllLTY. 3S»3 And Plea of Insanity Dl.sthifiul.shetl. may 10 acl. lorlie stion. bump- otlicr witli ■\vlucli efi lies fore- tlioiiLilit, c'itlier express or implied." Here are all llie elements neces- sary to constitute the crime assuminjj a responsible agent. Not one word, as to what is or is not required to make him responsible, and so of all other statute definition. Whoever shall do the certain acts set out, sliall be guilty. Here, as everywiiere in the law, sanity is assumed and treated as an essential attribute of humanity. The indictment follows the statute, setting out all tlie acts deemed essential to the crime, but omitting all reference to the capacity of the accused. Of all that is set out in the indictment he is presumed innocent, and that must he proved and notliing else. When that is proved he isconvictelication at least, leads to the same conclusion. By the Revised Statutes of 18.j9,i it is provided that, 'when the grand jury omits to find an indictment against any person arrested by legal process to answer for any offence by reason of insan- ity, they shall certify that fact to the court ; and where a traverse jury, for the same reason, acquits any person indicted, they shall state that fact to the court when tliey return their verdict." And in cither case, be is to be retained in prison or the insane hospital till restored to his right mind, or delivered according to law. It can hardly be supposed that the Legislature expected or intended that this jury s' uld return as a fact, the insanity of the prisoner when they have onb a reasonable doubt of his sanity, or that he should be detained in custody till re- stored to his right mind, when there is not sufflciont proof to make even a prma/acie case that he is otherwise than sane. Our conclusion is, that npon this point, as well as upon the others, the ruling was sulii- cieutly favorable to the prisoner. Exceptions overruled Appleton, C. J. ; Cttting, Walton, and Dickeuson, JJ., concurred. BURDEN OF PROOF — OPINIONS OF WITNESSES — INSANITY PRE- SUMED TO CONTINUE — TEST OF INSANITY — INSANITY OF EELA- TIVES. Baldwin v. State. [12 Mo. 223.] In the Supreme Court of Missouri, October Term, 1848. Hon. William B. Naptox, " William Scott, ** Preistly H. McBride, Judges. 1. Burden of Proof. — The prisoner jileadiiig insanity as a defence to crime must estab- lish it lO the satisfaction of the jury. 2. Opinions of Witnesses as to the prisoner's insanity are admissible. 3. Insanity Proved to Exist Presumed to Continue. —Where it is shown that the prisoner was insane at any time pnor to tlie commission of the crime charged, the law presumes the continuance of such insanity until a lucid interval, or a rcsioratioa to reason i& proved. 1 Ch. 137, sect. 2. 396 THE BUKDKN OF I'liOOF OF INSANITY. Baldwin v. State. 4. The Test of Insanity is the ability to distinguish between the right and the wrong of the act charged. 5. Where there is Evidence of the prisoner's insanity, the fact that some of his ances- tors were insane is relevant. unl hisl coi Appeal from St. Louis Criminal Court. The prisoner was convicted of the murder of his brother-in-law, Victor Mathews. Sharj), for appellant, Stingfellow, for the State. McBride, J. — (Omitting rulings on other points.) When the evidence closed the defendant's counsel asked the court to instruct the jury as follows : — 1. That if the jury believe from the evidence that the defendant was of unsound mind previous to the time at which the offence charged in the indictment was committed, and that derangement or unsoundness of mind was such as to leave him without sufficient reason, judgment, and will, to enable him to distinguish between what was right and what was wrong, with regard to the particular act in question, the killing of Mat- thews for violence used upon his, defendant's, sister; and unless he knew that the act was u crime against God and nature, they must find him not guilty. 2. If the jury believe from the evidence that the prisoner acted under a false and insane, but sincere belief that the deceased had threatened to kill his sister, and that from thif cause, he, under an uncontrollable im- pulse, killed Mathews, they must find him not guilty. 3. If the facts are such as to satisfy the jury that the prisoner had been laboring under a delusion or particular insanity, or if from his acts and conduct testified to by witnesses, they believe him insane, or resting under a fixed delusion upon tiie jjarticular act in question for some time previous to the killing of Mathews, the presumption of law is, that he was so insane when the act was done. 4. If at the time the piisoner fired the pistol at Mathews, he was not conscious of doing wrong, and had not self-control to prevent him from doing the act, they should acquit the prisoner. 5. As to the question of insanity or unsoundness of mind, the true point for the jury is not whether the prisoner was capable of distinguish- ing between right and wrong generally, but whether he knew in the par- ticular case, with reference to tlio act in question, that he was committing an offence against the laws of God and nature. 6. That if the evidence in the cause is such as to satisfy the jury that the prisoner was insane or of unsound mind previous to his going to Ar- kansas, and previous to the killing of Mathews, they must acquit him, BALDWIN V. STATE. 397 Instructions. ihe wrong of t his anccs- convicted 5 court to dant was larged in idness of lent, and v^hat was of Mat- iiiless he mst find }d under tened to able im- >ner liad las acts :• resting me time that he vas not m from he true nguish- lie par- mitting ry that to Ar- it him, unless they believe from the evidence, that the prisoner had recovered his reason, and was of sound mind at the time the offence charged was committed. 7. That if the preponderance of evidence was in favor of his insanity or unsoundne? of mind — if its bearing as a whole inclined that way, they should ft-.d aim not guilty. 8. That a.. '.' is difficult to draw the line of demarkation and say where soundness of mind ends and insanity begins, the jury should be gov- erned by facts and circumstances showing the condition of the prisoner's mind, and if from those facts, as stated in evidence, the jury believe that the prisoner rested under a delusion that Mathews had attempted to kill his sister, and did intend to kill her, and that from that delusion he was left without sufficient reason, judgment, and will, to know that the offence was a crime against God and nature, they should acquit him. 9. That although facts may have been proved which, in the absence of insanity or unsoundness of mind, or the proof of it, might go to show malice in the prisoner, yet if the killing was done while insane, or rest- ing under a delusion that was fixed in his mind, which left him without the use of his reason, judgment, and will, at the time of the killing, the malice is not presumed, but the existence of it rebutted, and the jury should acquit. 10. That every other question is merged in the questio*^ whether or not the prisoner was insane at the time of the killing, the only question for them to determine is, was he insane or of unsound mind with refer- ence to the particular act in question, and at the time the offence is charged to have been comi' itted, if so, he should be acquitted. 11. In order to constitute a crime, a man must have intelligence and capacity enough to have a criminal intent and purpose, and if his reason and mental powers are either so deficient that he has no will, no con- science, no controlling mental power, or, if through the overwhelming violence of mental disease, his intellectual power is, for the time, ob- literated, he is not a responsible moral agent, and is not punishable for criminal acts. 12. That if the jury believe from the facts and circumstances testi- fied to by the witnesses, that the defendant was of unsound mind pre- vious to the killing of Mathews, and up to the time when the act wns done, and that unsoundness of mind was such as to fix a delusion upon tlie mind of the defendant upon the subject of violence to his sister, which left him incapable of judging between right and wrong with reference to that subject, he should be acquitted. 398 THE BURDEN OF PROOF OF liNSANITY. Balchviu v. State. 13. That in forming a conclusion as to the guilt or innocence of the defendant, the jury should consider the state and condition of the pris- oner's mind prior and subsequent to the killing, and if from all the evi- dence in the case, they believe him of unsound mind at the time the act was done, they should acquit. 1-1. That the evidence of physicians examined as experts, is compe- tent evidence to assist them in forming correct opinions of wliat unsoundness of mind is, and what the state of the prisoner's mind now is. 15. That if the jury have a reasonable doubt resting on their minds of the guilt of the defendant, they should acquit. 16. That the jury have the power to find the defendant guilty of a less offence than the one charged in the indictment, if from the evidence in the cause they believe him guilty of such less offence. 17. The rule of law is, that the whole of a confession must be taken together, if introduced by the prosecutor, and it is entirely a question for the jury, how far and to what extent the confessions of the prisoner are proved. All of which said instructions the court refused, except the last ; to which refusal the defendant excepted. Thereupon the court gave the jury the following charge : — " Gentlemen of the jury: Tlie evidence in this cause and the argu- ments of counsel on behalf both of the prisoner and the State having been now concluded, the weighty and most responsible duty is devolved upon you of saying upon your oaths, from the evidence before you. whether the defendant is or is not guilty of the crime of murder, with which he stands charged. To the commission of any crime there is necessary, not only the doing of an unlawful act, but the possession of adequate mental capacity to know that the act is wrong at the time of doing it, and the power of choosing between the commission of the act and its non-commission. "In accordance with this definition, the law of the present case may be considered under two branches: (1.) ^Vhether the act charged in the iiiiliotment has been committed, as therein charged, and if so, (2.) wliether at the time of committing it, the defendant was capable of committing crime; in other words, what rules and principles of law ought to govern you in passing up;)n the defence set up in the case. ' 'And here it may be proper to remark that the statutes of this State do not permit the court to express an opinion upon the evidence given upon this trial, but only to place liefore you such legal rules and princi- ples applicable to the case as ought to govern you in its decision. Fii si\ wl coi Th am CONFESSIONS AS EVIUENCE. 399 Burilen of Proof of Insanity. lice of the f the pris- 11 the ovi- me the act is compe- of what mind now eir minds iiilty of a i evidence ; be taken I question i prisoner e last ; to the argu- te havinii dovolved ore you, ler, witli there is jssion of time of f the act I may be d in tlie so, (2.) pable of ijiles of ;he case. lis State 36 givon \ princl- lecision. First, then, in regard to the commission of the act charged. It is exclu- sively yourprov'ice, gentlemen of the jury, to say from all theevidenct; \vhi(.h has been given before you, whether the defendant did or did not comu.it the act charged in this indictment to have been done by him. The indictment charges the defendant with murder in the first degree, and if from the evidence you find that the defendant committed the act charged in the indictment, in manner and form as therein charged ; that he committed it wilfully, deliberately, i)remeditatedl3', and with malice aforethought, that is, without legal justification or excuse, and under circumstances showing wickedness and depravity of heart, you ought to find him guilty, unless you shall believe from the evidence, that at the time of committing the act, the defendant was incapable of committing crime. " It is a rule of law, founded in reason, that the confessions of a de- fendant, when voluntarily made, are evidence against him, because common experience proves that a man will not, without motive for doing so, confess facts to his disadvantage unless they are true ; such confes- sions are always strengthened by circumstances corroborative of their truth. It is also a rule of law that when tlie confessions of a defendant are given against him, the whole of what he says at the time of such confession, as well that which is in his favor as that which is against him, must be taken together as evidence of the facts stated ; but it is the right of the jury to disbelieve and reject any portion of such statements, which the jury may believe either intrinsically improbable, or contradicted by other and more satisfactory evidence. '* If, gentlemen, upon consideration given in the cause, you shall en- tertain a reasonable doubt of the commission of the act by the defend- ant as charged in the indictment, it will be your duty, gentlemen, without proceeding farther, to acquit the defendant. But if, from the evidence, you are satisfied beyond a reasonable doubt that the act as charged in the indictment was committed by the defendant, it will then become necessary for you to proceed to the consideration of the defence here set up, to wit: that at the time of the commission of the act the defendant was, by reason of insanity, incapable of committing crime. " Before proceeding to lay down legal rules to aid you in the decision of this question, or rather the first legal rule which it is incumbent on the court to bring to your attention, is that the law presumes every man who has arrived at the years of discretion to be sane and capable of committing crime until the contrary is shown ; so that the State, after proving the unlawful act, need offer no evidence whatever of the sanity 400 THE BURDEN OF TKOOF OF INSANITY Biikhviii V. Stiite. of the defendant, but may rest upon the legal jiresumption of sanity until the defendant shows the contrary. "This defence is emphatically one which the defendant must make out, and it must be made out to the satisfaction of your minds. For it the evidence merely shows a case of doubt where the defendant miglit or might not b" insane, this is not sufHcient to authorize an acquittal. "I repeat, if the evidence shows merely that the defendant miglit have been insane at the time of the commission of the act, but does ndt show satisfactorily to your minds that he was insane at that time, this is not suflicient to warrant an ac(iuittal. "Another point to which I think it necessary to "all your attention, gentlemen, is, that in order to constitute a defence to this charge, in- sanity must not only be proved to have once existed, but it must lie shown to have existed at the time of the commission of the unlawful act. "The question, therefore, for your decision is not as to the mental condition of the prisoner at the present time. This is entirely imma- terial, except so far as it may have a tendency to show in connection with other evidence, that he was insane at the time of committing the act. I sa}-, in connection with other evidence, for even the most posi- tive and conclusive proof of the defendant's present insanity would bo insufficient to warrant his acquittal, without evidence of his insanity at the time of committing the act. For it by no means follows that bo- cause a man is found to be insane at o»ic * 'me that, therefore, he has always been Insane, or that therefore he was insane at any prior point of time. But if j-^ou find from the evidence that the defendant was in- sane at any time prior to that of the alleged commission of the act of homicide, the law in such case presumes the continuance of that in- sanity, until a lucid interval or a restoration to rexson is shown. But if you find from the evidence that after the occurrence of the insanity. and before the commission of the act charged, a lucid interval did take place, then no presumption of the existence of insanity at the time of the act can arise from the proof of such former insanity. " In regard to t'le degree of insanity necessary to exempt an individ- ual from responsibility for criminal acts, the law is that his mind must have been so far impaired or destroyed that he was unconscious at tlio time of committing the ant that it was wrong, and that he ought not to do it, or he must have been so irresistibly impelled to the commission of the act, by insane impulse, that he had not the ability to resist that impulse, to control his action, and choose between right and wrong. I repeat, therefore, if you find from tie evidence that the defendant com- TEST OF INSAMTY 401 What is an Insane Delusion? niitted tlie act charged, llie question for you to determine is, wiicthcr at tliat time ho was capable of knowing tliat tlie act whicli be was com- mitting was an offence against tlie laws of God and man, and bad at ihat time the power of choosing between good and evil in reference to tliat act. If, though laboring under hallucination or i)aitial insanity, his mind was not so far clouded or destroyed as not to know the act was wrong, be cannot be excused for the commission of the act. "In determining this question, gentlemen, you ought carefully to con- sider and review all the facts and circumstances given in evidence, to ascertain whether, at the time of committing the act, the defendant evinced a knowledge or consciousness that he was doing, or al)out to do, .1 Avrong and criminal act. " When monomania, or partial insanity is set up as a defence to the charge of crime, in order to constitute such defence, it is necessary that the subject of insanity should lead to the fatal act ; in other words, there must be a connection between the crime and the insanity, so that, but for the existence of that insanity, the crime would not have been committed. In the present case you ought first to consider whether the defendant was really under the insane delusion that the deceased, Mathews, bad abused and ill treated his sister, or whether this state- ment was merely a falsehood invented by him after the act, as an excuse for it. "To make this an insane delusion, it must have had no existence in fact ; the defendant must have believed it true, and have been led to tliat belief under the influence of insanity, and without such reason or cause for believing it, as would have influenced a sane man ; for if the fact had existence and the defendant knowing it, took the life of ^Mathews for that reason, this would be evidence of killing with malice, and not from insanity. ' ' In the second place you ought to consider whether, supposing such insane delusion to bave existed, the defendant was under the still fur- tlier insane delusion, that for tbose supposed injuries aud indignities to his sister, he bad the right to take the life of Mathews ; in other words, that to take the life of Mathews in revenge for sucli injuries, was not against the laws of God or man, but was right and proper. For you will per- ceive, gentlemen, that the imaginary existence of these facts, under the inlluence of insane delusion, could furnish no farther justification or ex- cuse for the act, than the real existence of those facts would have done ; so that unless the defendant was, by his insanity on this subject, de- prived of the mental power of drawing the proper conclusions in regard to these facts ; in other words, deprived by bis insanity of the power 26 402 THE BURDEN OF PROOF OF IXSANITY H;il(l\vin v. State. of knowing that these facts did not authorize the taking of life, liis deluaion upon the subject of these injuries can form no excuse for hi> act. " The fact that some, or all of a person's ancestors have been insane, does not of itself prove that person insane ; but where there is some direct evidence of insanity, it serves to increase the probability of insanity. '•The opinions of medical men, gentlemen, should have weight with you only so far as their means of knowledge and correct information upon the facts testified to, show them deserving of it. " In conclusion, gentlemen, if you arc satisfied from the evidence, be- yond a reasonable doubt, that the defendant committed the act charge d upon him in the indictment, and in the manner and form therein stt forth and charged, and if it has been shown to the satisfaction of your minds at the time of committing the act, he was [not] ^ofar deprived of reason as not to know that the act which he was committing was wronsx. and was not so far deprived of will as not to possess the power of choosing between right and wrong in regard to this act, you ought, i;. such case, to find him guilty of murder in the first degree. But if, on the other liand, from the evidence, j'ou have a reasonable doul)t of the commission of the act as charged ; or, if j^our minds are satisfied from the evidence, that at the time of the alleged commission of the act of homicide, the defendant had not the possession of reason sufficient to know that the act was wrong, or impelled by insane impulse had not the power of refraining from the commission of the act, 3'ou ought in any one of the cases last mentioned, to acquit." To the giving of which the defendant's counsel excepted. The charge given by the court to the jury is comprehensive enough to cover the whole case, and we do not perceive any legal objection to it. It embraces most of the principles contained in the instructions asked for by the defendant's counsel ; those not embraced in it are either wrong in principle or have no particular application to the case under consideration ; therefore we see no error on this point. After the jury had been charged by the court and retired to their room to consider of their verdict, the^'^ returned into court and made the following inquiry of the judge ; " The jury wish to know, whether they can find the prisoner guilty in any other degree than that charged in the indictment for murder in the first degree." The court replied: " Not if you find from the evidence that the defendant committed the act charged upon him in the indictment, and committed it wilfully, de- liberately, premeditatedly, and with malice aforethought, and in all otli til wr< 1)0) mii thf gui tail to1 DEGREES OF MrUUEH. 403 Power of Jury as to tlio Statutory Crime. f life, liis ise for h\> en insane, re is some (ability of t with you tion upon dence, be- lt charged lierein st t in of your iprivcd of as wrouji-. power of ought, ii; ee. But ble doubt } satisfied of the act sufficient had not ought in e enough Jction to ructions ire either se under to their nade the her they irged in replied : tted the illy, de- :1 in all other respects, in manner and form as charged in the indictment ; and that at the time of so committing the said act, he knew that it was wrong and that he ought not to do it, and at the same time had tlic ])ower or will to choose between its commission and its non-com- mission." It is insisted that the court committed error in not informing tlie jury that they had a right, under the law of the land, to find the defendant guilty of murder in the second degree or of manslaughter. We enter- tain a different opinijn, and think that the court very properly responded to the inquiry of the jury. The defendant stood charged with munler in tlie first degree. He impliedly admitted the taking of the life of the deceased and placed his defence upon the fact, that, at the time he com- mitted the act, he was incapable of crime by reason of being insane, this defence he was bound to make manifest to the jury, otherwise, the crime with which he stood charged remained confessed, without any palliating or extenuating circumstances to reduce it to an inferior de. gree of crime. The jury had, therefore, no legal discretion ; they were bound either to convict the defendant of murder in the Oi-st degree, bo- cause he had not established the truth of his defence ; or, having proved to the satisfaction of the jury that he was insane at the time of doing the deed, they should have acquitted him of all crime. It is not like a case where a defendant is charged in an indictment with murder in the lirst degree, whilst the evidence proves the killing to have been done under circumstances which makes tlie offence only manslaughter ; in wliich case the jury may find a verdict for manslaughter. Our statute divide; murder into two degrees, first, when committed by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in the perpetra- tion, or attempt to perpetrate, any arson, rape, robbery, or other felony ; and second, all other kinds of murder at common law, not declared by statute to be manslaughter or justifiable or excusable homicide. The evidence on the part of the State, consisting mainly of the confessions of the defendant, voluntarily made, make out a case coming witliin tlie first degree of murder, and although the duty is a disagreeable one to find an individual gnilty of the crime of murder in the first degree, the pen- alty of which is a forfeiture of life, yet the jury were bound under their oath so to find in the case, unless they were satisfied from the evidence? that the defendant was insane at the time he committed the act. If the truth of the defence made was thus established, the defendant was en- titled, upon the principles of law, and not through the clemency of the jury, to an absolute acquittal. It is a case in which there is no middle 404 THE IIUUDKN OF TUOOF OF IXlSAMTV. Hiildwin V. tStiitf. ground to occupy, no legal compromise to make, no discretion vested in the jury ; they must cither find the defendant guilty as charged and confessed, or acquit him on the ground, tliat by reason of insanity he is irresponsible to the laws. There is only one other question which we deem it necessary to notice, and which was raised on the examination of tlio evidence. 'I'lio father of the defendant being under examination, testified as to tlir state of defendant's health for some time i)riorto the commission of tlie act charged ; also as to his conduct and otlier circumstances ten- to ; ■when the s Avhich he I known of )!• was not From the s goini; to us such as use I did IS and aii- objoc'tions point, the mined by Admr. v. of the in- )pinion of le time of 3 and oon- idopt that my : It is to facts, regard to Dnned an :ceptions. positive these no man can sanity of by other than direct proof. The precise inquiry then is, must the evidence be restricted to the proof of other facts, coming witiiin tlie knowledge of tlie witnesses, and from wliicli the jury may draw an inference of sanity or insanity, — or may the Judgment and belief of the witnesses, founded on opportuuities of personal observation, be also laid before the jury, to aid them in forming a correct conclusion. We understand that this is a matter on which different judges have ruled tlifferently on tlie circuits, •md it is important that a uniform rule should be settled in regard to it. The point was not determined in Crowell v. 7j.7/7r, ' nor are we aware of any direct and authoritative decision, which supersedes the necessity of recurring to general principles and legal analogies to ascertain what is riglit. In the first place, it seems to us that tlie restriction of the evi- dence to a simple narrative of the facts, having or supposed to have a l)earing on the question of capacity, would, if practicable, shut out the ordinary means of obtaining truth; and, if freed from this objection, cannot in practice be effectually enforced. Tiie sanity or insanity of an individual may be a matter notorious and without doubt in a neighbor- hood, and yet few, if any, of the neighbors may be able to lay before the jury distinct facts that would enable them to pronounce a decision thereon, with reasonable assurance of its truth. If the witness may be permitted to state that he has known the individual for many years ; has repeatedly conversed with him, and heard others converse with him ; tliat the witness had noticed in these conversations that he was incoher- ent and silly ; that in his habits he was occasionally highly pleased and greatly vexed without a cause; and that in his conduct he was wild, irrational, extravagant, and crazy ; what would this be but to declare the judgment or opinion of the witness of what is incoherent or foolish in the c(jnversation ; what reasonable cause or resentment, and what the indicia of sound or disordered intellect? If he may not so testify, biitmust give the supposed silly or incoherent language, state the de- grees and all the accompanying circumstances of highly excited emo- tion, and specifically set forth the freaks or acts, regarded as irrational, and this without the least intimation of any opinion which he has formed of their character — where are such witnesses to be f onnd ? Can it be supposed that those not having a special interest in the subject shall have so charged their memories with those matters, as distinct inde- pendent facts, as to be able to present them in their entirety and sim- plicity to the jury? Or if such a witness be found, can he conceal from the jury the impression which has been made upon his own mind ; and 1 3 Dev. 355. 400 THE IIUUUEN OF rUOOF OF INSANITY Baldwin V. State. when this is collected, can it be doubted, but that his judgnient has been inllueiiced by many, very man}', circumstances, wliicli lie lias not com- municated, wliicU he cannot comnninicatc, and of which lie is hinisill not aware? Wc also tlilnk tlierc is an analojry in the investigation of questions of this kind and in the investigation of otlier questions, wlicre positive and direct evidence is unattainable, and in wliich tlie rule of evidence is well established. Of this kind are (lucstions of personal identity and handwriting. Mere opinion as such is not admissihle But where it is shown that the witness lias had an op[)ortunity of ol»- serving tiie cliaracter of tlie person or the liaudwriting, which is sought to be identified, then his Judgnient or belief, framed upon such observa- tion, is evidence for tlic consideration of tlie juij ; and it is for tliem to give to this evidence that weight, which tlie intelligence of the witness, his means of ol)servation, and all the other circumstances attending his testimoii}' may, in their judgment, deserve. And why is this, but be- cause it is iniiiossible for the witness to specify and detail to the jury all the minute circumstances by which his own judgment was deter- mined, so as to enable them by inference from these to form their judg- ment tlicreon. And so it is in questions respecting the temper, in which words have been spoken or acts done. Were they said kindly or rude!}-, in good humor or in anger, in a jest or in earnest? What answer can bQ given to these inquiries, if the observer is not permitted to state lii- impression or belief? Must a facsimile be attempted, so as to bring before the jury the very tone, look, gestures, and manner, and let tlieni collect thereupon the disposition of the speaker or agent? It is a well known exception to the general rule requiring witnesses to testify facts and not opinions, that in matters involving questions of science, art, trade, or the like, persons of skill may speak not only of facts, but give their opinions in evidence. It is insisted that by the terms of this ex- ception, persons not claiming to possess peculiar skill, and all persons upon matters not requiring peculiar skill are excluded from giving opinions. Professional men are allowed to testify to the principles and rules of the science, art, or employment in which they are especially skilled, as general practical truths or facts ascertained by long study and experience ; and also may pronounce their opinion as to the ap[)li- cation of these general facts to the special circumstances of the matters under investigation ; whether these circumstances have fallen under their own observation, or have been given in evidence by others. The jury being drawn from the body of their fellow-citizens are presumed to have the intelligence which belongs to men of good sense, but are not sup- OPINION' EVIDENCE, 407 Opintuiis of (H-iliiiary Wltiussis A(liiii>f«ll)lL'. it litisliccii not C'( Mil- is liinisi li ij^atioii of )n8, \\\wiv ho rule of f iiersoiial dmissihlc lity of oil- is sou^dil li obscrva- jrtliciu U) e witness, Muling liis i, but ))('- tllO JlUT as deter- hoirjudu- , in which n- ruilely. iswei* can state iii> to bring let tlieni is a well tify fact-- ince, art. but give this ex- I persons n givini: iples and specially iig study le appli- matters der tlieir lie jury to have lot SUJ)- posed to possess i)rofcssional skill, mid, therefore, in matters requiring the exercise of this skill, are permitted to obtain what is needed from tliose who have it, and who are sworn to communicate it fairly. Thus, shipmasters have been allowed to state tluir opinions on the seaworthi- ness of a ship from a survey taken by others ; physicians to pronounce upon a wound which they liave not seen ; and i)ainters and statuaries to •.five their opinion whether a painting or statue bo an original or copy, although they have no knowledge by whom it was nuwle. Tliis is mere opinion, although the opinion of skilful men. This, none but profes- sional men are peiinitted t(} give in luatters involving peculiar skill, and none whatever arc allowed to give in matters not thus involving skill ; because with this exception, the jury are equally coini)ctent to form an opinion as the witness, and, with this exception their judgment ought to be founded on their own unbiased opinion. .But judgment founded on actual observation of the capacity, disposition, temper, character, peculiarities of habit, form, features, or handwriting of others, is more than mere opinion. It approaches to knowledge, and is knowledge, so far as the imperfection of human nature Avill permit knowledge of these things to be acquired, and the result thus acquired should be communi- cated to the jury, because they have not the opportunities of personal ol)servation, and because in no other way can they effectually have the benefit of the knowledge gained by the observation of others. Before a witness should be received to testify as to the condition of mind, it should appear that he had an adequate opportunity of observing and judging of capacity. But so different are the powers and habits of ob- servation in different persons, that no general rule can l)e laid down as to what shall be deemed a suiHcient o[)portunity of observation, other than that it has, in fact, enabled the observer to form a belief or judg- ment thereupon ; and the weight of his opinion must depend upon a consideration of all the circumstances, under which it was formed. For the foregoing reasons we are of opinion that the Criminal Court committed error in excluding the question and answer of the defend- ant's father from the consideration of the jury, and that for this reason, the verdict should have been set aside, and a new trial awarded. The judgment of the Criminal Court is reversed ; the verdict set aside, and a new trial granted the defendant. The cause is remanded to the Criminal Court. 408 THE BUKDEX OF I'KOOF OF INSANITY. State V. McCoy. BURDEN OF PROOF. State v. McCoy. [34 Mo. 531. j In the Supreme Court of Missouri, March Term, 1864. Hon. Barton Batks, Chief Justice, " ^^""'^-^^ V- ^- «'''^'' \ Associate Justices. " JuiixD.S.Dkydkx, i The Burden of Proof is on the dcfciulant to show that bo was insane at the time of the commission of the crime chargetl. Appeal from St. Louis Criminnl Court. Jecko, Gantt & Johnson, for appellant. Voullaire, for respondent. Bay, J., delivered the opinion of the court. At the May term, 18G3, of the St. Louis Criminal Court, the defend- ant was indicted for the murder of Catherine Moran, alleged to hnvc been committed on the 20th of April, 18G3. LTpon the trial the kiUing was admitted and the plea of insanity set up hy tae prisoner's counsel. Beinfr convicted of murder in tlie first degree, a motion was made for a new trial, which was overruled, and the defendant now appeals to this court. The main ground relied upon by defendant's counsel for a re- versal of the judgment is the giving by the court below of the second, third, and thirteenth instructions, which are as follows: — " Th'' law presumes every man who has arrived at the years of dis- cretion to be sane and capable of committing crime, until the contrary is sliown ; so that the State, after proving the unlawful act, need offer no evidence whatever of the sanity of the defendant, but may rest ui)on the legal presumption of sanity until the defendii it shows the contrary." " This defence of insanity is emphatically one which the defendant must make out, and it muj:t be made out to the satisfaction of ^our minds ; for if the evidence merely shows a ease of doubt when the de- fendant might not be insane;, this is not sufficient to authorize an ncquit- tal on that ground only. If the evidence shows merely that the defendant might have been insane at the time of the commission of the act, but does not show satisfactorily to your minds that defendant was insane at that time, this is not sufHcient to warrant an acquittal." " Tlie jury are instructed that the omis or burden of proof of defend- ant's insanity at the immediate time of the killing rests upon the defeiid- ant T insti sho\ at tl sriui the It BURDEN or PKOOF ON TUISONER. 409 State V. McCoy. ant ; and if the same be not established to the entire satisfaction of the jury, then they will find her guilty of murder in the first degree." The tlieory of the defence as urged in this court, and shown in the instructions asked and refused, is that it is incumbent u[)on the State to show by positive and atflrmative testimony that the defendant was sane at the time of the killing ; and if tlie jury entertain a doubt as to the sanity or insanity of the prisoner at such time, the jury must give her the benefit of such doubt and acquit her. It is true that it is incumbent upon the State to prove every fact necessary to constitute the crime of murder, which necessarily includes the sanity of the prisoner ; but the burden of proving such sanity is fully met by the presumption of law that every person is of sound mind until the contrary appears ; and he who undertakes to escape the penalty of the law by means of the plea of insanity must rebut such presumption by proof entirely satisfactory to tliti jury. It is a defence to be made out by the prisoner, and by proof tha'- will satisfy the jury that he was incapable of distinguishing between j'ight and wrong. In Bellingham's Case, which was an indirlment for mui'der, the de- fence set up was insanity, and Mansfield, C. J., in charging the jury, told them: "That in order to support such a defence it ought to be proved by the most distinct and unquestionable evidence that the pris- oner was incapable of jud ng between right and wrong ; that, in fact, it must be proved beyond all doubt that at the time he committed the atrocious act with which he stood charged, he did not consider that murder was a crime against the laws of God and nature, and that there was; no other proof of insanity which wouVI excuse murder or an3' other crime." This doctrine, founded in t.c>son, has been fully recog- n'u.Gd by the courts of this country. The idea, therefore, advanced by the prisoner's counsel that it is in- cumbent upon the State to prove that the accused was sane at the time she oonnnittcd the act, by evidence in addition to and independent of the presumption of law above referred to, is not sustained by authority. The first instruction asked l)y defendant and refused, required the jury to acquit if they entertained a doubt as to the sanity or insanity of the defendant at the time of the commission of the homicide. Tlie doctrine of this instruction was repudiated by this court In the case of the State v. Hating,^ and very properly, for it virtually requires the jury to acquit if they entertain a doubt as to whether the defendant has succeeded in maintaining the defence. The true rule in our opinion ' 21 Mo. 464. ■^:U' 410 THE BURDEX OF PROOF OF INSANITY. State V. Kliuger, was laid down by C. J. Shaw, in Commonioeallh v, liogers,^ which was a ease of murder and the defence insanit}'. The jury received a very elaborate charge from the learned judge, and after being in consultation several hours, came into court and asked the opinion of the court upon the following question: " Must the jury be satisfied beyond a doubt of the insanity of the prisoner to entitle him to an acquittal? " To which the chief justice replied: "That if the i)reponderance of the evidence was in favor of the insanity of the prisoner, the jury would be author- ized to find him insane." The second, third, and fourth instructions asked by defendant fi embraced in those given by the court, and it was unnecessary therefore to give them again. As no other ground of error has been suggested, the judgment ol the Criminal Court will be affirmed ; the other j udges concurring. C BURDEN OF PROOF — PARTICULAR RIGHT AND WRONG TEST. State v. Klinger. [43 Mo. 127.] In the Supreme Court of Misr.ouri^ October Term, 1868. Hon. David Wagxeu, I " F. J. C. Fagg, \ Judges " James Bakeij, ) 1. Burdeaof proof. — The burden of establishing the InBanity of the prisoner is on the do :ance. But it is not necesiaiy th.it it be proved beyond ii reasonable doubt; it is sufti- cient if the jury are satislied by the weight and preponderance of the evidence, that the accused was insane at the time of the commission of the act. 3. Particularriffhtandwrong'test.— To establish insanity as a defence, it must be proved that at the time of committing the offence, the prisoner was laboring under such a dc feet of reason from disease of the mind as not to know the nati re and qualiiy of the act he was doing, or if he did know it, such as not to know that he was doing wrong. Appeal from St. Louis Ci'iminal Court. The prisoner was indicted in tlie 8t. Louis Criminal Court for the murder, on November 2r)th, 1807, of Henry Wider. He was found guilty of murder in the first degree. W. H. 11. Russell, for the appellant. ' T Mete. 500. TEST OF INSANITY, 411 Burdou of Proof. C. p. Johnson, circuit attorney, for the Slate. "Wagner, J., delivered the opinion of the court. The only defence set up by tlie accused was insanity ; and it is urged hy his counsel tliat the court committed error in its instructions on tliat question. It would subserve no useful purpose to go into a laborod or lengthy review of the authorities on that subject, as they will be found diverse and irreconcilable. Recent researches in medical science have eliminated rules, going very far to mitigate the doctrines laid down hy the old authors. It may be said that it is now universally conceded that insanity is a disease of the brain — of that mass of matter through and b}' which the powers of tlie mind act. There are different kinds of insariity, and different degrees of the same kind, and it has been found e-'ceedingly ditlicult to furnish any sure test for the guidance of courts and juries. The question of insanity is always one of fact ; Init how much proof shall be required and where the onus ends, is involved in perplexity. T''e defence may be made out by circumstances ; but every man is pre- sum d to be sane, ."ud to possess a sullicient degree of reason to b responsible for his crimes, until the contrary is shown ; and to esla])lisli the defence it must be proved that at the time of committing the offence lie was laboring under such a defect of reason, from disease of the mind, as not to know the nature and qualitj' of the act he was doing, or, if he did know it, such as no- to know that he was doing wrong. The instruction mainly complained of is the following: ''The law presumes that every man is sane until the contrary is established b3'the evidence to the satisfaction of the jury; and when insanity in any form i-; set up as a defence, it is a fact vhich must be proved li'co any fact. The burden of proving such insauxtj' is upon the defenda it, and he i> not entitled to the benefit of a mere doubt whether he wus or was iKrt insane." It is now insisted that if the evidence v as sufficient to raise a mere duulit in the minds of a jury concerning the defendant's sanity. ili;r doubt inured to his benetit, and would have authorized his ac(iuittal. and tliat the court should have so directed. The instruction given is in entire consonance with the previous deci- sions of this court, and has been considered the establisiied law of this State for man}' yetirs. In State v. Huting,^ it charged with murder, who ai was (led. ire dmits the kil 21 Mo. 464 ed in explicit terms that a party ling and relies upon the defence 412 THE IlUPiDEX OF PROOF OF INSANITY. State V. Klinsrer, of insanity, must make it out to the satisfaction of the jury, and tli:it he is not entitled to the benefit of a reasonable doubt as to his sanity. The subject was not much considered, but the rule was announced as one considered well settled. In the case of the State v. McCoij,^ the same question was again presented, and the ruling in Iluting's Case re- affirmed. But there are some recent ca.jes in which the doctrine con- tended for by the appellant receives strong support. ^ In IIopps v. People'' it was hold by a majority of the court th.at it was not necessary that the insanity of the accused should be established by even a preponderance of proof; but if, upon the whole evidence, the juryentertaui a reason- able doubt of his sanity, they should acquit. Bartlett's Case^ is to the same effect. In the former of these cases, Judge Brcesc took tlio strong position that the burden of proof was on the government throug!:- out. I should be very reluctant to give this proposition my unqualilicd assent. Both observation and experience show that insanity is easily simu- lated ; and if a bare doubt, which may be created in the minds of :t jury by slight circumstances, is permitted to control and produce :ia acquittal, the guilty will often go unpunished, and the nterests of sn- ciety suffer great injury. Mr. Bishop, a writer of great accuracy on criminal law, remarks: "Sanity, as observed by a learned judge, is presumed to be the normal state of the human mind, and it is never in- cumbent on a prosecutor to give adirmative evidence thist such state exists in a particular case. But, suppose this normal state is denied to have existed in the particular instance, then, if evidence is produced in suppoi't of such denial, the jury must judge of it and its effect on the main issue of guilty or not guilty ; and if, considering all the evidence, and considering the presumption that what a man does is sanely done. and suffering the evidence and the presumption to work together in their minds, they entertain a reasonable doubt whether the prisoner did the act in a sane state of mind, they are to acquit; otherwise they are to convict." ^ I think that the safest and most reasonable rule is that, as the law presumes every person who has reached the age of discretion to be of sufficient capacity to be responsible for crimes, the burden of estalihsh- ing the insanity of the accused affirmatively to the satisfaction of the jury on the trial of a criminal case, rests upon the defence. It is nut ne W( at 34 Mo. 531. - People V. McCann,16N. Y. 58; IIopps r. Poople, .'51 ni. 385 ; State v. Bartlett, 43 N. H. 224. ^ Supra. < 43 .V. II. 224. ' 1 I?i-lt. Criin. Prac.sect. 534. BURDEN OF rUOOF, 413 Court Must Not Iu^struct as to Weinht of Evidence. ry, and tli;ii his sanit}-. inounced as McCoy ^ tlK' fs Case re- 3ctrine coii- )sv. People-' lary that the iponderanee 111 a rcasoii- 'e '^ is to the c took the 'lit throiigh- unquahlied ;asily simii- minds of a produce a a ■ests of sd- 3curacy on i judge, is is never in- such state s denied to roduecd in feet on the i evidence, aely done, iogethcr in "isoner did 10 they arc 18 the law n to be of estalthsli- on of the It is uut necessary, however, that this defence be established beyond a reason- ahle doubt. It is sudicient if the jury is reasonably satisfied, by the weight or preponderance of the evidence, that the accused was insane at the time of the coininission of the act.^ [The judgment was reversed on other grounds.] BURDEN OF PROOF — INSTRUCTIONS — COURT MUST NOT INSTRUCT AS TO WEIGHT OF EVIDENCE — REASONABLE DOUBT ON WHOLE EVIDENCE. State v. Smith. [53 Mo. 2(;7.] In the Supreme Court of Missouri, July Term, 1873. Hon. i/.\vin W.\gxi;i;, ] " Wash. Adams, I " IL M. VoHiKrt, I Judges. " T. A. SlIEHWOOD, 1 " W. B, Nai'tox, j 1. Burden of Proof — Instruction. — The burden of proof being on the ))risoner to prove his insanity, an instruction tliat to overtluciw the presuniptinn of sanltj" lie must satisfy the jury by " the weight ami iireiiomU'rance " of ilie tesiimony that he was insane at the time he committed the crime, is not error. i. Instructions— Court Must Not Instruct as to Weight of Evidence. — It is error for the court to select certain facts shown by the eviUence, and tell tlic jury what weight should be attached to iheni. ■'->. Reasonable Doubt on Whole Evidence. — If tlie jury have a reasonable doubt of the commission of the crime on the whole evidence iliey should acquit. Appeal from Greene County Court. VouiKS, J., delivered the opinion of the court. The appellant was prosecuted and tried in the Greene Circuit Court, upon an indictment for an assault with the intent to kill. It is L'harged, in substance, by the indictment, that the defendant on the fifth day of July, 1871, at the county of Greene, etc., did unlawfully, wilfully and felonious^, with a eliopi)ing axe, which Avns a deadly Aveapon, etc. make an assault upon the bod^' of one Amanda Hancock, with the in- tent to kill, etc. The evidence on the part of the State was cireiim- • l.oetfnerf. State, 10 Ohio St. 5it8, Fisher ; People, 23 in 2S3; CommouwealtU i- Rogers, 7 Mete. 500 ; Commonwealth r. Eddy, 7 tjiray, 583. 414 THE BUKDEN OF PIIOOF OF INSANITY State V. Sinitli. stnniial, no direct evidence of the assault by defendant being intro- duce'd. Tlie defendant introduced several witnesses, wliose evidence tended strongly to prove insanity on the part of the defendant. This evidence tended to prove insanity at a time commencing four or five months before the assault, and only a few days previous to the assault, and after the assault while the defendant was in prison. At the close of the evidence the court, on the part of the State, in- structed the jury as follow — First. " The court instructs the jury that the law presumes that every man that has arrived at years of discretion is sane, and that the pre- sumption continues until the contrar}' is shown by the weight and pre- ponderance of testimony." Second. " The court declares, the law to be that, when the State has proven the offence charged, she can rest her case upon the legal pn- sunii)tion that the party accused is of sound mind, and if the defendant seeks to avoid the punishment, he must satisfy the jury by the weight and preponderance of testimony that he was insane at the moment that he committed the crime." Third. " That it is not suflieicnt to warrant an acquittal for the de- fendant simply to show that at times he acted and talked strangel}' and siiiguhuly ; but that the jury must believe from the testimony that he was insane at the very time that he committed the offence, and that he was so insane that he could not di>tinguish right fnmi wrong." To the giving of these instructions the defendant objected, and, his objections being overruled, he excepted. The defendant then asked the court to give the jury several instructions, all of which were refused. And he again excepted. Two of these instructions asked and refused, were as follows: — "The court instructs the jury that it devolrvs upon the State to prove that the defendant is guilty, as charged by the indictment, and unless the State has estal)lishL'd beyond all reasonable doubt that the defendant is guil'v, as charged, they will acquit." '• That if upoi a review of the whole case, and a consideration of all the circumstanct'^ connected with it, the jury have a reasonable doubt as to the guilt of the defendant, they will find him not guilty." After the ab. .e instructions were refused, the defendant asked the court to iustru't the jury that, '• if they have a reasonable doubt as to the giiilt of the defendant, tliey will acquit." This was also refused and liie defendant again exctj>ted. The jury then returned a vertlict of gtrilty against the defendant, and assessed his iiunishment at imprisonment in the iienitentiary for the BUIIDEX OF IMIOOF. 415 " Weight and Preponderance of Testimony." term of two years. The defendant filed a motion for a new trial on the ground, among others, that the court has erred in refusing proper in- i^tructions asked for b}' tlic defendant, and in giving iniproi)er instruc- tions on the part of tlie State. This motion was overruled, and final judgment rendered against the defendant. The defendant again ex- cepted and appealed to this court. The only questions presented by the record for the consideration of this court are as to the propriety or impropriety of the acticju of the cniu't trying the cause, in giving instructions on the part of the State and in refusing those asked for by the defendant. By the first and second instructions given by the court ou the part of the prosecution, the jury are told that the law presumes that every man wlio has arrived at years of discretion is sane or of sound mind ; and ihat if the defendant seeks to avoid this presumption, he must satisfy the jury by the weight and preponderance of testimony, that he was insane at the time he committed the crime. It is urged by the defcnidant that the court committed error in these instructions. The authorities upon the subject of insanity, and upon the subject of the burden and amount of proof in such cases, will be found to be very conflicting, some courts holding that it devolves on the Jofendant in such cases to prove the fact of insanit}- b; the evidence, so tloar as to leave no reasonable doubt as to the insanity. Other courts liavc held that all that is necessary is to produce enough evidence to create a reasonable doubt in the minds of the jurors as to whetlier in- sanity exists in the given case or not ; while it has been repeatedly held in tills court that " insanity is a simi)le question of fact to be proved lilco any other fact, and any evidence, wliich reasonably satisfies the jury tiiat the accused was insane at the time the act was committed, sliduld be deemed suflScient."' The l)urden of proof, of course, is held by this court to be on the 'Ufeudant to rebut the i)resumption of sanity which exists in all cases until the contrary is made to appear. The instructions under consid- eration would have been more satisfactory if they had been differently worded, though the principle asserted in them is in effect the same as tliat enunciated in the cases decided by this court above referred to. The jury are told that they must be satisfied by the weight and prepon- derance of lestiiiiony. This language is well understood by lawyers to mean, that the evidence must be sufficient to satisfy the minds of the jurors as to the fact of insanity, and that is all that is required. Of C(;urse this must necessarilj- be accomplished by a preponderance of the ' State r. Hundlej-, 46 Mo. 4U; State v. Ivlinger, 4:5 Mo. 1'27; St«tc r. McCoy, 34 Mo. 531. 410 THE BUUDEX OF I'UOOF OF INSANITY. State V. Smith. evidence. But the jiuy are told by the instruction that this conviction of their minds must be produced by the " weight and preponderance of the testimony." It is barel}' possible that juiors miglit be held to be- lieve that it took scraething more tlian a conviction of the mind to fiiui in favor of a plea of insanity, from the language used in the instruc- tions. Yet, instructions using almost the same language have been ap- proved in the cases above referred to. The case ■would, therefore, n^t be reversed merely on the ground of the informality of these instruc- tions. The third instruction given by the court on the part of the prosecu- tion, tells the jury, "that it is not sulHcient to warrant an acquittnl. for the defendant simi)ly to sliow thftt at times he acted and talkdl strangely and singuluil}-, but that the jury must believe from the testi- mony that he was insane at the ver}' time he committed the offence, ami that he was so insane that he could not distinguish right from wronir." This instruction was clearly wrong; it is not the province of the cou t to select certain facts shown by the evidence, and tell the jury how much and what weight they sliall give to such facts, or whether thcv shall give such evidence any weight at all. The court passes upon tin legality or admissibility of the evidence, but after the evidence is legally admitted, it is the exclusive provision of the jury to pass upon tU weight of the evidence giveu, and give each part of the evidence sutl; weight as in their judgment it is entitled to receive, without an}' inter- ference or direction of the court whatever. Tlieir minds ought to act freely on the facts of the case without any other control than that of their own unbiased judgment. This instruction is a comment on the evidence, wliich is expressly forbidden by our statute.' The statute provides that the court shall not " sum up or comment or. the evidence." If the court can, under this statute, select certain por- tions of the evidence and toll the jury how much weight to give, or Avhetlier they shall give the evidence selected au}- weight at all, then nn reason can be perceived why the court could not select other parts of the evidence, or all of the facts in the caise, and tell the jury what weight to give the same, and in effect tell what verdict should 1)0 foumi. To permit this, would l)e to wholly destroy' whatever value there is in the right of trial b}' jury. The decisions of this court have been uni- formly in condemnation of such instructions. ^ The defendant on the trial asked the court to instruct the jury: *' That if upon a review of the whole case an(' a consideration of all the 1 W. S. 1106, sect. 30. « state V. Huudley, 4(3 Mo. 4U ; Fine v. St. Louis Public Scliools, 30 Mo. IGC; State v. Cusliing, 29Mo. 216. XITY. BUKDEN OF PROOF, 417 that this conviction nd preponderance of might be held to be- ef the mind to fiiKi ised in the instrut- guage have been ap- ^ould, therefore, ]v,\ ity of these instruc- part of the prosecu- ■arrant an acquittal. e acted and taliccd lieve from the te>i i- ted the offence, and right from wronl,^'■ ovince of the coiim d tell the jury how ts, or whether they •irt passes upon tin c evidence islegalh ' to pass upon tli ' the evidence smli without any Inter- ninds ought to m t ontrol than that of a comment on the 2.1 1 up or comment ni; select certain poi- weight to give, or ight at all, then no Icct otlier parts of tell tlie jury what t should be foumi. r vaUie there is in art have been uni- instruct the jury: ideration of all tlio e, 30 Mo. 16G; State s. State V. Hundley. circumstances connected with it, the jury have a reasonable doubt as to tlio guilt of the defendant, they will lind him not guilty." The court was clearly wrong in refusing to give tliis instruction. In this ca«e, the assault charged in the indictment was not admitted so as to leave the issue of insanity or no insanity tlie only issue to be tried. Tlic assault was denied and was only attempted to be proved bv circumstantial evi- dence so that the jury had to pass upon not onlv the fact of insanity but also on the evidence tending to prove that ti^e accused committed the assault complained of. In such case tlie instruction asked was clearly right and ought to have been given. In delivering the opinion of tlie court in the case above referred to of &tate of Missouri v. Klinger, Judge Wagner approvingly makes the following quotation from Bishop on Criminal Law : " Sanity as ob- served by a learned judge, is presumed to be the normal state' of the human mind, and it is never incumbent on a prosecutor to give alHrma- t.ve evidence that such state exists in a particular case. But suppose thus normal state is denied to have existed in the particular instance, then, If evidence is produced in support of such denial, the jury must .U-dge of It and its effect on the main issue of guilty or not guilty, and If, considering all the evidence, and considering the presumption that what a man_ does is sanely done, and suffering tho evidence and the presumption to work together in their minds, they entertain a rea- sonable doubt whether the prisoner did the act in a sane state of mind they are to acquit. Otherwise they are to convict. ' ' I am of the opinion that the judgment should be reversed. The other judges concurring, the judgment is reversed and the cause remanded BURDEN OF PROOF - INTOXICATION -INSTRUCTIOXS AS TO WEIGHT AND SUFFICIENCY OF EVIDENCE. State v. Huxdley. [4(5 Mo. 414,1 In the Supreme Court of Missouri, August Term, 1870. Hon. Da VIP Wagxki!, ] (I Wakuen Cuukiek. ^' ^untr^hf TT^' "T*'" ^"'■'''" "^ "'"^'"^ '"^'''"''y *° "'« satisfaction of the jury rests upon the ae_fence ; but it is not necessary that insanity should be established beyond a 418 THE BURDEN OF PROOF OF INSANITY. Statu V. HumlU'y. rcaflonablc doubt. An instruction, therefore, which requires a clear preponderance of tin- cviduiico to cstnblisti insanity is erroncout), 2. DrunkenneBS— Insanity Resulting' Thereftroxn. — Tcmporar}' insanity resulting ini- mediiitc'ly from voluntary intoxication is no defence to crime, IJut insanity rcmotuly occasioned by previous bad habits, is entitled to the same consideration as if it aruuu from any other cause. :i. It is Error for the court to instruct on the weight and sufficiency of the evidence. Ai'PEAL from the Fifth District Court. II. M. Vories, witli liiin B. F. Loan and S. Woochon, for appellant. Attorn eji-Oeneral Johnson and Chaudler & Davis, for the State. Wagxeu, J,, dolivorcd tho opinion of tlie court. Tlie defendant was indicted in the Circuit Court of Gentry County, for murder in tlie fust degree, in the killing of Wm. A. Boyer, and, on a change of venue to DeKalb County, he was sentenced to be executed. The killing was most clearly proved, and the defence was rested solely upon the ground of insanity. The only question presented for consid- eration is the propriety of certain instructions given by the court, of its own motion and at the request of the prosecution, and also certain in- structions wliich were asked by the defendant and refused. An objection is raised against the third instruction given at the instance of the State, because it told the jury that it devolved upon tlu^ defendant to show to their satisfaction, by a clear preponderance of tlic testimony, that he was insane. The earlier decisions in this court announce the doctrine that a party relying on insanit}'^ as a defence should make it out to the satisfaction of the jury, and that he was n(jt entitled to the benefit of a reasonable doubt as to his sanity. * Bnt in the more recent case of State v. Klinrjer,- the question was again considered, and we held that the most reasonable rule was, that as ilie law presumed every person who Lad reached the age of discretion to be of sufficient capacity to be responsible for his crimes, the burden of es- tablishing the insanity of the accused affirmatively to the sjitisfaction of the jury, on the trial of a criminal case, rested upon the defence ; but that it was not necessary that the defence should be established beyond a reasonable doubt ; it was sufficient if the jury were reasonably satisfied t)V the weight or preponderance of the evidence that the accused was insane at tlie time of the commission of the act. It seems to me that the court, in the present case, by requiring a clear preponderance of evidence, introduced a qualification that was not enunciated in the Klinger Case, and which had an evident tcndenc\y, and was calculated, to mislead. Insanity is a simple question ol; fact, to be proved like any 1 state V. HuUng, 21 Mo. 464; Stater. Mc- Coy, 34 Mo. 5.'51. 2 43 Mo. 127. sronceof till- CBUltlng ini- ly remotely %B if it uro8tt uncc. ippcUant. ate. / County, r, and, on executed, ited solely ur consitl- urt, of its ertain iii- n\ at the upon tlu^ ice of the ;liis court a dcfoiu'c e was not ty.i But vas again lat as llie ion to be on of cs- nction of ncc ; but d hcyt md satisfied used was mc that irance of \ in the Iculated, like any BUUDKX or rilOOF. 411) Dnuikennes.s as a Dufeiicu to Crime. other fact, and any evidence which reasonably satisfies the Jiiry tliat the aecused was insane at the time the act was c(»mmitte(l, should be deemed siiindent. After taking into consideration and overcoming the prosimiplion of sanity, it is not perceived why any higher degree of evidence, or any greater amount of proof should be required to prove the fact of insanity than any other question which may be raised and submitted upon the trial of a cause. The correct doctrine is that all symptoms and all tests of mental disease are purely matters of fact, to be determined hy the jury; and that evidence which reasonably satisfies the jury that the disease exists, and which would warrant and induce a verdict upon any other issue, ought to be considered suiHcient. From the instruction, the jiiiy might have well inferred that a i)reponderanco, or what would rea- sonal»ly have satisfied them, was not enough, but that something more was necessary. The fourth instruction, given at the request of the State, and the third instruction, given by the coui't of its own motion, may be consid- ered together. The fii'st of the two, in substance, declared that the vol- untary drunkenness of the defendant, so far as the same was shown by evidence to have existed at the time of the homicide, was no mitigation of the crime charged ; and if the jury believed from the evidence that tiie defendant was Laboring under a temporary frenzy or insanity at the time of the killing of Boycr, which was tlien and there the immediate result of intoxicating liquors or narcotics, he was equallj' guilty under the law as if he had been sober or sane at the time of the killing. The latter instruction, which was given directly by the court, told the jury that if they were satisfied, from the weight or preponderance of the whole evidence, that at the time the defendant killed Boyer he was so insane as not to know right from wrong, and as not to know that the aet he was committing was wrong at the time of its commission, and that he was so far deprived of will at the time of the commission of the act as not to possess the power of choosing between right and wrong in regard to the act, and that his insanity was not the result of fits of in- toxication, but was occasioned by previous habits of intoxication and the long use of narcotics, then they should find the defendj not guilty. It is well settled that drunkenness does not mitigate a crime. Any otiier principle would be destruction to the peace and safetj' of society. Every murderer would drink to shelter his intended guilt. There would he an end of convictions for homicide, if drunkeimess avoided respoiisl- hility. As it is, most of the premeditated murders are committed under IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I |50 "^^ ui „.. Hi 2.2 1^ y£ 12.0 IL25 lllll 1.4 I IE III 1.6 0% ^^' A /; ^ y Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. MStO (716) S73-4S03 :<\^ V \ \ 4 6'^ <^^/' z K^ c^ ^ 420 THE UIKOEN OK rUOOF OF INSANITY. State V. Iluucllcy. the stimulus of liquor. "When the guilty purpose is first sedately con ceived, most men fortify themselves for the scene of blood b}' the um of intoxicating drinks. If, therefore, drunkenness imparted irrespon- sibility, there would be no convictions. If the assassin would not t;ik>' liquor to strengthen his nerves he would to evade the penalt}' of h\> crime. ^ Temporary insanity, produced immediatelj'^ by intoxication, does not destroy responsibility, where the patient, when sane and responsilik'. made himself voluntarib/ drunk. Sir Edward Coke la3's down the cum- mon-huv rule to be, that, "as for a drunkard who is vohi)dariu> J'.cmon, he hath, as has bi'cn said, no privilege thereby ; but what luii . c. Ill soever he docth, his drunkenness dotli aggravate it, omne crinu n eo'-' ^'i" et incemlit et deterjit.'" ' And, although it is doubtful whctiioi it can be said that drunkenness aggravates a crime in a judicial sense. 3'c\ t i'; unquestioned that it forms no defence to the fact of guilt. Tnus, Judge Stoky, after noticing that insanity, as a general rule, pro- duc(!a irresponsibility, went on to say: "An exception is wiieie the crime is committed b3' a party while in a fit of intoxication, the law nnt permitting a man to avail himself of the excuse of his own gross vice and misconduct to shelter himself from the legal consequences cf siu h crime." 3 Sir Matthew Hale, in his " Ili-story of the Pleas of llic Crown," written nearly two hundred years ago, says: '• Th.; third kinl of dementia is that which is dementia ciffectata, namely, d:unkenncss. This vice doth deprive men of the use of reason, and puts many nun into a perfect but temporary' frenzy ; and, therefore, according to some civilians, such a pei'son committing homicide shall not be punished sini- l)!y for the crime of homicide, but shall suffer for his drunkenness, an- swerable to the nature of the crime occasioned thereby ; so that yet tlie l)rimal cause of the punishment is rather the drunkenness than the criuu' committed in it. But by the laws of England such a person shall have no privilege by his voluntarily contracted madness." He then state-; two exceptions to the rule, one where intoxication is without fault on his part, as where it is caused by drugs administered by an unskilful physician; and the other where indulgence in habits of intcmi)cran( o has produced pennanent mental disease, which he calls ^'Jixed frenzi/. ' ' ■' The doctrine and the distinction laid down by Ilale have beiMi gvnerali\ followed by the English courts and in this ountry. United ^' Wh. & St. Me what hur; >nne crhncn ul whet hoi icial sense. 't of guilt. 1 rule, pm- where the :he hiw u^t gross vice X's v{ such •AH of the third kiutl nkenuess. nuuiy uu'ii g to some ished siiii- uess, aii- lat yet the the criiiu' shall JKivt' icn sl;ite> t fault on unskilful niperanio frenzy." ■■ wcr of choosing bctwctn riurht and wroncc, ami if his in^anitv was not the result of fits of iiitox- ication, but was occasioned by previous habits of intoxication and ihr long use of narcotics, then tliey should find him not guilty. Tlie distinction that tlie act must take place and be the immcdintc result of the fit of intoxication, and while it lasts, in order to renilo the accused responsible, is here utterly ignored. The insanity niiuiit have l)een found to l)o permanent, and still the result of fits of iiit(i\- ication ; so that it acUially existed and did not come within the exci p- tion to the rule rendering the crime punishable, it could make no difference Avhat it resulted from. The two instructions are inconsistent and contradict(n'y. The one laid down the law correctl}', the other im- paired its force, and, coming as it did directly from the court, was cal- culated to operate injuriously against the defendant. The seventh instruction, upon which error is predicated, is as follows: '•The testimony and opinions of the medical witnesses given in this case should be received by the jury with caution, and arc entitled to l)ut little weight unless sustained by reasons and facts that admit of no niis- coustruction ; and said opinions and tcstimon}' arc not binding on yon against your own judgment, for on you alone rests the responsibility of a correct verdict." It is objected that this instruction is a comment on the evidence, and in direct conflict with the provisions of the statute. The instruction might find countenance and support where the old sj'sti m of practice prevails, and v.herc it is permissible for the court to mukf comments on the e\idence, and instruct the jury as to its sufficiency and weight. But under our statute the whole rule is changed, and comments by the court are entirely forbidden. 1 Since the adoption of this clanst in the statute the ruling has been uniform, and there is hardly a volniui' of the reports in which it is not laid down that it is error for a court to instruct a jury upon the weight and sufficiency of the evidence. Xt is for the court to determine upon the legitimacy and appropriateness of the evi- dence, but the jury are the sole and exclusive judges of the credit and weight that is to be attached to it. For a court to single out certnin testimony iu a cause, and tell the jury that it is entitled to either great or little weight, is contrary' to the statutory provision on the subject. The testimony of medical witnesses, like any other testimony, should be taken into the account b3'the jury, and they should give it just smli weight as they may think it deserves. "Whilst the opinions of quacks, mountebanks, and pretenders are entitled to Httle or no consideration, the opinions of pei'sons of great experience, skill, fidelity, and correct- ness of judgment deserve, and should receive, attention and respect. 1 S Wag. Stat., nor,, sect. 30. COUUT8 MUMT NOT IN'STKUCT ON FACTS. 423 Defence of Insauity Should be Watched. In speaking on this sultject the late Chief Justice Shaw said : "■The opinion of a niedicul man of small experience, or of one who has cnuK- and visionary notions, or of one who has some favorite theory to sup- port, is entitled to very little consideration. The value of such testi- mony will depend mainly upon the experience, fidelity, and impartiality of the witness who gives it." ' In the examination of the witnesses it is the privilege and duty of the counsel, for the enliglitenraent of the jury, to draw forth tlie capabili- ties, fitness, and exi)ericnce of those who undertake to give medical testimony, lint where these tests are applied, and the court decides that tJie evidence is competent, the jury then are the exclusive judges, and are not to be controlled in their determination by the advice and instructions of anybody. An intelligent jur}-, after hearing the wit- nesses, and observing tiieir respective capacity, will not be slow in com- ing to a correct conclusion and awarding such consideration as the merits or demerits of the evidence may deserve. The instruction was an invasion of the province of the jury, and, I tliink, clearly wrong. There is no attempt to deny the killing in this case. The only de- fence set up to excuse or palliate tlie deed of violence and wrong, is insanity. This question is at all times difficult to deal with, and it would lie wrong to p.nish a person who was so unfortunate as to be unac- countable by reason of a diseased and disordered mind. On the other liantl, there is too much foundation for the remark of Mr. Baron Guu- Ni:v, on the trial of the case of Rex v. Re'jnolds^ that "the defence of insanity has lately grown to a fearful height, and the security of the imblic re(iuires that it should be closel}' watched." Recent examples liave shown that guilty criminals have escaped merited punishment on this assumed plea, and have been turned loose, to the great detriment and outrage of justice. The interests of society and the welfare of the community require that justice should be faithfully and rigorously administered. On tlie one hand, care should be taken that no one be punished whose aflliction renders him irresponsible ; on the other, the defence of insanit}', which is easily simulated, about which there are many crude and [jcrvert no- tions, and which is usually resorted to when all other defences fail, should l»e scanned with the severest scrutiny. The court, we think, committed error in regard to the instructions above noticed in this opinion ; otherwise, we have found nothing calling for special comment or revision. With the concurrence of the other judges, the judgment will be re- versed and the cause remanded for a new trial. ' Com. ?■. Rogers, 7 Mete. 500. 424 Tin: nuKDKN ui" rijoui" of insanity Statu V. Uedt'iiU'iiT. burden of proof— particular right and wrong test- new trial — cumulative evidence. State v. Redemeieu.' [71 Mo. 173,] In the Supreme Court of ^fissouri, October Term, 1879. Hon. Thomas A. Siikhwood, Chief Justice. " Willi A. M IJ. Nai-ton, " WaHWICK ll(»(f of State \. 3/('Co^v,- it was held " that it is incumbent on the State to prove every fact necessary to establish the crime of murder, whi'h necessarily includes the sanity of the prisoner; but the burden of prov- ing such sanity of the prisoner is fully met by the presumption of law that every person is of sound mind until the contrary appears ; and lie who undertakes to escape the penalty of the law by means of the ploa of insanity must rebut such presiunption by proof entirely satisfactory 1 Baldwin v. State, 12 Mo. 22:? ; State v. ITuting, 21 Mo. 464 ; State v. McCoy, 34 Mo. 631; State v. Klinger, 43 Mo. 127; State r. Hundley, 46 Mo. 414; State v. Suiit}), 58 Mo. 267; State v. Holme, 54 Mo. 153; State f Slinms, 68 Mo. 305. s Supra. ial)lc (loiiiii to hiin tilt )rizo an lu - reasonalilf I ' prubtiliic 3 not proii- )roof wlu'ii o authori^'.r lese ol)J(t- lat the}' iiiv ih that tip 3cretioii, lu that such 11 can escape rebut siuli iiy that ln' lind was so n riglit anil ade criiiiiii- t, to be di'- )rovecl ny )n the logiil contrary : tting it up, isary to in- bt, his in- it existiil erant'c of tlie CUM' »e State to ler, whi'h n of prov- on of hiw s ; and 1k' )f the plen :itisfactt)ry 153; state r INSTRUCTIONS AS TO TKST OF INSANITY 42^ Hiinlon of Proof. til the jury. It is a defence to be juade out by tlie prisoner, and by pi'iiof that will satisfy tiie Jury that he was iucapalili? of dislinguisliing lietwccn right and wrong." The instructions of tlic court as to the liurtlen of proof of insanity and tlio quanlhin of evidence to estabhsli it are justified, not only by the case last cited, but by all the cases hereinbefore cited. It is also insisted that the capacity of defendant to distinguish be- tween right and wrong wiis the only test laid down by the court in its ( linrgc for the guidance of the jury in determining tlic question of in- sanity, and that, for this reason, it is erroneous. If the charge means tliat, and nothing more, the court would have been authorized to give it under the authority of the case last cited, and 2 (Jreenleaf Ev.,' licv v. MiXitr/hten,~ Hex v. Off'onL'^ Common iveafth v. Moslei\* Freeman v. People.^ But we think the construction jilaced Ity counsel on the in- struction is too narrow, and tiiat the capacity of defendant to distin- 'iiiish between right and wrong was not the sole and only test by which the jury were to be governed in determining the criminal responsibility ('!' defendant, because they were expressly told that, if defendant was incapable of comprehending, or was unconscious of the nature of the •ict at the time he CK)mmitted it, they would accjuit. It is also earnestly and ably argued by counsel that the rule as to the 11 Ka8. 32. 428 THE BURDEN OF PROOF OF INSANITY. State V. Itidcmc'lLT. the person charged, that ho is innocent of tlie char, decided, and l)elieving that it is sustained not only liy reason, but by the weight of authoritv, both in this country and Kngland, we are unw''!ing to make a departure from it. The fact that insanity is so easily simulated demonstrates the wisdom of the rule and affords a strong reason why we should adhere to it, and decline to adopt the rule contended for by defendant's counsel, the tendency of which, in my judgment, would be to stimulate, rather than repress, homicidal mania. It follows from what has lieen said that the charge given to the jury on behalf of the State is not subject to the objections urged against it, and it also follows that the court properly refused the instructions of defend- ant, which asked the court to lay down a rule for the guidance of the jury in determining the question of insanity, at variance with the rule above announced as settled in this State. The instructions asked by tk'fendant in regard to the test to be applied in determining the insanity of defendant having been already substantially given, were for that reason properly refused. It is also urged that the judgment should be reversed because the verdict of the jury wa^- against the evidence, and because the prepon- derance of the evidence established the insanity of the defendant. The claim that such preponderance existed is based upon the facts that the ' Supra. STATK V. KKDKMKIEU. 429 KvIiK'Hcc It) Show Motive. (■vidence (liy some motive in killing deceased may be deduced from the circumstances in evidence, that about two years before the homicide, deceased went into a saloon where several persons were present, defendant being one of the number, and invited all but the defendant to drink with him, at which defendant took um- l)rage, and bad some " words " with the deceased. That this slight or insult took root in the breast of defendant is evident by the statement made by hira immediately after the homicide when (lucstioned about it, that, "I had it in for the son of a b h for the last two years; I could have got even with him a year ago, but I didn't do it ; but to-day I got a good chance pad I took that chance with powder and ball." Besides this three ph3'sicians were examined on the trial. One of them, introduced on behalf of defendant, testified that he had never made insanity a specialty, })uthad treated, in a practice of twenty years, forty or fifty persons of unsound mind ; that he had made, since the homicide, personal examination of defendant, and from his examination and so much of the evidence as he had heard, he was of the opinion that defendant was insane. The other two physicians were introduced on the part of the State. One of them. Dr. Bauduy, testified that he wa-^ a professor in a medical college of diseases of the mind and nervous system, and had been for fourteen years in charge of St. Vincent's Lunatic Asylum, and for that period of time had from one hundred and fifty to five hundred patients under his dail}' care ; that it was his con- stant occupation to be with the insane, and that he had made the study of insanity and diseases of the nervous system specialties. The other. Dr. Hughes, testified that he had for eleven years made the study of insanit}' a specialty, and for about six 3'ears of that time had been in charge of the State Insane Asylum, at Fulton, and had treated three thousand insane patients. A question in writing, stating a hypothetical case embracing all the material evidence submitted on either side, was put to these witnesses, and they were recpicsted-to base their opinion 430 Tin: iiiHDKN or I'ifoor (ir insaxitv. Statu V. Rc'iU'iiiL'iiT. upon till' facts stated in Uic (jucstion as to the insanity of the tlcfcndnnt :it tlie time lie killiMl the tleceasi'd. Dr. Bandiiy answered that, hasi;):: his oi>ini(»n solely tijjon the hypothetical case, it was that at the time < f the commission of the lioniicide the defendant was sane, and aftrr giving: bis scientilic reasons for his conclusions added: " I sec in that hy,()- thetical case no scintillaof insanity whatever." l)r. IIuii difenchint's jrnilt l»cyont that the act had the assent of his riind, while it is urged till; the othir who alleges his insanity shall .lot have the benefit of a reasonable d >ubt, but nuist prove, by a (ireponderanco of evi, for the time, obliterated, he is not a responsible moral agent, and is iii>t punished for criminal acts.' And tiie court here, gentlemen of the jury, in this connection, will adopt further the language and sentiment- of the learned judge: " But a man is not to be excused from responsi- bility if he has capacity and reason sufficient to enable him to distinguish between right and wrong, as to the particular act he is then doing ; a knowledge and consciousness that the act he is doing is wrong an! criminal, and may subject him to punishment. In order to be respun.^i- LOEFFNKU r. STATE. 435 Inst met ions of tlie Court. ifc, so to y tho law. le, andto lujwevcr. e case, in liiuls tli:ii f the act. einsanily For upon saiiit}', lu- ll insigniii compic- unleariud lier. The any of us. ,t as mind this suli- it as I'tu' ;al sense. wrong, as ipaeity to vlcdge of the com- cen right eh a dis- M'petrator Sha\v, in man must itent ami cientthat througli )owcr is, nd is not u of the ntinient- •esponsi- stinguish doing; a ong i\\)>\ espon:?!- l)le. he must have sufficient jiower of memory to recolleet tiie relation in wiiieh he stands to others, and to wiiicli others stand to him; tliat tiie Met he is doing is contrary to the plain dictates of justice anrisoncr was insane a4 !.hc time ho comnutlcil the act, it is not siillicient to raise a doubt in the minds of tlie jury as to whether tin- prisoner was sane, but tlie evidence must be such as satislles the minds of the jury lli;ii he was in fact insane. Eunou to the Court of Oyer and Terminer of Alleghany County. Agnew, C. J., doHvered the opinion of the court. The chief question in this case arises under the fifth point of the. pris- oner, which was negatived by the court below. II !s this : — 5. If the jury have a reasonable doubt of the sanity of the prisonoi- at the time of the killing, they cannot convict. The indu.strj'" of the able counsel of the prisoner, has collected and classified many cases on this point. While we think their weight accoi'(l> with our own conclusions, we cannot help perceiving, in their number and variety, that the decision of the question should rest rather oa a sound basis of principle, than on the conclusions of other courts. In order to apprehend the true force of the principles to be applied, we must keep in the foreground the facts of the case before any question of insanity can arise. Insanit}- is a defence. It presupposes the proof of the facts which constitute a legal ciime, and is set up in avoidance of punishment. Keeping in mind, then, that an act of wilful and mali- cious killing has been proved and requires a verdict of n:'.iider, the prisoner, as a defence, avers that he was of unsounu .1 :•: the time of the killing, and incapable of controlling his will , t .i-' ; -..'refore tiiat ho is not legally responsible for his act. This is the • Am view that the statute itself takes of the defence, in declaring the duty of the jury in respect to it. The sixty-sixth section of the Criminal Code of 31st of March, 18G0, taken from the act of 1830, provides: " In every case in which it shall be given in evidence, upon the trial of any person charged with any crime or misdemeanor, that such person was insane at the time of the commission of such offence, and he shall be acquitted, the jury shall be required to find specially whether such person was insane at the time of the commission of sucli offence, and declare whether he was acquitted by them on the ground of such insanity." Thus the BUUDEN OF I'HOOF. 4ai> Jury imist bu " Siitisliod " of Insanity, ED. Klictmeiu for ho coinmitU'il ) wheihcr llic (the jury that )imty. )f the.pris- e prisoner lectcd ami lit accord- ir iiumlur ther on a iirts. Ill )plied, vi> r question the proof avoidance and mali- idcr, tlio : the tinio fore that view that the jiny e of 31si k'ery case y person insane at cquittcd, son was whctlier "hus the vi-rdict must find the fact of insanitj', and that the acquittal is because the fact is so found. The law then provides for the proper custody of the insane prisoner. This being the provision of the statute, it is evi- lU'ut tliat a jury, before finding the fact of insanity specially, must lie satisfied of it by the evidence. A reasonable doubt of the fact of in- .saiiity, cannot, therefore, be a true basis of the finding of it as a fact, and as a ground of acquittal and of legal custody. To doubt one's sanity is not necessarily to be convinced of his insanity. It has been said in a nearly analagous case, " as to whether a I'casonable doubt shall establish the existence of a plea of self-defence, I take the law to he this: If there be a reasonable doubt that an'j offence has l>een com- mitted by the prisoner, it operates to acquit. But if the evidence clearly establishes the killing by the prisoner, purposely, with a deadl}' weapon, an illegal homicide of some kind is established, and the burden then falls upon the prisoner, and not on the Commonwealtli, to show that it was excusable as an ict of self-defence. If, then, his extenua- tion is in doubt, he cannot be acquitted of all crime, but must be con- victed of homicide in some of its grades — manslaughter at least." ^ Such also was the opinion of the late Chief Justice Lkwi!«, a most excel- hiit criminal law judge (in the trial of John Haggerty), when i)resi- dent of Lancaster County Oyer and Terminer, in the year 1S47.2 He said: 3 "The jury will decide upon the degree of intoxication, if any existed, and upon the existence of insanity. The burden of proof of this defence rests upon the prisoner; the fact of killing, under circum- stances of deliberation detailed in this case, being estal)lished, the insan- ity which furnishes a defence must be shown to have existed at the time the act was committed. The evidence must be such as satisfies the minds of the jury." Thus, according to both statutorj' and judicial in- teri)retation, the evidence to establish insanity as a defence, must be satisfactory and not merely doubtful. If we now analyze the subject, we shall find that this is the only safe conclusion for society, while it is just to the prisoner. Soundness of mind is the natural and normal condition of men, and is necessarily pre- sumed, not only because the fact is generall}' so, l)ut because a contrary presumption would be fatal to the interests of societ}'. No one can justly claim irresponsibility for his act contrarj' to the known nature of the race of which he is one. He must be treated and be adjudged to be a reasonable being until a fact so al)normal as a want of reason positively ' Commonwealth v. Dunn, 58 Pa. St. 2 4 Clark, 187. 3 U. S. Crim. Law, p. 406. 440 THE BURDEN OF PROOF OF INSANITY. Ortwcin v. Coinmonwenlth. appears. It is, therefore, not unjust to him that he should be so con- clusively presumed to be until the contrary is made to appear on his behalf. To be made su to appear to the tribunal determining the fact, the evidence of it must be satisfactoxy and not merely doubtful, tis nothing less than satisfaction can determine a reasonable mind to be- lieve a fact contrary to the course of nature. It cannot, therefore, be said to bo cruel to the prisoner to hold him to the same res[)onsibil- ity for his act, as that to which all reasonable beings of his race tuc held, until the fact is positively proved that he is not reasonable. This statement derives additional force from the opinion of Chief Justice Gibson in the case of the CommoHtoealth \. Mosler,^ trxod before hiui and Justice Bell and Coutler, in Philadelphia, and rjuoted from in Lewis. ^ ''Insanity," he says, " is mental or moral, the latter being sometimes called homicidal mania, and properly so. A man may be mad on all subjects, and then, though he may have a glimmering of reason, he is not a responsible agent. This is general insanity; but if it be not so great in its extent or degree as to blind him to the nature ami co'isequences of his moral duty, it is no defence to an accusation of crime. It must be so great as entirely to destroy his perception of right and Avrong, and it is not until that perception is thus destroyed that he ceases to be re- sponsible. It must amount to delusion or hallucination controlling his will, making the commission of the act, in his apprehension, a duty of overruling nercooity." Again, "partial insanity is confined to a par- ticular subject, bei'ig sane on every other. In that species of madness it is plain that he is a responsible agent if he were not instigated by his madness to perpetrate the act. He continues to be a legitimate subject of punishment, although he may be laboring under a moral obliquity of perception, as much so as if he were merely laboring under an obliquity of vision." And again, " the law is, that whether the insanity be gen- eral or partial, the degree of it must be so great as to have controlled the will of its subject and to have taken from him the freedom of moral action." Thus, all the utterances of the chief justice on this subject are positive and emphatic, and allow no room for doubts, or merely negative expressions. And if this reasoning were even less than conclusive, the safety of society would turn the scale. Merely doubtful evidence of insanity would fill the land with acquitted criminals. The moment a great crime would be committed, in the same instant, indeed often before, would preparation begin to la}-^ ground to doubt the sanity of the perpetrator. ^ 4 Pa. St. 204. : U. S. C. L. 403, 404. TliU |fety of ^sanity ; crime I would Itrator. THE INSANITY PLEA CRITICISED. 441 Diiniior of PLTinittinjr a Sniall Dcyrrcc of l'ri>of. The more enormous and horrible tlie crime tlie less credible, by reason of its enormity, would be the evidence in support of it; and proportion- ately weak would be the required proof of insanity to acquit of it. Even now the humanity of the criminal law opens many doors of escape to the criminal. Then a wider do' r would be opened by :he doubtful l)roof of insanity made still more open by the timidity or jurors, their loose opinions on this subject of punishment, and their common error that the punishment is the consequence of their finding the truth of the facts, instead of the consequence of the commission of the crime it- self. The danger to society from the acquittals on the ground of doubtful insanity, demands a strict rule. It re(iuires that the minds of the triers should be satisfied of the fact of insanity. Finally, we think this point has been actually rided by this court in the case of Lynch v. CoMmouwealtli, decided at Pittsburg in 1H73. The prisoner's second point was in these words: "That if the jury had a reason ai tie doubt as to the condition of the defendant's mind at the time the act was done, he is entitled to the benefit of such doubt, and they cannot convict." The court below said in answer: " The law of the State is, that where the killing is admitted, and insanity or want of legal respon- sibility is alleged as an excuse, it is the duty of the defendant to satisfy the jury that insanity actually existed at the time of the act, and a doubt as to such insanity will not justify a jury in acquitting upon that ground." This ruling was sustained. BURDEN OF PROOF — "MORAL INSANITY" —EVIDENCE —ATTEMPT AT SUICIDE. CoYXE V. Commonwealth. [lOOPa. St. 573.] In the Supreme Court of Pennsylvania^ 1882. 1. Burden of Proof. —It is error to instruct the jury that insanity must be proved by " cleiirly preponderating " evidence. It is only necessary that the evidence supporting it should " fairly preponderate." 2. " Moral Insanity " criticised. 3. Evidence of Insanity. — An attempt at suicide raises no presumption of insanity. I Lynch r. Com., 77 Pa. St. 205. 442 TIIK IIUUDKN Ul' I'lJOUr OF INSANITY. Covk' V. I'ominoiiwi'alth. Ekko;* to the court of Oyer and Tonniner of York County. Mkuccr, J., delivered the opinion of the court. It was dearly proved tliat Coyle killed Emily flyers. That fact i> admitted. The only defence set up is that be was insane at the time. The first specification assigned for error is that in referring to lunui- cidal insanity the court cited approvingly a portion of the language of Mr. Chief Justice Giusox, in Commonicealth v. Nosier,^ in which it is said : " There may be an unseen ligament pressing on the mind, drawinL*^ it to consequences which it sees but cannot avoid, and placing it under a coercion, which while its results are clearly perceived, is incai)alili' of resistance. The doctrine which acknowledges this mania is danirerou< in its relations, and can be recognized only in the clearest cases. It ought to be shown to have been habitual or at least so have evinced itsiclf in more than a single instance." The able argument of counsel has failed to convince us that this was not .1 correct declaration of tlie law, or that it has since been ruled otherwise by this court. The validity of such a defence is admitted, but the existence of sucli a form of mania must not be assumed without satisfactory proof. C are must be taken not to confound it with acts of reckless frenzv. When interposed as a defence to the commission of high crime, its existence should be clearly manifest. Such defence is based on an unsound stati or condition of the mind proved by the acts and declarations of vio- lence. It certainly is uot requiring too much to hold that it shall lie shown in more than a single instance. "We know no later case in this State where the [)recise question has been ruled otherwise. The second specification relates to the effect which shall be given to the attempt of the prisoner to take his own life. This attempt was made immediately after he had fired the shots which caused the death of his victim. The language objected to was not in answer to any point submitted, but appears in the general charge. The court said: "It appears proper to say to you, as a matter of law, that even if yon believe the prisoner really intended to take his own life, this would not be of itself evidence of insanity. It would only be a circumstance in the case to be considered by you in connection with other facts and circumstances, for the purpose of enabling you to determine the mental condition of the prisoner. The fact of the attempted suicide raises no presumption of insanity." The court was dealing with the question of attempted suicide only, 1 4 Pft. St. '2(54. ATTEMIT AT iSl I( IDK NOT PUooT UK I.\>AMTV 44.} Kvick'iicf of Insanity Xi-otl Not ♦'Cltaii.v l'rt|ionil('raU ." riiat fact is t the time, iig to homi- angiiage of which it is id, Urawin>. v. Assetts, and allirniiMl by this court in 74 I'a. .St.' In Lumti v. Com- moiiivealth,- the defence was insanity. It was objected that the court below said to the jury, "you cannot, however, infer insanity from the heinous, atrocious character i.f the crime or constitute it as an ele- ment in the proof of actual in'/inity." The an-^wer here was. "the court did not mean to say tlu.o where proof (>f msMiiity is given, the horrid and unnatural chaiacter of the crime will lend no weight to the proof; but meant only that the It'rrible initure of the crime will not stand as the proof itself, or an element in the proof of the fact of insan- ity. There is a manifest difference Jtetween that which is actual evi- detice of a fact, and which merely lends weight to the evidence which constitutes the proof. This is all the court meant." So we nnderstand the language used in the present case to mean that the attempt to commit suicide, of itself, is not evidence of the fact of the insanity of the prisoner, and it raises no legal i)resumption thereof, but it may be considered by the jury with all the other facts and circum- stances bearing on the question of insanity. Sometimes it may be evi- dence of a wicked and depraved heart, familiar with crime. At others, of despondency and discouragement; but perhaps more frequently of cowivrdice, of a lack of courage to face ignominy and public disgrace, or to submit to the punishment likely to be imposed on him. The third specification presents more difliculty. In answer to a point submitted, the court charged, " the law of the State is that when the killing is admitted, and insanity or want of legal responsibility is alleged as an excuse, it is the dutv of the defendant to satisfv the jury that insanity actually existed at the time of the act, and a doubt as to such insanity will not Justify the jur}' in acquitting on that ground. The law presumes sanity when an act is done, and that i)resumption can only be overthrown by clearly preponderating evidence." Excluding the last sentence, this answer contains a clear and correct statement of the law. It is not sulticient cause for an acquittal of one charged with crime, and defending under the plea of insanity, that a douV)t is raised !\s to its existence. As sanity is presumed, when the fact of insanity is alleged, it must be satisfactorily proved. ^ The question remains, Avhat degree of proof is necessary to overthrow the presumption of sanity? The court said it can be "only by clearly preponderating evidence." ' II. 176. "■ S4 Pa. St. 200. ' Ortwein f. Commonwcaltli, 70 Pa. St. 4U; Lynch v. Same, 77 Pa. St. -205. 444 THK «uijL)i:>f or I'ljoor of insanity. Hopps V. IVnpU', The court also (misled, it is said, by tlic laiigunge in the hiief furiiisiicl it) cited tlic case of Brown v. CommouwenUh,^ as declaring " to estali- ilsh tills defence (viz., insanity) it ::nistbe clearly proved by satisfuclon and clearly prcponderatini; evidence." This is not the language of tliat case. It is demanding a hi 78 Pa. St. 122. » Heister r. Laird, 1 W. & S. 2iri. * Ortwein v. Commonwealth, supra; Brown v. Same, supra; Myers v. Same, 83 Pa. St. HI ; Pannell v. Same, S6 Pa. St. 2G0. f furiiislu'il "to estiil). atisfuctoiv g a hijTlioi tisfacturily liiiro it to eel bcyoml it clear to »t rc(iuiren WHS Uie ;. Same, 83 a. St. 200. iN.sAMTV I'Li;aiji:i» a- a iii:ri:N(K. 445 KvliU'iicc i)f l'ri>oiu r'^ I'rr\ioii* (inml ( ii.iracli r Ilrlcvaiit. inoviiifc caUHO of llio act, wlllnmt wliicli lie wmiM tint liavc ilniic it, he ninrht tn In- nc- ll dufuncx' iH lii.siiiiity, I, Evidence of Another Crime. — .\> a tre»(!ral rule, on the trial of oik; crinie, proof that the prL-^oner haM roiiiiuilteil another !.-« not |>enni>>ible. Hut >vhere thiMlefeiice i^t In- i>aiiily, and the eoolnesH and unconcern of the iiri-oner at (lie time arc relied on a» evi- dence of It, it Is ciim|ieteut to kIkiw that the prisoner h^id in former ycar-< been a ^nuiKgler, ua loitdliig tu rubul the imprentlon that hi^ deportment wa^ the renult ol in- Huuily. WisiT OK Kituou to tlie CiiTiiil Court of Cook County, lion. Judge ^r\xiKUKK, presiding. Messrs. McComaH «fc Dextrr, for the plaintiff in error. ^fr. W. K. MrAllititer, lov the def('n(hiiit.s in error. .Mr. Justice Bkkksk delivered the opinion of the eoiu't. The plaintiff in error wa.s convicted, in the Cook CiuMiit Court, on an indictment for the murder of his wife. lie Itrings the record here, com- jilaining of several errors alleged to have been conmiitti'd to his jneju- . 159, and notes. 13 Wend. 78. I would it affected t be now the case Pausons, deuce his said they n- should ecutic'!':', n capital of Covi- IQ of the icted and clence of stnient, U gainst him nstantial. ood char- •lencc of , should ost pre- at least, Yas per- il! of the lue laws to and >ve tills lould be to any dc such ^ity, the ital act, sought EVIDENCE OF OTHER CRIMES. 447 Tests of Insanity, Is it possible, asks his counsel, that a man who could show so much coolness, sclf-i)osscssion, and apacliy, at the moment and after the fatal deed, could be otherwise than insane? To this the People rei)ly, the j,risoner had spent years of his early life in a perilous calling, demand- uig at all times great coolness and hardihood, and therein had educated his nerves to withstand any shock ; in such a school he learned the do[)ortment exhibited by hiin on the fatal occasion. To account for this coolness and unconcern the testimony of Beardsley and Phcli)S was properly received, it being in the nature of rebutting evidence on the point made. But these are small points compared to those we must consider. The prisoner claims that the court did not lay down to the jnry cor- rectly the law of his case. That he was pri'judiccd by the charge of the court, not coming up, as he alleges it should have done, to the true })rinciples involved in it, by which guilt was established in a case where gi;Ut could not exist, and for which his life must be forfeited if tliis (•omthas ).o corrective power. The homicide stands confessed. It has never been denied by the prisoner; on the conlrar}', he declared, on its commission, that it had l)('(n long contemplated and was right; that ins wife was unchaste. After his ai'rest he justified the deed, and has, throughout, exhibited total indiffeiencc and unconcern. His counsel say for him, he was not of sound mind when the deed was done, and the court, trying the cause, gave to the juiy, at great length. it> views of the nature of the defence, and prescribed the rule which should govern them ' the decision of the case. We do not propose to examine, in detail, the several instructions given by the court for the prosecution, or those refused when asked by the defence. We are fully convinced what the nde or tests should he in such cases. The results of scientific investigation on this intri- cate subject are so imperfect as to render it very difficult to establish any general rule by which judicial proceedings of a criminal nature should be governed, when the defence of insanity is interposed. Writ- ers on the subject treat of seveial different kinds of insanity, and of (lit'feient degrees of the several kinds, and among them, there is con- siderable diversity of opinion on the same point. They furnish, as yet, no true and safe guide for courts and juries ; but it is hoped, as science iulvanccs, a rule will be eliminated which, whilst it shall throw around tliese i)oor unfortunates a sufficient shield, shall, at the same time, place 110 great interest of the community in jeopardy. 448 THE BURDEN OF PROOF OF INSANITY. IIopps V, People. It is now generally conceded, that insanity is a disease of the bi-ain. of that mass of matter through and b}' which that mysterious power, tlio mind acts. There, the mind is supposed to be enthroned, attiiis: through separate and distinct organs. These organs may become dis- eased, one or more or all, and in the degree, or to the extent of sutli disease, is insanity measured. A disease of all the organs, causes total insanity, while of one or more, partial insanity only. There is, it seems, a general intellectual mania, and a partial intellectual mania, and a moral oiania, which is also divided into general and partial, it, Is clf.iined for the prisoner that the species of insanity with which he is afflicted, is of the partial intellectual order, denominated monomania : that is to say, a mania on one subject, and that subject the infidelity of his wife, in which his belief, without the least ground to base it U[)on. was so fixed as to become a deep-seated delusion amounting to mania. In the simplest form of this species of mania, the understanding appears to be tolerably sound on all subjects but those connected with the hallucination.^ Premising these, it is truly said, it has been found diflflcult to establish any general rule under which all these varieties of insanity maybe safely included and controlled, when such a defence is made. The rule prevailing in the time of Lord Coke, Hale, and other lumin- aries of the law, in its not most enlightened days, was that to exempt from punishment the party charged must be totally deprived of his undii- standing and memory. As science advanced, and closer investigations were had upon this subject, it was held, if the accused had so far lost the use of his understanding as not to know right from wrong, he vns not responsible, and this rule has been so far modified as to be applied to the precise act for which the prisoner may be indicted. This rule seems to have been adhered to by the English courts, and by some of the courts of this country, with occasional departures, as in Ilad- JiekVs Case, and other cases commented upon in notes to 1 Leading Crimi- nal Cases. 2 In HadfielcVs Catte^ tried before Lord Kenyox in 1800, it was held if the accused was laboring under a sincere and firm delusion it was his duty to do the act charged, and it was done under the in- fluence of such a delusion, he was not responsible. Yet in Bellimj- ham's Ca.se, tried before Sir James Mansfield, in 1812, reported in .'» Carr. «& Payne,^ the old rule of Lord ILvle's time was announced and enforced, and an undoubted lunatic condemned to the gallows. ' Ray's Med. Jur. 164. ' p. 93. p. ItiO. the brain, power, the ed, ai'tinp Ecome dis- it of sikIi fiuses totnl lere is, it mania., and ial. iT> is •hich he is onomania ; ifidelity of >e it upon. ■ to mania, iig appears I with tho establish y be safely her lumin- empt from lis luuli'r- stigations o far lost g, he va? e applicil Is, and by Is in Ilad- ig Crimi- 1800, it delusion ;r the in- Bellimj- [tcd in .') need and TEST OF INSANITY. 449 Burden of Proof. We do not propose to go into an examination of the various decisions, English and American, on this subject, it being sutHcient to say that no certain, uniform, and deflnite rule can be gatliered from them. In the midst of this uncertaint\', with the best reflection and examination which we have been at)le to give to this very inii))rt ant and most interesting question, we have come to the conclusion that a safe and reasonable test in all such cases would be that whenever it should appear from the evi- dence that at the time of doing tlio act charged, the prisoner was not of sound mind, but affected with insanity, and such affection was the efficient cause of the act, and that he would not have done the act but for that affection, he ought to be acquitted. But this u'soundness of mind or affection of insanity must be of such a degree as to create an uncontrollable impulse to do the act charged, by overriding the reason and judgment, and obliterating the sense of right and wrong as to the particular act done, and depriving the accused of the power of choosing between them. If it be shown the act was the consequence of an insane delusion and caused by it, and by nothing else, justice and humanity alike demand an acquittal. Our statute was designed to ameliorate the vigor of the old rule of the common law. In declaring that a person '•affected with insanity " shall not be considered a fit subject of pun- ishment for an act done which, uniler other circumstances or disposition of mind, would be criminal. The rule we have endeavored to pre- scril)e seems to fulfil this demand of the statute. Another question remains as to the proof necessary in such cases, and the dut} of the jury thereupon. In this case the court instructed tlie jury, if the act was proved to their satisfaction by the weight and preponderance of evidence to have been one of insanity only, the pris- oner was entitled to an acquittal though the defence should not be proved beyond all reasonable doubt. This instruction greatly modifies the old rule, but it does not, in our judgment, announce the true principle in criminal cases. In evcrj' criminal proceeding before a jury, without any exception, if a reason- able doubt is entertained of the guilt of tlie uccuslhI, the jury are bound to ap(init. Now what is essential to the commission of a crime? Our statute declares to constitute crime, there shall be an union or joint operation of act and intention, or criminal negligence. The overt act is one ingredient, the intention another, and their union is indispensable to constitute guilt. Intention is proved by the circumstances connected with the perpetration of the offence, and the sound mind and discretion of the person accused. Tiie killing alone, under the most aggravated circumstances, will not sutlice, if Sjund mind and discretion be want- 20 450 THE BURDEN OF PROOF OF INSANITY. llopps t). rooplc. mg Souiul mind is presumed if tlic prisoner is neither an idiot, luna- tic, nor •• jiffectcd with insanity." If he bo affected with insanity, thou sound mind is wanting and crime is not establislied. Sound mind or sanit^', tlien, is an ingredient in crime quite as essential as the overt act. Who will deny, if there be a reasonable doubt as to the overt act, that the jury are bound to acquit ? Equally imperative must be tlio rule, if ;i reasonable doubt be entertained as to the sanity of the pris- oner. Sanity is guilt. Insanity is innocence ; therefore a reasonable doubt of the sanity of the accused on the long and well-recognized prin- ciples of the common law must acquit. Supi)ose the question was one of identity, would not a reasonable, well-founded doubt on the point ac- quit the prisoner? Suppose an alibi was sought to be proved, and proof sufficient was offered to create a reasonable doubt whether the accused was, at the place and at the time when and where the offence was al- lesed to have been committed, is not tiie prisoner entitled to the benefit of the doubt? So, if the defence be that a homicide was justifiable or excusable, is not the princii)lc well settled, a reasonable doubt will ac- quit? The rule is founded in human nature as well as in the demands of justice and public policy, liuioccnce is the presunqition, guilt being alleged, the State malcing the charge, is bound to prove it; the State is bound to produce evidence sufficient to convince the mind of the guilt of the partly. If a reasonable doubt is raised, then the mind is not con- vinced, and being in that unsettled state, whatever the probabilities may be, a jury cannot convict. It is entirely impossible for them to sSy tlu' accused is guilty when they entertain a reasonable doubt of his guilt. It is urged by tlie prosecution that the burden of proof is on the ac- cused to make out his defence. That sanity being the normal condition, insanity must be established by preponderating evidence. We do not understand the burden of proof is shifted on the defend- ant. Every man charged with crime is entitled to claim the benefit of all the provisions of the law. In every case of murder the first inciuiiy is, has the homicide been committed — did the prisoner do the deed — did he intend to do ic — was he of sound mind, and not affected wi h insanity, when the act was done, and was the act done with malice aforethought, express or implied? The State avers their existence — they are essential to constitute the crime, and the State must prove them — the burden of proof ison the State. But it is said th.at the State is relieved of the burden by proving the prisoner did the act, the law implving that he intended to do it, and that the presumption is < - ry man is of sound mind. These are but presumptions, and when tiny are it- butted by proof of absence of criminal intention by reason of uii- BURDEX OF PKOOF OX PK08i:CUTI0N. 451 CoiiciiiTin- Opinion of Calon, C.J. 'I idiot, Imi.^. nsanity, then mid miiul ur he overt act. 'c overt act, nuist be the of the pri.s- 1 rcasonal)I(. gnizod piiii- ion was one ho point ac- J> aiul i)r()()f the accused nee was al- • tlie benefit iistifiahle or ibt will ac- dcinands of guilt being he State is f the guilt is not cou- >ilities may to sSy till' 'is guilt, on the ae- conditiou, le dcfend- benefit of St iucjuiiy le deed — cted wih th malice sttnce — 1st j)r()ve the Stale , the I;i\v " Tymau y are le- 1 of uii- Wc tl,i„k not n,r, "'.""y.-^*"*"""''! "Il^'gation in tl,e in.lictn,..,,, v i...>"cc..c.„ i. „,.trong ».t,,e,,..n;u: ' ";umv r;?'''""": l"oo( must thercifoie always re niin « fl, ^■. "'''°" "' Leyoml a reasonable "»' ''« "''own .oasonable well fonnclecl J announced sound mind wlu'tlier the satisfies tlie ence of tlie } under tlio the time ho stinctly an- in doubt of f doubt as est ions was -Mice of in- cond ques- every man ti'ly proved [lowed un- f diseased 'nscious of Liid clearly )e that the 'idence of found, de- rule that, evidence inal code, le act was incod is a M'itli tlio 3 uniform large ma- ad is well rime, in- dogies of Experience teaches us that insanity is readily simulated to the extent of creating a doubt in the minds of th..se who have no opportunity, bv assocMating w,th the accused, of detecting the fraud. If the ul • announced by the majority of the cotut becomes the established law I have grave nppi-c.hensions that it will be found a ready means of screJn- ing the gu.Uy of merited punishment, and will operate injuriously upon society. It ai,pears to me that the well being of society, the prev^^nion of crane, and justice to the people all require that the rule in Fl.lJl C ase should be no further relaxed. I however concur with the majority of tiie court in holding that the accused was entitled to give evidence of his previous good charact llus seems to be held to be evidence that the accused may resoit o' and have considered by the jury. Its weight in many cases may justlv' ru^'T T™'"' '"^ "'"' ""'^* "^ "^''^'-^ «"^^^'-l to but little weight' It, hke all other evidence, must be left to the consideration of the jury be weighed in connection with all the other testimony in the case' adLrd" '' "' "'"' ''' ^^^^-^ "^'^-'^ ^'-^^ ^-» ^-^ it Zn The court below therefore erred in rejecting this evidence. Judgment reversed. BURDEN OF PROOF-FRENZY ARISING FROM ANGER OR JEALOUSY- OPINIONS OF EXPERTS. ^^vi^or GuETiG V. State. [G6 Ind. 94; 32 Am. Rep. 99.] In, the Supreme Court of Indiana, 3Iay Term, 1879, on. Jamks L. Wordex, Chief Justice. " Gkohge V. HowK, ] " WiLLIASI E. NlIJLACK, I " Horace P. Biddle, \'^^<^9es. " Samuel E. Perkins, J reasonable doubt." Seld, correct. sufflcieat if it raises m your minas a 450 THE BUKDEN V.F I'KOOF OF INSANITY. (iiiottu V. State. 2. Frenzy ariainer solely from the paaaion of augur ami Jealousy, no mnttor how furious, is licit insiiiiity wliicli wiil oxcune a criiuc. 3. Experts — Weirbt of testimony. —InBtructionti as to tlio weiglit tu boglveuto tbo tustimouy of uxiiortti upprovcU. IiKlictmcnt for murder. J. L. GrlfithH, A. F. Potts, J. W. Gore jn, R. N. Lamb and S. M. SfK'p/icrd, for apiK'llaiit. r. W. Wollen, Attorney-General, J. B. Elam, J. S. Duncan, C. W. Smith and Jt. B. Duncan for the Stiite. UiuDi.i:, J. — Louis Guetig was indicted for the murder of IMary Mc- Glew, convicted and sentenced to death. He appealed to this court. Tlie judgment W!is reversed for an error in tlie lower court and the cause remanded for a new trial. ' Ui'Oii a second trial he was again con- victed and is now again under sentence of death. (Omitting rulings on otlier questions.) 3. The appellant complains of the refusal by the court to give several instructions to the jury, but the only one insisti'd upon in the brief, and the only one, therefore, which we shall notice is the following: — " .". It is true, that in tlio absence of any countervailing fact or i)rc- sumption, every person is presumed to be of sound mind ; but in the case of the defendant, which you are now engiiged in trying, there is opposed to the presumption of soundness of mind, the presumption that the defendant is innocent until the contrary is proved, and this presump- tion of the innocence of the defendant countervails and overcomes tiie presumption that he was of sound mind ; and in the absence of any evi- dence on the part of the State tending to prove that the defendant wns of sound mind at the time of the homicide, you ought to find the defend- ant not guilt}'." This instruction was properly refused. We cannot regard it as the law of the case, Besides tlie instructions numbered eight and nine, given b}'- the court, cover the entire ground attempted to be presented by instruction numbered three, refused by the court. 4. The court g.ave to the jury the following instructions, to which ex- ceptions were properly reserved : — . ' ' 7. Fi'enzy arising solely from the passions of anger and jealousy, no matter how furious, is not insanity. A man with ordinary will power, which is unimpaired by disease, is required by law to govern and con- trol his passions. If he yields to wicked passions, and purposely and maliciously slays another, he cannot escape the penalty prescribed by » GuetigD. State, 03 lnd.278. INSTRUCTIONS IX OlETIO V. STATE, 457 Tot: lUink-u of Proof: Opinions of Kxpi-rts. ■how furious, given to the md^. M. in, C. W. Mary Mo- llis court, t and tlie igain cou- ive several brief, and ct or prc- >ut in the , there is )tiou that presump- oines the any evi- ant wn.-s def end- it as the nd nine, •esented hich ex- onsy, no power, ,nd con- ely and ibed by l:iw, upon the ground of mental incapacity. Tiiat state of mind caused by \vicihors, and to which the term ' malice ' is applied. The condi- tion of mind which usually and immediately follows the excessive use of alcoholic liquors is not the unsoundness of mind meant by our law. V(ilnnt:uT drunkenness does not even palliate or excuse." " (I. The law presumes that a man is of sound mind until there is some evidence to the contrary. In prosecutions for offences against die Criminal Code, an accused is entitled to an acquittal, if the evidence t'ligenders a reasonable doubt as to the mental capacity at the time the alleged offence is charged to have been committed. Evidence rebutting or tending to rebut the presumption of sanity need not, to entitle the lUifcmhuitto an acquittal, preponderate in favor of the accused. It will be sufficient if it raise in your minds a reasonable doubt. "10. The presumption of innocence attends the accused step by f5top throughout the entire case, and he is entitled to its benefit upon every question Involved, as well upon that of mental capacity as upon all others. The effect of the presumption of innocence upon the ques- tion of mental capacity is of such strength as to require that the evi- U'lice shall establish soundness of the mind beyond a reasonable doubt. liiit is not of such power as to require the State in the first instance, and lii'fore the introduction of evidence tending to show mental incapacity, to prove the mental capacity to have been in the normal condition usually possessed by ordinary men. The presumption of innocence is so far of greater strength than that of sanity, that when evidence ap- IR'ais tending to prove insanity, it compels the prosecution to establish, from all the evidence, mental soundness beyond a reasonable doubt. '• 13. The opinions of meilical experts are to be considered bj' you, in connection with all the other evidence in the case, but you are not bound to act upon them to the entire exclusion of other testimony. T:\kinginto consideration these opinions, and giving them just weight, you are to determine for yourselves, from the whole evidence, whether the accused was or was not of sound mind, yielding him the benefit of a reasonable doubt, if such arises from the evidence. "15. You are not to take for granted that the statements contained in the hypothetical questions, which have been propounded to the wit- nesses, are true. Ui)on the contrary, you are to carefully scrutinize tiie evidence, and from that determine, what, if any, of the averments are true ; and what, if any, are not true. Should you find from the evi- dence that some of the material statements therein contained are not 458 THE BURDEN OF PUOOF OF 1N8AXITV, UiU'lla V. .State. correct, and thnt they nro of such dmracter ns to entirely destroy llif ri'liability of oi)inions bused upon the liypollie.sis Htaled, yuu may iitlncli no weight wluilever to the opinions based tliereon. You are to dctcr- rainefrora all the evidence, what the real facts are, and whether they are correctly or not stated in the h^-jiothetical question or questions. 1 need hardly remind you (for it will suggest itself to your own minds) that an opinion based upon an hypothesis wholly incorrectly assumed, or incor- rect in its material facts, and to such an extent as to impair the value of tho opinion, is of little or no weight. Upon the matters statei' in these hypothetical questions, and which are involved in this investi- gation, you are to give thcdefendanc the benefit of all reasonable doubt. if any there should be ; and where there is a reasonable doubt as to tlie truth of any one of the material facts stated, resolve it in the defend- ant's favor." Counsel for appellant object particularly to the first sentence of in- struction numbered seven. It is true that that sentence does not state a legal proposition. It only says that " frenzy arising solely from the passions of anger and jealousy, no matter how furious, is not insanity." This is doubtless correct. Frenzy arising from passion of any kind is violent and temporary and would subside with the passion. Insanity may be without violence and l)crmanent, and not in any way caused by passion. We think the sen- tence is harmless. It does not api^ear to us that it could possibly have injured the ai)pellant. It affords no ground, therefore, to reverse tlu' judgment. Tho remainder of the instruction is correct ; indeed, we do not understand the counsel as objecting to any part of it except the first eentence. In our opinion instructior numbered nine is so clearl3' right that we do not discuss it. We can scarcely approve of vhe last sentence of in-^truction numbered ten, but it contains nothing of which the appellant can complain. If it is erroneous, the error is in his favor. It is true that if the defendant introduced sufficient evidence to raise a reasonable doubt of his sound- ness of mind, it then would become necessary for the State, if she i'.i- sisted upon a conviction, to prove the defendant's mental soundness beyond a reasonable doubt ; but there may be evidence tending to prove insanity, and not be sufficiently strong to raise a reasonable doubt of mental soundness. In this we think the proposition is incorrect. But the error, being against the State, the appellant is not injured thereby. The remaining portion of the instruction is correct. Instructioiis numbered thirteen and fifteen properly express the law, 8TATK V. CKAWFOKI). 4r)l) HiinUii (if Proof oil I'roscciitloii. li'Stroy the nay iitUicli to (K'tlT- •r they iiic 8. 1 iit'fd Is) tliat an , or iiicor- ' the valtic statt'i' ill is iiivosti- .)lo (loiiht. ; ns to tlic le defciul- icc of in- not state from tlu' nsanity." orary and Icnce and : the sen- ibly have verse the >d, we do t the first t that we limbered n. If it efendaiit s sound- f she iii- )undnes8 to prove iloubt of 3t. But thereby. the law, I iiiid are f.diy su.staincd by the authorities cited under question numbered two, already discussed. (Omitting minor points.) We have thus caref.dly examined all the questions presented for <,ur consideration on behalf of the appellant. There is nothing in the ree..rd to show us that the appellant was not indicted, tried, and convicted ac- cording to the law and the facts of the case. The judgment is therefore amrmed at the costs of the appellant. Judgment affirmed. BURDEN OF PROOF. State v. Ckawfoiid. [11 Kas.;!2.] In the Supreme Court of Kansas, January Term, 1873. lion. Samt'kl a. Kinoman, Chivf Justice. " 1). M. Vai.kntixi:, 1 , ." , " D.J.Buewkh, \'^'>^'^<^^^^te Justices. ^'"i?^,^,mf'°°'-~'^''?''''""'^""' ""•""■" "•^'*"' '"^^""''^ '^"«t 'cquire.l to establish It. truth by a prepondenincu of the evi.icn.H,.; but if, upon iho whole of hi !v i intro,lu,-,ed on tho trial, together with all the logal pre. nn'rnrmmlich ,.,.'"''' t:ixt'''''' ''-'' '' "" '"'-''''''' doub^whither hi 'sni^^'T:::::::, hir.:;:^ Appeal from Marion District Court. Lewis Crawford was charged with the crime of murder in the first degree in shooting and killing Charles II. Davenport on April 14 l87-> lie was found guilty and sentenced to be executed November 22', 187-^ and from this judgment and sentence he appealed Frank Foster and Case & Putnam, for appellant. Martin, Burns, & Case, for the State. Valentine, J. (Omitting rulings on other points. ) Did tho court charge the jury correctly with regard to the question of msanity i The court in substance charged that it devolved upon the defendant to prove that he was insane, and that he must do so by a i,re- ponderance of the evidence in order to be acquitted. This, we think IS not the law. We suppose it will be conceded that no crime can be committed by an insane person ; or, at least, it will be conce* ed that no 4G0 THE BUUDEN OF PUOOF OF INSANITY. State V. Crawford. net "which is the result of insanity, total or partial, the result of an in- sane delusion, or the result of an insane, uncontrollable impulse, can 1)6 denominated a crime. Murder at conunon law is delinod to be •'where a person of sound memory and discretion unlawfully killetli any reasonable creature in being, and under the king's pi-ace, with malice pi'epense, or aforethouiiht, either express or implied." ^ And our statutes have nowhere attempted to change the common-law dethii- tion of murder. But they have simply taken murder as delined at common-law and divided it into two, or probably three, degrees.'^ The fact, then, of soundness of mind is as much an essential iuijredient of the crime of muvder as the fact of killing, or malice, or any other act or ingredient of murder, and should, it would seem, be made out in the same way, by the same party, and by evidence of the same kind and de- gree and as conclusive in its character as is required in making out any other escential fact, ingredient, or element of murder. In eveiy criminal action in this State, '' a defendant is presumed to be innocent until the contrary is proved. Where there is a reasonable doubt "whether his guilt is satisfactorily shown, he must be acquitted. When there is a reasonable doubt in which of two or more degrees of an offence he is guilty, he may be convicted of the lowest degree only." This is the statute law of Kansas,^ and "we suppose will not therefore be contro- verted. This statute in substance i?^, that every defendant is presumeil to be innocent of all crime until his guilt is legally shown ; that it de- volves upon the State to show his guilt ; that his guilt must be shown by evidence that will convince the jury beyond a reasonable doubt ; and if, upon the whole of the evidence submitted to the jury, there should be a reasonable doubt as to whether his guilt is satisfactorily shown, he must be acquitted. Now, as no insane person can commit a crime, it necessarily follows that if the jury have a reasonable doubt of the defendant's sanity, they must also have a reasonable doubt of his guilt; and to douljt his guilt (if the doubt be a reasonable one) is to ac(iuit. The doubt of guilt cannot be of a less degree than the douliC of sanity; and if the doubt of sanity be a reasonable doubt, the doubt of guilt must also, and necessarily, be a reasonible doubt. It has been said that this reasonable doubt goes only to the corpus delicti, the body of the offense. We scarcely know in what sense the words corpus delicti are here intended to be used. But in whatever sen:?e the}' may be intended to be used, the proposition is probably erroneous. >4 Wackstone Com. 195; 2 Chltty Cr. = Crimes Act, Gen. Stat. 31.9, 320, sects. C. Law, 724 ; 3 Coke Inst. 47. 'i , 12. 3 Gen. Stat. 850, dm. Code, sect. 228. BURDEN OF I'UOOF ON PROSECUTION, 4tJl State V. C'mwfortl. ects. C. lis. If it be said that tlie offence itself, witii all its essential ingredients (and this, in fact, is what constitutes the body of the offense, the corjius delicti) must be proved bej'ond a reasonable doubt ; but that the de- fendant's connection therewith and hiscai)acity to commit the same may be proved by a less degree of evidence, then the proijosition is glaringly erroneous. For if the su[)posed offence be committed by the defendant alone, then, unless he has capacity to commit an offence, no offence is in fact committed. And if it devolves upon the defendant to piove his want of capacity (when, possibly, a vast amount of evidence is intro- duced by both parties, and on each side of the question), by an equi- librium of the evidence, by less than a preponderance of the cxidence. then it follows as a logical nccessit}' that the offence itself may be proved by less than a preponderance of the evidence. Witli cai)acity in the perpetrator a crime is committed. "Without cai)acity no cri 43 N. H. 224, 228. a 31 111. 385, 393. ' 40 111. 352. ♦ 19 Ind. 170. 6 31 Ind. 485. e 17 Mich. 9,21. ' 16 N. Y. 58, 64. 8 1 Duv. (Ky.) 224, 228. • 28 Ala. 693 ; 1 Bisb. Criu. Proc. sect. 534. PliOPLE V. GARBUTT. 4(i;3 Syllabus. innoceneo. ier the c\ i- I defendant t when It is itted an act nsanity has been nuulL' ot in sneh a crime and reome by a lakes out a ice in ciiiof ' rebut this is required of iH'oof is defendant. !S notsliift 3 question, i, it makes 3t, or what , however, V we liavc ,^ Polk V. McCann.' V State.'* ed til at it 5 to prove easonablo that saiil of them, nmon law !Stionably '■versed. c, sect. 534. BURDEN OF PROOF - DRUxVKENNESS _ HEREDITARY INSANITY INSANITY IN RELATIVES - EVIDENCE. '"''"''^^^^ ~ People v. Gakbutt. [17 Mich. ',).] In the Supreme Court of Michigan, April Term, 1868. Hon. Thomas M. Coolkv, Chief Justice. Isaac P. Ciu{i.stia.\cv, x Jamks V. Campbkii \ t ■ n...r ;, " ' ( dissociate Justices. Benjamin F. Gkaves, 1 '■ Tf cSr''""'''""''^ '" "'"*"■"• ^"'^'•''^ '^'-"'"^- - ^'^^-ce to the commission 3. Irrelevant Evidence. -G. being indicted for murder pleads insanity. The opinion nf 4. An Hereditary Tendency to insanity in the prisoner may be shown From the Recorder's Court at Detroit. Wm. L. Stoughton, Attorney-General, for the People S. Lamed, for the defendant. C001.EY, C. J.— The defendant was convicted in the Recorder'* Court of the City of Detroit, on an infor.nation eharging tif : u' ", mi.rder of one La Pla.tte. On the trial, it was shovv.i that La P ante and a young woman named Emily Boucher were coming down Wood ward Avenue together on the aftei-noon of September 21, 18G7 when they were overtaken by the defendant, who, after a few words fired a p..stolat La Plant., wounding hi.a mortally. No question wtls made h t LaPlante died of this wound; but it was insisted on behalf of defendant that it was inrticted by him under eircumstanees of grea provocation, suffleient to reduce the offence from murder to ma.i- slaughter, and it was further claimed that he was at the time mentally .ncompeent of a criminal intent, the reason being temporarily o^r- thrown through the combined influenee of bitoxieatrng dr nk, the 'eat provocation, and, perhaps, of hereditary tendencies also ^ 464 THE BURDRN OF PKOOF OF IXSAMTY. People V. Garhutt. The defendant's statement went to show that he was engaged to bo married to Emily Boucher, tlie first day of May, 18till prove unsatisfactory, leaving the mind not only in a condition of painful uncertainty upon the principal question whether mental disease actually exists, but when its actual presence is demonstrated, failing ntterly, in many cases, to trace it to an^' suflicient cau>^e. Ihis fact is very forcibly brought home to us by the conflicting views expressed on ciimiual trials by careful, experienced, and conscientious medieal men, who, regarding the same state of facts in the light of their scientific in- vestigations and actual but diverse experience, are forced to express different views, in consequence of which juries, in these difficult cases, are sometimes left in a state of greater doubt and difficulty, if possible, than if no such evidence had been given. The case of Freeman v. People,^ and the more recent and noted case of the forger Huntington, are conspicuous instances in illustration of this truth, but others will readily occur to the mind. The defence sought to show hereditaiy tendencj- to insanity on the part of the defendant. That insane tendencies are transmitted from parent to child, there is no longer a doubt ; and though it was once rnled that proof that other members of the same famil}- have decidedly heen insane is not admissible, either in civil or criminal cases, ^ yet this ruling has since been rejected as unphilosophical and unsound, and it is now allowed to prove the insanity of either parent, or even of a more remote ancestor, since it is well established that insanity sometimes dis- appears in one generation and reappears again in the next.^ In the case at bar it was not claimed that either paient, or anj- other ancestor, had been insane ; but the defence offered to show that insanity had been developed in a brother arising from a cause similar to that which, it was alleged, had induced the destructive act of the defendant ; and this fact was sought to be placed before the jury as throwing some light on the defendant's conduct and accountabilitj'. Although this evidence could not be very satisfactory in character, we tliink it was legally admissible. It is now generally believed that other things besides actual mental disease in the parents maj' cause the trans- ' 4 1)cnio,9. = McAdiim V. Walker, 1 Dow. P. C. U8, 174 ; Chitty's Med. Jur. 354, 355. 30 3 Taylor's Med. Jur. 628, 629, and cases cited ; Whart. & StiUe's Med. Jur. 85, et seq. 46G THE BUIIUKN OF I'UOOF OF IXSANITY. People V. (i«rl)ult. S(l I mission of taints to their offspring, ^vlli^'ll result in sonic cases in idiocy or insanit}'. The cliildrcn of habitual driinkanls are tlionght to be niiic li more sii.soeptil)]e to mental disease than those of persons Avhose hal)it> have bcHMi correct and regular, and the medical oj)inion has been ex- pressed that tlic children of those who are married late in life are ah more subject to insanity than those born under other circumstaiice> Hut it sometimes occurs that ])crs()ns in vigorous health and correct habits, who have nevertheless eiiteied into a marriage whidi violate^ some i)h3-siological law, may become parents of weak and diseased chil- dren only, so that insanity enters the family for tlic llrst time in tin [)erson of the children, but through (qualities derived exclusively from the ■•^rentage. JMclancholy examples of this fact arc presented sonu- ti . ' .J the case of the intermarriage of near relatives. The reasons f c -i arc not fully understood, and cannot be cxi)lained. We can only say uf such cases, that observation tcaclics us the existence of ii law of Matui" ' ^lich cannot be broken with impunity, but the full l)oun(l- aries, extent, an 1 force of which we are as yet xuuiblc to fully compre- hend, point out and explain. But thei'c are other cases where we may be able to discover effects without the ability to point out either tlie law or the causes which produce them. AVhat peculiar combination of qual- ities in parents may tend to produce mental perversion, weakness, or disease in children, must forever renuiiu, in many cases, matter ol' profound mystery. If a family of several children should be found, without known cause, to be idiotic, or subject to mental delusion, the infeiencc of hereditary transmission "would in many cases be entirely conclusive, notwithstanding the inability to point out anything of shui- lar character in any ancestor. Insanity in a part of the children only would be less conclusive ; but the admissibility of the evidence in these cases cannot depend upon its quantity, and it could never be required that it should amount to a demonstration. In some cases its force must be small; in others it will prove hereditary taint with great directness. We think evidence of mental unsoundness on the part of a brother oi' sister of the person whose competency is in question is admissible, and that the jury should be allowed to consider it in connection with all the other evidence bearing upon that subject. The counsel for the defendant retiuested the court to charge the jury that if they believed the defendant was intoxicated to such an extent as to make him unconscious of what he was doing at the time of the commission of the offence, the defendant must be acquitted. ' TaylorV Med. Jur. 029. I in idiocy olU' llllK ll rxse luil)it> s been i'\- 'e are also nstauces. ' id corrcci •ll violixtt> jased cliil- imc in tin ivcly from ited sonu- iie reasons "We c:iii itcnee ol' :i fuUltound- [y conipn - ire we may lier tlie law [on of qual- akness, or matter ol' be found, lusion, tlir )e entirely lor of sinii- Idren only ■e in tliesu |c required orce niusi ireetness. Ibrother or sible, and ith all the [e the jury an extent Ime of the DUINKEN'NESS NO EXCUSE FOIl CRIME. 407 Hurdun of Proof of Insanity. A doctrine like this would be a most alarming one to admit in the criminal jurisprudence of the country, and we think the Recorder was light in rejecting it. A man who voluntarily puts himself in condition to have no control of his actions, must be held to intend the coiise- ([iiences. The safety of the community reciuires this rule. Intoxica- tion is so easily counterfeited, and when real is so often resorted to as a means of nerving the person up to the commission of some desperate net, and is withal so inexcusable in itself, that the law has never recog- nized it as an excuse for crime.' Whether all the charges given by the Recorder on this subject were correct we do not feel called upon to con- sider, as the oidy exception to the charge as given was a general one to the whole charge, which is not sufUcient, when a part of it is correct, to raise (luestions upon other parts. The defendant's counsel also requested the court to charge the jury tliat sanil y is a necessary element in the commission of crime, and must lie i)roved by the prosecution as a part of their case whenever the de- fence is insanity. Also, that where the defence makes proof of insan- ity, partial or otherwise, whenever it shall be made to api)ear from the evidence that jirior to, or at the time of, the offence charged, the pris- oner was not of sound mind, but was alUicted with insanity, and such :itIlietiou was the clllcicnt cause of the act, he ought to be acquitted by Uie jury. These retiuests were refused. It is not to be denied that the law api)licable to cases of homicide where insanity is set up as a defence, is left in a great di'al of confusion u[H)n the authorities; l)ut this, we conceive, springs mainly from the fact that courts have sometimes treated the defence of insanity as if it were in the nature of a special plea, by which the defendant confessed the act charged, and undertook to avoid the consequences ])y showing a substantive defence, which he was bound to make out by clear proof. The burden of proof is held by such authorities to shift from the prose- cution to the defendant when the alleged insanity comes in question ; and while the defendant is to be acquitted unless the act of killing is established bc3'ond reasonable doubt, yet when that fact is once made out, he is to be found guilty of the criminal intent, unless by his evi- dence he establishes with the like clearness, or at least by a prcpondei'- ance of testimony, that he was incapable of criminal intent at the time the act was done.^ These cases overlook or disregard an important and ' Commonwealth v. Hawkins, 3 Gray, 403 ; I'nitcd States r. Drew, 5 Mason, 28; People f. Ilainmill, i Parker, 223; Pirtlo v. State, 9 lluiiiph. 603. = Kogina »•, Taylor, 4 Cox C. C. 155; Re- gina V. Stokes, 3 C. & K. 185; State i'. Briii- yca, 5 Ala. 241 ; State v. Spencer, 21 N. J. (L) 202; State v. Stark, 1 Strob. 479. 468 THE BURDEN OF I'UOOF OF I.NSAMTV. State V. Garbutt. necessary ingredient in the crime of murder, and they strip tlie defend- ant of that presumption of innocence whicli the humanity of the law- casts over him and Avliicli attends him from the initial ion of tlio pro- ceedings until the verdict is rendered. Tims, in ReijiiKX v. T'ttylor,^ it is said: " In cases of insanity tliere is one cardinal rule, never to he departed from, viz. : that tlie burden of proving iiinocenee rests on the part}' accused." And in State v. Spencer,- the rule is laid down thus: " Where it is admitted or clearly proved that the prisoner committed the act, but it is insisted that he was insane, and the evidence leaves the question of insanity in doul)t, the jury ought to find against him. The proof of insanity at the time of C(munitting the act ought to be clear and satisfactory in order to acquit the prisoner on the ground of insanity as proof of committing the act ought to be in order to find a sane man guilty." These cases are not ambiguous, and, if sound they more than justify the Recorder in his charge in the case before us. The defendant was on trial for murder. Murder is said to be com- mitted when a person of sound mind and discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with mal- ice aforethought, either expressed or implied.-' These are the ingre- dients of the offence ; the unlawful killing, ])y a person of sound mind and with malice, or to state them more concisel}', the killing with crim- inal intent ; for there can be no criminal intent when the mental condi- tion of the party accused is such that he is incapable of forming one. These, then, are the facts which are to be established by the prosecu- tion in every case where murder is alleged. The kiUing alone does not in any case completely prove the offence, unless it was accompanied with such circumstances that malice in law or in fact is fairly to be im- plied. The prosecution takes upon itself the burden of establishing not only the killing, but also the malicious intent in every case. There is no such thing in the law as a separation of the ingredients of the of- fence, so as to leave a part to be established by the prosecution, while as to the rest the defendant takes upon himself the burden of proving a negative. The idea that the burden of proof shifts in these cases is un- philosophical, and at war with fundamental principles of criminal law. The presumption of innocence is a shield to the defendant throughout the proceedings, until the verdict of the jury establishes the fact that beyond a reasonable doubt he not only committed the act, but that he did so with malicious intent. ' Supra. * Supra. S3 Coke Inst. 47; 4B1. Com. 196; 2 Chit. Cr. L. 724. ic dcfeiul- )f the law I the pro- Tiujlor,^ il ;ver to l)r ■sts on the own thus: :'oinmilte(l leaves the lim. The Q clear ami iisanity as sane man more than ;o be com- illy killeth , with mal- the ingrc- )und mint,' with crim- ital eondi- ing one. [e prosecu- doos nut [.'ompaniod to be ini- lishing not There is of the of- lion, while [proving a .sesis un- ninal law. kroughout fact that It that he PEOPLE V. GAUBUTT. 409 IJurilfn of Proof on Prosccntion. It does not follow, however, that the prosecution at the outset must give direct proof of an actual malicious intent on the part of the defend- ant; or enter upon the question of sanity before the defendant has con- troverted it. The nutst conclusive proof of malice will usually spring from the circumstances attending the killing, and the prosecution could not well be required in such cases to go further than to put those circumstances in evidence. And on the subject of sanity, that condi- tion being the normal state of humanity, the prosecution are at liberty to rest upon the presumption that the accused was sane, until that pre- sumption is overcome by the defendant's evidence. The presumption establishes, prima facie, this portion of the case on the part of the Government. It stands in the place of the testimony of witnesses, lia- hle to be overcome in the same way. Nevertheless it is a part of the case for the Government ; the fact which it supports must necessarily be established before any conviction can be had ; and when the jury come to consider the whole case upon the evidence delivered to them, they must do so upon the ba-is that on each and every portion of it they are to 1)6 reasonably satislied before they are at liberty to find the defend- ant guilty. ■ This question of the luu'den of prcJof as to criminal intent was con- sidered by this court in the case of Maker v. People ^^ i\\\{\ a. rule was there laid down which is entirely satisfactory to us, and which we have no disposition to qualify in any manner. Api)lying that rule to the present case, we think the Recorder did not err in refusing to charge that proof of sanity must be given by the prosecution as a pai-t of their case. They are at liberty to rest upon the presumption of sanity until proof of tlie contrary condition is given by the defence. But when any evidence is given which tends to overthrow that presumption, the j ury are to examine, weigh, and pas9 upon it with the understanding that, al- though the initiative in presenting the evidence is taken by the defence, the burden of proof upon this part of the case, as well as upon the other, is upon the prosecution to establish the conditions of guilt. Upon this point the case of PeojAe v. McCann,'^ is clear and satisfac- tory, and the cases of Commonwealth v. Kimball,^ Commonioealth v. Dana,^ State v. Marler,^ Commonioealth v. McKee,^ Commonwealth v. /io(/( /'.s, ' and IIopps v. People,^ may be referred to in further illustration of the principle. See also Doty v. State. ^ The recent ease of Walter v. 196; 2 Chit. » 10 Mich. 212. 2 16 N. Y. 58. 3 24 Pick. 373 * 2 Mete. 340. 6 2 Ala. 43. • 1 Gray, 61. ' 7 Mete. 500. 8 31 in. 385. » 7 Blackf . 427. 470 TIIH nUKDKN OF I'KOOF OV INSANITY. (Uiiiiiiiigliiuu V. State. Peojtlc,^ iloi'H not ovcrnilo the cnso of Peojilr v. MrCmin, \n\\ mi f;ir :is it .s is eiitiivly in li.uin )ny willi tlii' viows hi'i« cxprossod. IJnt. it is clivinii'il liiat tlio licconier v.nvA when ho dodiiu'd to charp' tliJit if it iippouri'd from llio cvideni'e Unit dclVndant was alllicled willi insanity, and sndi alllirtion was (lie fllicient cansi' of the act, lu? ()[.\>j;\\\ to III' Mc'iiniltiHl by (lu; jnrv. Tliis refusal, however, must he consjij ered in eoinieetion with the einirji,e actindly <:!:iven, and we are not satis- lied that other portions of the charge (h> not fully cover the ground. Were tliis the sole error cliarged it might he necessary to examine all the instrui'tions to the Jniy with some cai'c, to see if, taken as ii wlinli, they could tend to mislead. As, however, a new Irial must he ordeicil on other grounds, it doi's not lieeome important to make any such criticiil examination. If we do not misapprehend the charge, the view of tlu' Recorder seems to have been substantially the same as our own. Neio trial onJered. CiiiusTiANCY, J., did not sit. BURDEN OF PKOOF— TKST OF INS.VXITY — MOKAL INSANITY. CUNXIxr.llAM V. Statk. [5(1 Miss. 2(;;t ; ;!1 Am. Hi'p. ;'.(;o.] In the Supreme Court of Misfiissipjn, Januaru Term, 1870. Hon. IltiUA no F. Simkai.i., Chief Justice " "• II-t'"A..MKUS, I . " .1. A. F. CA.Ml'Ulil.l.. < 1. Burden on State to Prove Sanity. — Wlicn nny facts nic proved which raise a doubt of the sanity of a itorson accused of crime, it devolves on the State to remove that iloulii, and establish the sanity of tlie prisoner to llie satisfaction of tlie jury beyond all rea- sonable doubt. 2. Insanity to Excuse Crime must destroy the jiowcr of distinguishing between riglit and wrong. a. The Doctrine of Moral Insanity disapproved. Conviction of murder. The facts are stated in the opinion. Collins & liasberri/, for the prisoner. Attorney-General Catch ingx, for the State. Chalmers, J. — Adeline Cunningham was convicted, in the Circuit > ;!-2 X. V. u:. HiriMJKN (H' I'KOOK ON l'l!( »si;(l TIO.N . 171 Cuiiiiiii^'lmiii V. SIfilc. )llt. sn f.-ir ;n I. I'd lo fhnrp' idliclod Miili let, ill! oiii,r|ii t. Ite coiisiii- iro not SMti^- the }j;r(>iiii(l. • oxiuniiu' all 1 as u whole, 1 1)0 onU-riil snt'h criticMl ! view of till' own. I ordered. 5ANITY. 1870. X raiso a dnubi nvethat (li)ul)i, )cyond all reu- between riglit :\. the Circuit Court of Cliiy County, of tlio inunliT of lior huslmnd, :ind Hontcnced to 1)1- llUIli^. Tliiit she cominitted the deed sind thiit it wivs one of peculiiir atrocity is not denied or fr-iinsiiid. In the (h-ad hourc.f night, whii(i the iiuslmnd lay .sleeping on the common hed, she split open his heiul with ii hateiiet, without provociilion orniotive as far as can Ik; ascertained. She waited (jiiietly till morning came, and then freely un. I V(;luntarily iivovved the act to all ln((iiirers, offering no excuse save that to one (jcrson she staled that'her hushanc- was attem|»ting lo take her life with a knife, wiiich, she said, would i)e lonnd in the bed, hut which could nowhere he discovered. The defence set up for her is ti-mporary or periodic insanity, pro- duced l»y derangem(!iit in iicr monthly menstruations, and whieii, it is said, was liable to attack her at each recurring monthly period. Without desiring to express any opinion on the facts, it is proper to say that there was ..utlicient evichjncc" to suggest at least a possibility of the truth of her defence, and to demand that the jury should ho. left free to determine the (luestion, unembarrassed by erroneous instructions ft'om the court. They were not so left. By the fnsl instruction given for the State they were informed that " the legal presumption of sanity is not over- come by the mere i)robability that the ])arty was insane, but will stand until overthrown by evidence. :Mere probability of insanity cannot prevail over the presumption of sanity, so as to Avork the acquittal of the party on the ground of insanity. For a defence resting on the ground of insanity, the insanity must l)e clearly proved." In other words the jury were told that, though they believed the defendant probably insane, she must be convicted on some presumption of law whicli overthrew all probabilities of fact. Is this a sound principle of law? Undoubtedly there are nnmerons authorities which so declare, as there are many also goii,;; far bevond this, and holding that the defence of insanity can never avail unless its existence is established to the exclusion of every reasonable doubt. There is perhaps no subject connected with criminal hiwnpon which the authorities are more hopelessly in conflict than the one here presented. Three distinct theories are held by courts and text-writers of the highest character, and each may be supported by a long array of respectable authorities, viz. : 1. The prisoner must prove his insanity beyond a reasonable doubt. 2. He must establish it by a preponder- ance of evidence. 3. He must raise a reasonable doubt as to his sanity. 472 THE BUKUKN OF I'KOOF OF INSANITY C'iiiiiiiii;;;liiiiii v. StatL'. The first of these views receives most countenance from English adjudiciitions and text-books; the Kecoiid is supported by a majority of tlie American courts ; wliile the third, tliough lu-ld as yet jjerliapa by a minority of the adjudged cases, is gaining in favor, is tiic well settled law in many of the States, and is supported by a power isoning which we deem convincing. Kvery indictment charges the commission of a criminal act by a responsil)le being, and no conviction can occur until the jury shall have been satisfied be^'ond all reasonable doubt that such an act has, Ity such a being, been committed. Sanity is the normal condition of the intellect ; so that when the party indicted is seen to \w a human being, the presumption of the law (because it is ihe i)re('Umption of cummou sense) is that the person is sane. Hence in the absence of evidence to suggest the contrary, the Jury acts on this presumption, and the deed being pr(jven, the conviction follows. But if in proving the deed, evi- dence is offered which suggests a doubt of the party's sanity, the State must promptly niet't it, and this without regard to the side from which the proof suggesting the doul)t comes. The law clothes t' accused with a i)rcsumption of innocence whicli he never loses until diet of conviction has been i)ronounced. He pleads nothing affinnatnciy, save in rare and exceptional instances, but by his plea of not guilty he puts ui)on the State the burden of establishing every fact necessary to con- stitute guilt. The changing phases of the evidence may make his case at various stages wear various aspects. At one moment it may seem that his guilt has been conclusively shown, and at the next it may ap[)ear to have been as conclusively negatived ; but his owa attitude never changes. To every fresh development and every new cir- cumstance he repeats his plea of not guilty, and in every new complication he rests upon his legal presumption of innocence. The testimony offered against him may indeed necessitate the pro- duction of something on his part to meet the case as made out ; l)ut it can never do this until, uncontradicted and unexplained, it has demon- strated his guilt beyond a reasonable doubt. Shall it be said that because this has been accomplished at some particular stage of the testimony, the burden of proof has shifted, and thenceforward the duty is imposed upon him of re-establishing his innocence beyond all rea- sonable doubt ? Nobody would venture so to assert, if the demonstration of guilt so made out was in regard to the commission of the act. Wh}" should the rule be different in reference to the mental accountability of the defendant? There can be no crime without mental accountability, and it is just as essential to show the conscious mind as the unlawful BllJUKN OF I'UOUF ON 1'1{0!*KCLT10.N. 473 Till' AiM;imR'iits tor this Tluoiv. n Enijlish lajority of laps Ity :i •fll sou led isoniiig act l)y a shall liave ■t has, liy ion of the lan boing, f foimiioii s'icleiifc to I the deed (lei'd, evi- , the State om which accused diet of \ciy, save y he puts ■y to coii- liis case nay seem t it may attitude new cif- ery new nocence. tlie pro- ut ; but demon- aid that le of the |tlie duty all rea- istration Why ility of ability, niawful act. But it is said that the law pi-esumes sanity. So the law pfcsunies tnalicc fioin tlie fact of killing; but if iiiiytliinj; in the testimony, either ni the State oi' of the defendant, siitrgests a reasonaldc dntdit of its ixistence, nobody ever su))posed tlwit the State eould stop short of removing this doubt, anil of establishing; the malice to a moral cer- tainty. The presumptions or implications, wliieli in criminal eases the law deduces from the establislui'-Mit of paiiicular fails, have no other force tlian to dispense with fuilhei ;u'oof of tiie thing preMuned, uidesssotne- thing in the testimony, either tneretofore or thereafter offered, suggests a doubt of the existence of the presumed fact. lint the.moment that doubt is engendered in reference to it, if it be as to a fact necessary to conviction, the State must establish the fact independently of the pre- sumption ; and the ol)ligation to do this rests continuously ujxm her. The accused need do nothing save repose upon the presumption of innocence with which the law has cloth' ( I him, and claim the benelit of all the doubts which the testimony has evolved. Apply these principles to the question of sanity. Because he is a liuman being, the accused is presumed to be sane. lie nuist be sane in order to l)e guilty. The trial commences with the presumption that he is so. If notiiing in the testimony suggests otherwise, there is no obli- gation to establish it ; but the moment the proof warrants a reasonable doubt of it, no matter from which side it comes, that doubt must be re- moved. Which side must remove it? Manifestly that side which set out to show guilt, because there can be no guilt without sanity. That condition of sanity which is ordinarily the attribute of all men has been rendered doubtful as to this particular man, and as his giult de- pends upon his sanity, its existence must be shown in the same manner and to the same extent as any of the other elements which go to make up the crime. What logic or consistency can there be in saying that all the other elements must be established be3'ond a reasonable doubt, but that this one — certainly as essential as any other — may be assumed on less satisfactory proof? True, the case started with the theory that it existed, but can this in any wise affect the condition in which it must be left at the close, if it has, during the progress of the trial, been ren- dered doubtful? How can a jury say, " We have no doubt of the guilt of the prisoner, but we do doubt whether he was sane? " If a jury in a capital case should bring in such a verdict would it not be judicial murder to inflict a sentence of death? And yet man}' such A'erdicts are practically inevitable under a theory of the law which holds that the burden of proving insanity rests upon the accused, and that he must be 474 THE BUUDEX or I'uoor of insanity. Cuniiiuufhiiin i'. Statu. convicted unless he has cleai'ly proved it beyond all probability, or be- yond all reasonable doubt. We think the true rule is this : Every man is presumed to be sane, and in the absence of testimony engendering a reasonable doubt of sanity, no eviilence on the subject need be offered ; but whenever the question of sanity is raised and put in issue by such facts, proven on eitliersido. as engender such doubt, it devolves upon the State to remove it, and to establish the sanity of the prisoner to the satisfaction of the jury, be- yond all reasonable doubt arising out of all the evidence in the ease. ' When we speak of insanity as an excuse for crime, we refer, of course, to such degree of insanity as disqualifies from a proper percep- tion of the difference between right and wrong, and thereby shields its victim from legal accountability for his acts.- We find in the record, among the instructions asked by the defend- ant, one numbered twelve, in which the rule here laid down is an- nounced — to-wit, that the jury must acquit if they entertain a reasonable doubt of the sanity of the accused. This instruction is ne'ther marked " given" nor " refused," and we h.*ve no meansof dis- covering what was the action of the court upon it. If it was refused, such refusal was erroneous, because it correctly enunciated the law. If it was given, it was in direct conllict witli the fifth instruction for tlie State, upon which we have been commenting, and the giving of conflict- ing instructions is erroneous. The ninth instruction asked by the defendant, and refused by the court, »vas in these words : "■ When the delusion of a party is such that he has a real and firm belief of the existence of a fact which is wliolly imaginary, and under that insane belief he has done an act which would be justifiable if such fact existed, he is not resjjonsible for such act. Nor is a party resi)onsible for an act done under an uncontrollable impulse which is the result of mental diseasir." The doctrine announcec' in the first clause of this instruction first found distinct utterance in the celebrated i)rosecutions of Ilailjield for the attempted assasination of King Geoi-ge III.,^ and owes its birth and adoption into the English law to the genius and eloquence of Erskinc. It has been repeatedly since recognized both in England and Americu, notabl,y in this country in Commonvealthv. Rogers,'^ and in Eoherts v. State J> Of its correctness there can, we think, be no doubt. Indeed, 1 Pollard r. state, 53 Miss. 410; People v. McCiuin, l(i N. V..'it-; State c. IJarllett, 4;; N. 1I.2J4; Statu r-. Crawfoid, 11 Kan. .32; l»olk V. State, I'.i Ind. 170; Mopps r. People, 31 111. ;J85; Ogletreo v. Slate, JS Ala. 701. a novard'8 Case, 30 Miss. GOO. 3 27 How. St. Tr. T-'sl. * 7 Mete. .-iOO. '> 3 Ga. 310. INSANE DELUSION. 475 When !i Deffii.sc to Crime. jility, or be- be sane, and t of sanity, the question I eitliersidc. ve it, and to le jury, be- II the case.' ve refer, of )per percep- y shields its the defend- lown is aii- entertain a struction is leans of dis- 'as refused, the hiw. If ;ion for tlie of conflict- scd by the is such tlmt h is wliolly liicli would r such act. ontroUablo Liction first adjield for birth and f Erskine. 1 Auiericu, Roberts v. Indeed, though it ha.s by some courts been denied recognition, it seems to us only aiidtiier metiiod of stating that tliere can be no crime wliere there is a ijiental incapacity to distinguish between right and wrong ; for thougli delusions as to particular matters frequently exist in minds which are perfectly rational upon all other subjects, yet if tlie delusion be so fixed and vivid as to make the imaginary seem the real, there must be upon that subject a total incapacity to distinguish between right and wrong, since the entire relation between the victim of the delusion and its unconscious subject being mentally perverted, there can be no proper standard of right and wrong in the diseased mind. That which to the refit of the world seems right is to him the most flagrant wrong, and I'ice versa. If to his deluded imagination his best friend, or tlie wife of his bosom, seems a relentless foe, bent upon his destruction, he neces- sarily acts upon the hallucination which possesses him ; and if his action is such as would be justifiable or proper if the reality was as he supposes it to be, there can be no accountability, l)ecause there has been no con- scious crime. If a crazed enthusiast violates the law, impelled b\- a madness v hich makes him deem it the inspired act of God, he has only done that which his diseased and deluded imagination taught him was right ; and if the act would be proper in one so divinely inspired, and was the direct and necessary consequence of the dcdusion. there can be no punishment, because, however rational on other subjects, he was on that subject incapable of having a criminal intent. The juries must, under the instructing guidance of the courts, be the judges of the sincerity and firmness of tlie belief, and of whether the act was in truth the direct and necessai}' result of the insane delusion. There is but litttle danger that the sober common sense of mankind will be deceived by a feigned madness or will fail to detect the craftiest iraposter, who, under the gui.se of insanity, violates the criminal law. The danger rather is, that indignation at the crime and incapacity to appreciate the delusion will make them incredulous of its existence. We think that the first clause of the instruction, which is taken sub- stantially from the opinion of Chief Justice Shaw in Commoniveallh v. Rog rs^^ announces a correct principle of law. The second clause declares that there is no respor sibilit}' for " an act committed under the uncontrollable impulse resulting from mental disease." If clie impulse meant is the direct result of such mental dis- ease as destroys the preception of right and wrong, this is only a reaf- ' Sui)ra. 476 THE BUUDEN OF PROOF OF INSANITY. Cunuiugham v. State. firmation of the doctrine announced in several preceding cliarges, and it derives no additional strength from the prefix of tlie word " uncon- trollable." But there is said to be an uncontrollable impulse springing from a mental condition quite different from this, a state of the mind which perfectly perceives the true relations of the party and recognizos all the obligations thereby imposed, but which, i' is said, is unable to control the will. This character of insanity is variously styled moral or emotional or impulsive or paroxysmal insanity. It is known among medical writers as lesion of the will.. Its peculiarity is said to be that while the mental perception is unimpaired the mind is powerless to control the will; that while its unhappy subject knows the right and desires to pursue it, some mysterious and uncontrollable impulse compels him to commit the wrong. This kind of insanity', if insanity it can be called, though some- times recognized by respectable courts, and still oftener perhaps by juries seeking an excuse to evade the stern dictates of the law, is proii- erly rejected by the authorities generally. The possibility of the ex- istence of such a mental condition is too doubtful, the theory is too problematical and too incapable of a practical solution to afford a safe basis of legal adjudication. It may serve as a metaphysical or psycho- logical problem to interest and amuse the speculative philosopher, but it must be discarded by the jurist and the law-giver in the practical af- fairs of life. To it may well be applied the language of Judge Curtis, who, in spealdng of this and similar questions, says: "They are an important as well as a deeply interesting stud}', and they find their place in that science which ministers to diseases of the mind. * * * But the law is not a medical nor a metaphysical science. Its search is after those practical rules which may be administered without inhumanity for the security of civil society by protecting it from crime, and therefore it inquires not into the peculiar constitution of mind of the accused, or what "v\ oakness or even disorders he was afflicted with, but solely whether he loas capable of having, and did have, a criminal intent. If he had it punishes him, if not it holds him dispunishable. "i The latter clause of the instruction in question is copied, as indeed the whole instruction is, from the syllabus or head-notes of Com- momvealth v. Rogers,^ but it fails to embody the qualifications and re- striction thrown around the doctrine in the opinion itself. The uncontrollable impulse which the learned chief justice declares will excuse the act is said to be that ' ' which overwhelms reason, cou- 1 U. S. I'. McGlue, 1 Curt. 1. « 7 Mete. 500. WlilUIlT V. PEOrLE. 477 IJurdeii of Proof on Prosecution. larges, and i " uncon- e springing f the mind recognizes i unable to lotional or cal writers the mental ■vvill; that •le it, some •nimit the ugh some- irhaps by S is pi'op- f the ex- orj is too I'd a safe r psycho- l>her, but cticiil af- e Curtis, iy are an eir place * But ti is after anity for ;herefore used, or ' whether e had it 3 indeed f Com- and re- leclares m, con- science and judgment." " If so," says ho, "then the act was not the act of a voluntary agent, but the involuntary act of the body without the concurrence of the mind directing it," In other words, it is the uncontrollable act of a mind destituie of reason, conscience or judgment as to the particular object, however sane as to other matters. The lat- '.er clause of the instruction, therefore, should have been restricted by words conveying the idea that the act was the direct result of an uncon- trollable impulse springing from mental disease, existing to so high a degree that for the time it overwhelmed the reason, judgment and con- science. The exceptions taken to the action of the comt in its rulings on the evidence aie without me.it. For the errors indicated in the instructions the judgment is reversed and a new trial awarded. BURDEN OF PROOF — TEST OF INSANITY. Wright v. People. in the Supreme Court of Nebraska, January Term, 1876. [4 Neb. 407.] Hon. George B. Lake, Chief Justice. " Daniei, Gantt, ^ " Samuel Maxwell, K"''^^*- 1. Insanity — Burden of Proof. — Where, in a criminal case, the accused relies upon in- sanity as a defence, the burden of proof is on the prosecution to show sanity. 2. Evidence — Beasonable Doubt. — In sustaining sucli a defence, where there Is testimony to rebut the legal presuiiiiuion that the accused was sane, unices the jurv are satisfied beyond a reasonable doubt that the act complained of was not produced by mental disear e, they must acquit. S. Test of Insanity. — But the degree of mental unsoundness, in order to exempt a pe-:cr. from ijunishment, must be such as to create uncontrollable impulse to do tlie act c.iarged. If it be found insufficient to deprive the accused of ability to distinguish rifc-ht from wrong, he should be held responsible for the consequences of his acts. Ehror from the Otoe County District Court. This was a conviction upon an indictment for assault with intent to commit murder. The defence was insanity. Exceptions taken to re- fusal of instructions to the jury requested on behalf of the prisoner, and to the charge of the court. Verdict of guilty. Judgment and sentence. Cause brought up by writ of error. 478 THE BURDEN OF PROOF OF INSANITY. Wright V. People. The instructions requested were : Fimt. The burden of proof is on the prosecution to show sanity. Second. If the jury believe that tlie accused was insane at the time of the assault, they must acquit. The first instruction was refused. The second modified and given as fol- lows: "If the jury believe the accused insane at the time of the assault, and that such insanity produced a total deprivation of under- standing, they must acquit." The court further instructed the jury, in substance, that to justify a conviction they must find : Fbst. That the assault was made with intent to murder Carroll, but that the intent to murder may be inferred from the acts of the accused. SeconO. That sanity is presumed, and that insanity is a defence to be proved by tlu; accused, directly and clearly, so as to satisfy the juiy that the 21 N. J. (L.) 196. 4«4 THE DUKDEX OI- rUOOF OF INSAXITY. State V. Bartk'tt. for human life and individual securitj', it is quite apparent Ibut tlie energy of tlie rule is in no dcgri-e impaired. Wiien tlio ovitlence is all bcf(n'c the jiir}', they are to weigh it, witliout rtgaril to the side from which it comes, and determine whether or not the guilt of the prisoner has been established beyond a reasonable doubt. To hold that the quantity and weight of the evidence is in aiiv degree affected bv the fact that the prosecutor has been able to make a case without introducing any matter in excuse or justification, is clearly contrary to the spirit of the rule, and is giving to mere form an effect Avhieh, in many cases, must be con- temjtlated with great pain ; inasmuch as juries miglit feel bound to llml the prisoner guilt}' of a capital ci'ime, when, in thiir consciences, tliey had serious doubts of tlic existence of malice or of mental cnpncily sullieient to charge the piisoner. Such a doctrine must inevitably lead to a constant struggle on the part of the prosecutor to i)rove his c:ise without introducing anv evidence of tht)se facts or circumstances uuon which the respondent is luiderstood to rely. In a large niunher oi' cases, with skilful management, he might succeed, and thus deprive the accused of that protection wliich the rule, independent of all techni- cality or matters of form, was designed to afford. The conllict which exists has probably arisen, in a great degree, from an attempt to apjily to criminal causes the rules which govern the trial of issues in civil causes. In the latter, wliero the defendant sets i\\< matter in excuse or avoidance, he must establish the defence by a pre- l)onderance of proof; and by analogy it has sometimes been held, ih criminal cases, tiiat matters of defence arising from accident, necessity, or infirmity, must be estal»lished by alike preponderance of proof. In some cases it has been carried so far as to require the same quan- tity of evidence to pi-ove such matters of defence as to prove the commission of the crime, namely, enough to remove all reasonable doubt. But we think there are marked distinctions between the two classes of liials, and that the rules as to the weight of evidence or bur- then of proof in civil cases, are not safe guides in criminal causes. In civil causes the burthen of proof is, in general, upon the party who maintains the affirmative ; and, when thrown upon the defendant it is because he sets up by his plea, matters which avoid the effect of the plaintiff's allegations, but do not deny them. It is, therefore, right that the burthen of proof should be upon him to establish the truth of such matters in avoidance by a preponderance of evidence, especially as nothing more is required than to render tlie truth of such matters more probable than otherwise. In criminal causes, the trial is usually 1 issue all the alles:at:ous in t'le indictment upon a pk put IULE>< IN CIVIL CA8E.S NUT ArPLICAHLE. 48.") All Kluiiiciits of II C'rimc Must be Trovt'd. and, ui)oii cvory sound principle of pleading and evidence, the burthen is upon the prosecutor to sustain them by sat! -factory proofs. A sys- tem of rules, therefore, by which the burtlien is shifted upon the ac- cused of showing any of the substantial allegations in the indictment to be untrue, or, in other words, to prove a negative, is purely artificial and formal, and utterly at war with the humane principle whicli, in favoreni citr.e, requires the guilt of the prisoner to be established l)eyond reasonable doubt. Not only so, but, fairly considered, such a system dorives no countenance from the rules which govern the trials of civil causes, inasmuch as in res[)ect to all the allegations in the declaration, provided they arc put in issue, the burthen of proof, in general, rests witli the plaintiff. The indictment in this case is for an assault with intent to commit murder; and, by the well settled definition of tlie offence, murder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being under the peace of the Stiite, with malice aforesaid, either express or implied. To justify a conviction, all the elements of the crime, as here defined, must be shown to exist, and to a moral certainty, including the facts of a sound memory, an unlawful killing, and malice. As to the first, the natural presumption of sanity \s prima facie proof of a sound memory, and that must stand unless there is other evidence tending to prove the contrary ; and then, whether it come from the one side or the other, in weigiiing it, the defendant is entitled to the benefit of all reasonable doubt, just the same as upon the point of an unlawful killing or malice. Indeed, the want of sound memory repels the proof of malice, in the same way as proof that the killing was accidental, in self-defence, or in heat of blood ; and there can be no solid distinction founded upon the fact that the law presumed existence of a sound memory. So the law infers malice from the killing when that is shown, and nothing else ; but in both cases the in- ference is one of fact, and it is for the jury to say whether, on all the evidence before them, the malice or the insanity is proved or not. In- deed, we regard these inferences of fact as not designed to interfere ia any way with the obligation of the prosecutor to remove all reasonable doubt of guilt ; but are applied as the suggestions of experience, and v/ith a view to the convenience and expedition of trials, leaving the evi- dence, when adduced, to be weighed without regard to the fact whether it come from one side or the otljer. Our opinion, then, is that the inference which the law makes of sanity, malice, and the like, is to be regarded as merely a matter of evidence and standing upon the same ground as the testimony of a 480 THE lUUDKX OF PIIOOK <)l" INSANITY. Sluto V. Uartlett. witness ; ' and in this respect is lii\e the presumption of innocence. - Nor does it shift tlie burthen of proof in tiie sense of clmnging the rule ns to tlie (quantity of evidence ; but is merely jn'hna farie proof of the sanity, or malice, upon which, other tilings being sliown, the Jury may find u verdict of guilty. If further evidence is offered upon the point, b}' either party, tending to repel the presumption, the whole must be weighed by the jury, who aretodcterminewhether thegniltof the prisoner is established beyond a reasonable doubt. Tlie criminal intent must be proved as much as the overt act, and without a sound mind sudi intent could not exist; and the burthen of the proof must always remain with the prosecutor to prove both the act and the criminal intent. In the English courts, the direct question does not appear to have oeen discussed, though it is laid down by the elementary writers that when the defence is insanity, tlio l)urtlien of proving it is upon tlie prisoner.^ In Foster's Crown Law,"* it is said : " In ever}' charge of mur- der, the fact of killing being first proved, all the circumstances of acci- dent, necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him ; for the law presumeth the fact to have been founded in malice, until the contrary appeareth ; and very right it is that the law should so presume. The defendant, in this instance, standeth just upon the same ground that every other defendant doth ; the matter tending to justif}', excuse, or alleviate, must appear in evidence before he can avail himself of them." So it is laid down in 1 East on Criminal Law,^ and Hawkins' Pleas. "^ On this point Ornhys Case'' is relied upon as a leading case; but it will be observed that the question of the quantity of the evidence was not at all considered, and its weight, as an authority, is greatly dimin- ished by the fact that it was there held that whether there was malice or not, was a question of law ; and so, also whether the act was deliberate or in the heat of passion. In the opinion of the judges, in answer t> nnes- tions propounded by the House of Lords, ^ Tind^m., . J., says: " Every man is presumed to be sane and responsib' .s orimes n'tjl the contrary is shown to the satisfaction of the j , and that tt •.- • Greenl. Ev., sects. ;}3, 34. 2 See Sutton V. Sadler, 1 Eng. C. L. 87. ' Rose. Ev. (15th Am. ed.) 1944; Russ. on Or. 10, citing Bellingham's Case, 1 Colllnson o:i Lunacy, 636, and Hose. Ev. 946, and note to Rex V. Offord, R C. & P. 168, where the judge told the jury that to support such de- lence, it ought to be proved, beyond rea- sonable doubt, that the i jpondent was insane. * p. 255. ' p. 224, 230. 8 Ch. 31, sect. 32; 4 BL Com. 201. ' Reported 2 Str. 70(5, and, also, in Ld. Raym. 1>*I5, and decided in 1727. 8 Reported in note to Reg. v. Higginson, I C. & K. 130. UUKDEN OF PllOOF OX I'UISOXKIt. 487 Of FuctsParticiiliirlv Wlthlu Ills KiiowU'iliri' tablish II (lofonce on the ijromul of insanity, it mnsf 1h> clearly proved tliat, at the time of committiiig the net, tlio piuly accused was laboriiij; under such a defect of reason, from disease of mind, as not to know the nature and quality of the act he was doing, or if he did know it, that ho did not know it was wrong." Another class of cases in the English courts, are referred to in Whar- ton's Criminal Law,* as cases wiiere the facts of the prosecution are conceded, but the defendant sets up some matter in excuse or avoid- ance ; in which event it is said that the presumption of innocence no longer works for the defence, and such matter of excuse or avoidance should be proved by the defendant by a preponderance of testimony. The cases cited in support of this doctrine are prosecutions for selling liquor without license, shooting game without the necessary qualifica- tions, practising medicine without a certificate, and the like. Some of these cases were civil suits, brought for the penalty, and the substance of the doctrine lield in them all, was, that the affirmative of the facts l)eing with the defendant, and matter being peculiarly within his knowl- edge, the burthen of proof was upon him. But the question before the court in this case was not considered, and it was nowhere announced tliat in case evidence was adduced by the defendant, tending to prove such fact, the jury must require that it should be made to preponderate in his favor. It will be perceived, then, that according to the general statement of the English doctrine, which is fairly expressed in the extract from Fos- ter's Crown Law, which we have quoted, the obligation of proving any circumstances of accident, necessity, or infirmity, which may be set up as a defence to a charge of murder or other crime, is thrown ui)on the prisoner ; unless such proof arises out of the evidence offered by the prosecution. It is said, indeed, that such circumstances must be satis- factorily proved ; but it is not slated by what quantity of evidence, whether such as to preponderate in favor of the prisoner, or whether he is to be entitled to the benefit of reasonable doubts, as in other cases. When we consider, however, that the passage clearly applies to every- thing which rebuts malice, whether by showing that the act was justifia- ble, was done in necessary self-defence, or that the prisoner was not capable of committing the crime by reason of insanity, it may well be urged that nothing more was intended than this. If the prosecutor has proved the commission of the offence without disclosing any circum- stances of justification, necessity, or infirmity, or other matter of de- pp. 201, 2G5. 4S8 THE liUKDEX OF PROOF OF INSANITY. State V. Burtlett. fence relictl upon by the accused, then tlie burthen will be upon the latter, to olTer so much proof of the matters constitutint^ his defence, as will, upon the rules of law, entitle him to a verdict of not guilty. Not that his proof shall be suflicient to establish such facts by a prci)onder- ance of evidence, but sutficient to entitle him to an acouittal. If it wer*^ net so, what shall be the rule when soma evidence of the matter in excuse or justificaticn unavoidably creeps in with the government proof, and still the accused offers more to the same facts? To hold that the rule upon Avhich the life or death of a human being may depend, is to be affected by a circumstance so trivial before any enli 3 Inst. 47. BURDEN OF TUOOF ON PHO.SECUTIOX 497 Concurring Opinion of IJrowii, J. the crime ? inderstand- no discern can be no lie's choice ihat has no not contro- )ntrary ap- nd. I am nee, which obligations nand, thai •e can be u at common ists. The 11 the pur- It is thus emory and being, and implied." is of the me. Tlie y and dis- eprivcd of he king's expressly y spite or le dictate of these hey must risonei' is prosecu- any rea- f killing, ;e act are of leaves le scales he ques- tion, shall not the prisoner have the benefit of the doubt? And if he is entitled to the benefit of the doubt in regard to the malicious intent, shall he not be entitled to the same benefit upon the question of his san- ity, his understanding? For if he was without reason and understanding at the time, the act was not his, and he is no more responsible for it than he would be for the act of another man. The cases which have arisen under the license laws, and the English game laws, and when the doubt has been upon the existence of the license or the necessary qual- ifications, are not analogous to the present; because the necessary qualifications and the license upon which the defendant relied for a de- fence are entirely separate from and independent of the acts which con- stituted the offence. In i\\Q Commonioealth v. ForA;,' the question in dispute was provocation or mutual combat ; the Supreme Court of Mas- sachusetts held that " if the case or the evidence should be in equiUhrio, the presumption of innocence will turn the scale in favor of the accused. But if the evidence does not leave the case equally balanced, then it is to be decided according to its preponderance." In the case of Com- monivealth v. ^ojjfer.s, 2 the defence was insanity; and it was held that being in the nature of a confession and avoidance, it must be shown beyond a reasonable doubt to entitle the jury to acquit the accused. These two cases are irreconcilable in principle, and the reason given for the latter is utterly unsound ; for the defence of insanity so far from confessing the offence and then seeking to avoid it, denies absolutely the existence of sufficient capacity to incur guilt and commit crime. The answer of the judges, as given bj- Tindai.l, Ch. J., in McNagJiteii's Cuse,^ does not by any means dispose of the question under considera- tion. He says : " The jury ouglit to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be resi)onsible for his crimes, until the contrary is proved to their satis- faction ; and that to establish a defence on the ground of insanit}', it must be clearly iiroved that at the time of the committing of the act the party was laboring 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, that he did not know he was doing what was wrong." These expressions are not without their value, but they furnish no guide when the question is shrouded in doubt and obscurity. Wlien psycho- logical science shall be able to define with precision the exact line wliere reason leaves and unreason supervenes, then we shall be better able to say what is to be considered the clear proof of a defect of reason, re- ' 9 Mete. 93. 2 7 Mete. 500. 3 10 CI. & F. 200. 82 498 TlIK BUItDEN OF PROOF OF INSANITY. roople V. McCann ferred to in this opinion. Wliat was said by IIouxblower, C. J., in State V. Spencer,^ is not consistent with itself. After asserting tliat, when tliore is doubt of tlic insanity, the jury ought to find against tliu prisoner, it proceeds to say: " I do not mean to say that the jury are to consider him sane if tliere is the least shadow of a doubt on that subject, any more than I would say they must acquit a man when there is tlie least sliadow of a doubt of his having committed tiie act. What I mean to say is that when the evidence of sanity on the one side, and insanity on the other, leaves the scales in ecjual balance, or so nearly poised that the jury have a reasonable doubt of his insanity, then a man is to be considered sane, and responsible for what he does. But if tlio probability of his being insane at the time is, from the evidence in the case, very strong, and there is but slight doubt of it, then the jury would have a right, and ought, to say that the evidence of his insanity was good." I find it diflBcult to reconcile the different parts of this opinion. The result, however, seems to be that the jury are to be governed by the degree of uncertainty in which the question is left by the proof. Whatever has fallen from these eminent men will, doubtless, be accepted with the most profound respect ; but what they have said would be en- titled to greater weight, upon the ])resent occasion, did it distinctly appear that their attention was directed to the circumstance that, not- withstanding the legal presumption, the sanity of the prisoner's mind is, under all the definitions of the crime, to be made out affirmatively upon the trial as a part of the case for the prosecution. I conclude, there- fore, that the judge erred in his charge to the jury. If my brethren see no objection to the form in wliich this question comes before the court for review, under the provisions of the third section of the act of the 12th of April, 1855, to enlarge the jurisdiction of general sessions of the peace in and for the city and county of New York (a subject which I have not been able to examine), then the judgment should be reversed and a new trial granted. Whatever may be the event, I have deemed it a fit occasion to discuss the principal question involved in the judge's instructions to the jury, to the end that those who preside at the trial of persons accused of capital offences may know whether the presumption of innocence applies to all, or only some of the facts which constitute the crime. All the judges concurring. Judgment reversed and new trial ordered. > 21 N. J. (L.) 196. BURDEN OF I'llOOF OX ruOSECUTION. 499 O'Conncll v. People. R, C. J., in ertiiig that, against the he jury are ubt oil that when theie let. What e side, and r so nearly then a mail But if the jnce ill the jury would sanity was is opinion. »vernocl by the pi-oof. e accepted uld be en- distinctly that, net- 's mind is, ively upon de, therc- ethren see the court act of the essions of eet whicli 3 reversed e deemed e judge's le trial of sumption 3onstitute ''dered. BURDEN OF PROOF ON PROSECUTION. O'CoNNELL V. People. [87 N. Y. 377.] In the Court of Appeals of New York, January^ 1882. Hon. Charles Andrews, Chief Justice. '• Theodore Miller, Robert Eakl, George F. Danforth, |- Judges. Francis M. Finch, Benjamin F. Tracy, It The burden of proof Is upon the prosecution to show by the whole evidence that a person charged with crime, alleged to have been committed in a state of insanity, is sane. Ekrou to the general term of the Supreme Court, in the Third Judicial Department, to review a judgment entered upon an order made September 20, J 881, which affirmed a judgment of the court of general sessions iii and for the county of Albany, entered upon a verdict convicting the appellant of an assault with intent to kill. The fact of the commission of the alleged assault by the prisoner was proved, and upon his behalf an attempt was made to show he was insane at tlie time of the assault. This question was submitted in the follow- ing language: " You are to determine, from the evidence, whether or no he was insane at the time of this occurrence. The presumption of the law is, in this instance, against the prisoner, as in the other it was in his favor. He is presumed to be innocent of the performance of an act until he is proven to be guilty. He is presumed to be a sane man, and amenable to all the appliances of the law, until he convinces you, by evidence, that he is insane. And he is responsible for the appliance of the law urtil he relieves himself by convincing you that he is insane., and not responsible, and by insanity is to be understood, in the sense of the law, a diseased condition of the mind and conscience of the person so as not to be able to comprehend the nature and quality of the act which he does, and so that he is not able to determine the right or the wrong of that act. If he can determine those two, the nature and quality of the act, and is able to determine whether or no that act is. right or wrong in the light of God's law, then he is not insane, and is not relieved from the responsibility attaching to the act which he does. * * * If a man does not comprehend the nature and quality 500 TIIK DURDEN OF PIIOOK OF INSANITY. O'ConiiL'll V. People. of that which he docs, and the right or the wrong, then he is relieved ; if he docs comi)rchend both, then he is responsible for that which lie does. If you have a reasonable doubt, from the evidence in this ease, t!iat the prisoner is guilty of this crime, then you slioiild give him tlie l)cnefit of tiiat doubt, and he should stand upon his ac(iuittal; if you have no such doubt, then you shmild pronounce him guilty," At the close of the charge, the prisoner's counsel requested the judge to charge, " that if, from the evidence in the case, a reasonable dmilit arises in the juror's mind as to the sanity or insanity of this dcfciulant, that he is entitled to the benefit of that doubt." The court: "No, I decline to charge that." A further request to charge, " the defence are not required to estab- lish, beyond a reasonable doubt, the insanity of the prisoner ; if the evidence raises a reasonable doubt whether he was insane or not, he is entitled to that doubt. The court: " I decline to charge that." The prisoner's counsel excepted to such refusals to charge. Further facts appear in the opinion. D. Cacly Herrick, for plaintiff in error. J. II. Clnte, for defendant in error. Daxkoktii, J. — The appellant was convicted of an assault with intent to kill. The conviction was afflrmed by the general term of tlic Supreme Court, and upon appeal from that decision two points arc made in his behalf. First, that the court erred in charging the jury. In support of this proposition it is assumed by his counsel that the judge charged " that the defence of insanity is an affirmative defence," and the prisoner bound to satisfy the jury b}^ proof that he was insane. Second, that the court erred in refusing to charge that the defendant was entitled to the benefit of any reasonable doubt arising on the evi- dence as to his sanity or insanity. "We think neither are well taken. The questions upon the trial were first, were the acts charged com- mitted by the prisoner, and second, at the time of their commission was he in such condition of mind as to be responsible for them. If answered in the alHrmative the acts constituted a crime, and the conviction was proper. As to each, therefore, the burden was upon the prosecutor, foi- upon the existence of both the guilt of the prisoner depended. This result follows the general rule of evidence which requires him who asserts a fact to prove it. That the first proposition was estab- lished is not denied. The legal presumption that every man is sane was sufficient to sustain the otlier until repelled, and the charge of the judge, criticised in the first point made by the appellant, goes no further. If the prisoner gave no evidence the fact stood ; if he gave evidence tend- relieved ; which he this case, e him tlie il; if you the judge l»le doulit lefeiidant, : "No, I I to estab- er ; if the not, he is Further ault with nil of the :)oint3 are the jury, tlie jmlgt' (ice," and IS insane. Jefendaiit a the evi- ell taken, ged colli- sion was answered 3tion was jutor, foi- lires him as estab- sane was he judge, ther. If ace tend- IJUUDEN OF PUOOF ON IMiOSKCl TION. r.oi O'Coniii'll V. rt'oplc iiig to overthrow it, the prosecutor might jiroduce answering testimony, but in any event he must satisfy tlie jury, upon the whole evidence, that the prisoner was mentally responsible ; for the affirmative of the issue t(!ndered by the indictment remained with the prosecutor to the end of the trial. Without going to other authorities these observations are warranted by Brotherton v. People,^ wlu-re the general rule above stated was applied to (juestions similar to those before us. It was not violated by the trial court. After referring to acts consti- tuting the offence charged, and the rules of law applicable thereto, tlie learned judge called attention to the fact alleged in behaif of the prisoner, that he was an insane man at the time they were committed and so not responsible therefor, and directed them " to determine from the evidence whether or no sucli is the fact." " lie is presumed," the court said, "to be a sane man, until he convinces you by evidence that he is insane ; " delined insanity in a manner not objected to, and said, ' 'if such was the prisoner's condition he was relieved from responsibility, otherwise he was responsible for that which he does," and in conclusion said, "if you have a reasonable doubt, from the evidence, that the prisoner is guilty of this crime, then you should give him the benefit of that doubt. ' ' These words related to and covered the whole issue tendered by the indictment. It is quite impossible that the jury should have misapprehennnity must be as clear and satisfactory, in order to acquit, as the proof of tlie crime ought to be t(.' lliid a sane man guilty;" or to charge that if the jury have a. rcasouable doubt a.s to the insanity of defendant tliey ought to convict, is error. 2. Test of Insanity. — No i)crson can be guilty of murder who has not sufficient discern- ment to distinguish between good and evil, and who lias no cousciousnesj of doing wrong in the act he is cunmiilting. 3. Hypothetical Case. — When to be Submitted. — It is not error for the court, on a trial for niurder, where insanity is set up as a defence, to require the defendant to submit his hypothetical case to his jjrofessional witnesses, before the rebutting evivas an old gray-headed man, about sixty years old. He was a quiet, good old man. She said Dove was a very passionate man ; often got very mad without any cause ; would lie violent and irritable when no one had troubled him. Sometimes threatened witness and her mother, and had struck her without provocation. He frequently threatened to kill some- bod}'; frequently said he would have the heart's blood of somebody, walking the floor in a great fury, throwing his arms wildly about, tho^ ''.■ nobody had done anything to him. His throats were not at an3-b ) i in particular. During one evening, while they were all sitting around the fire, he jumped up, gathered a chair, and tried to strike Diggins ; but was prevented by a young man present. There was no cause for this, no quarrel, nor was any wai-ning given of his attack. He was not drunk, but had taken two or three drinks. He often complained of headache ; he so complained during the day before Diggins' death. To the question of the attornej'-general, whether Dove, from all she knew of him, was a man of sane or insane mind, answered: She never saw any thing wi'ong about him ; he was a very quiet man ; a sullen and irritable man often, but talked like a man of sense. Sarah Holland, the mother of the last witness, gave the same account of the transaction, and stated the character and peculiarities of Dove about as the last witness. John W. Mathis proved that Dove was a lazy, trifling, indolent man ; he was a strange man ; nobody knew him ; witness never knew him, though ho iiad lived with him. Sam Tally, worked with Dove ; he talke 1 like any other man ; he never had much to say ; was very quict. One day, when they were working, he suddenly stopped, and said, with an oath, " he would kill any man who would not work for himself, but made other people work for him." He said Diggins did not work for himself, but made him work for him ; that he would kill him before he would stand Diggins PC? it any longer. This was some time before Diggins was killed. was not present, and they had no quarrel, any other man. lie talked and acted like DOVE V. STATE. ')(),> The Evidence in tlie Case. 1 went off the sill of yed in tlio I lie wouM they went e saw Mr. Idren, and ce. Dove was once i^gii was iiiet, good got very 10 one had , and had kill some- omcbody, It, tho : ;! ; anyboiiy g aroiuul Diggins ; cause for I was not ained of ath. To e knew of saw any irritable e mother tid stated Joiui he was lough he like any \y, when ith, " he de other self, but Id stand Diggins 3ted like The State introduced and read a paper purporting to be the return of a jury of inquest over Diggins' body, over the objections of de- fendant. Jefferson Sly, for defendant, had employed Dove to work. He quit without cause ; witness went to see him ; complained of his head ; acted strangely ; walked the floor, and acted like a drunken man, but he had no whiskey. While Dove worked for witness, he was very taciturn and gloomy ; would sit by himself for hours at a time ; indulged in talking to himself a great deal ; would mumble and sing to himself ; complained often of pains in his head ; wouldn't work as long as he had an3-thing in his house to eat. He was asked by defendant's counsel what, from all he had stated, was the condition of his mind: was he of sound or un- sound mind? The attorney-general objected to the question, and the objection was sustained by the court. James Andrews, T. J. Sly, and Jeff Wooten, testified to similar characteristics of Dove as the last wit- ness. Patsey Cozzart, a sister of Dove, testified that he was forty- seven or forty-eight years of age ; was born in Alabama ; went to East Tennessee, and lived there until lie was thirteen or fourteen 3'ears of age, when he cme to Nashville. He was a clerk for Mr. Norman, in the grocery business, one or two years. While engaged with ]Mr. Nor- man he received a bad wound on one side of his head ; he was not expected to live. He was deranged from the wotind. He talked silly !md incoherently. He stayed with witness, while he was laboring under the wound, about four months. He then left, and returned to Mr. Nor- man's. He was not then well ; he was not much better. He complained of pains in the head all the time. He received the injuiy about four- teen or fifteen years ago. BefoiC receiving the injury he Avas as smart, active, and energetic as any ma 1. She never saw him out once after he left, and that was twelve or fifteen yearf, ago. She saw him but a few minutes ; he said his head was not well. The counsel for the defendant announced to the court, that he ex- pected to examine several physicians, as experts, on the subject of de- fendant's sanity, but desired, before doing so, that the State might examine any further witnesses she might have on that subject. The court ruled that the defendant must complete his testimony before the rebutting evidence of the State should be introduced. Defendant ex- cepted to the ruling. Dr. D. F. Wright testified, that he had been practising as a physician and surgeon for twenty-seven years. He had examined the head of de- fendant, and found that he had received an injury to his head, appar- eutly from a blow. It appears that there are two injuries to his head — 50(1 BURDEN OF I'ROOP OK INSANITY Dove V. State. one on the right side, just below the crown ; the skull has been fractured, and a portion of the bone is depressed upon the brain. The depressfcl portion is fractured about the centre, and a p'^ce of the skull bone is broken off, which protrudes through the fracture, and is now sticking down upon the brain. One of the injuries may have been the result of concussion, resulting from the blow which caused the depression. Without knowing anything of the previous history of the defendant, witness said such an injury was bound, more or less, to produce a diseased mind. Such an injury might produce disease of the mind that might lay dormant an indellnite length of time, or it might indicate its presence only in paroxysmal insanity. Its presence might only be de- tected by some startling crime, that would, for the first time, call atten- tion to symptoms tliat only an experienced person could have noticed. Paroxysmal insanity woidd be the character of insanity most likely to result fi'om such an injuiy. During the intervals between the paroxysms of one afflicted with that form of insanity, the patient might appear rea- sonably rational, and might converse with intelligence. The symptoms of paroxysmal insanity ore, moodiness, gloominess, melancholy, love of solitude, a feverish restlessness, irritability, pass.'on without apparent cause. The persons afflicted often commit the most horrible crimes without any known cause, murders without motives discernible, and often upon those persons to whom they are most dearly attached, or those to whom they are indifferent. The patient is often overpowered by an impulse to commit murder, and yet is conscious of the crime he commits, and of the penalty incuired. He may converse rationally about his crime, confess, or seek to conceal it. An effort to conceal the crime, or to escape, would not be evidence of sanity. The counsel for defendant then submitted to tlie witness a written synopsis of the facts, as proven in tlie case, relative to the condition of defendant's mind, and asked his nodical opinion on the hypothetical case stated. He said the symptoms there stated were tlie i)recise symp- toms of one laboring under paroxj'smal insanity, and that he should say the strong probability was, that he was insane at the time of the com- mission of the crime ; that, without personally knowing the facts and the defendant, he could not put it in stronger langua;j:e. Drs. T. D. Johnson and J. M. Larkins were asked their opinions on the same hj'pothetical state of facts, and they fully concurred in the opinion given by Di-. Wright. After charging the law correctly as to the several grades of homicide, the circuit judge proceeded to instruct the jury on the defence of in- sanity, as follows : — BURDEN OF PR001;\ 507 Expert Evldencu; Order of Proof. Ben fractured, rhe depressed skull bone is now stickiim the result of 3 depression, le defen^lant, io produce a the mind that t indicate its it only be de- le, call atten- have noticed, lost likely to le paroxysms t appear rca- lie symptoms holy, love of )ut apparent rrible crimes X'rnible, and attached, or overpowered of the crime se rationally ft to conceal iss a written condition of hypothetical :'ecise symi)- 3 should say of the com- ic facts and opinions on irred in the f homicide, once of in- "The law presumes a man to be sane, until the contrary is i)roven. The evidence of the insanity of defendant must be as clear and satisfac- tory to overturn the presumption of the law in favor of sanity, as it is required to be, to overturn the presumption in favor of innocence. If the testimony leaves only a doubtful question, whether he was insane at the time of the killing, the presumption of the law turns the scale in fa- vor of the sanity of defendant. In such case the law holds the defend- ant responsible for his acts. If the evidence leaves it doubtful in your minds, whether the defendant killed the deceased, then you sliould ac- quit; for there you find a reasonable ground for doubt, whether the defendant committed the homicide ; and in such case, the testimony is not sufficient to overturn the jnesumption of innocence. But where it is admitted, or clearly proven, that the defendant committed the homi- cide, but it is insisted he was insane at the time he did it, and the eii- dence leaves the question of saniry in doubt, then you should find him guilt}' ; for the other presumption arises, namely : that every man is presumed to be sane until the contrary is proven ; or, in otlier words, where evidence of sanity on one side, and of insanitj' on the other, leaves the question in an even balance, or so nearly poised that you have reasonable doubt of the insanity of the defendant, he is in that case to be considered sane, and therefore responsible for his acts. The proof of insanity at the time of committing the homicide, ought to be as clear and satisfactory in order to acquit on the ground of insanity, as the proof of committing the act ought to be to find a sane man guilty." (Omitting rulings on other points. ) 3d. It is said the court erred in requiring the defendant to submit his hypothetical case to the medical experts, before the State's rel)utting e\idence on this question of insanity was given to the jury. The court followed the usual practice of requiring the defendant to adduce all his evidence before the State should be called on to bring its rebutting evi- dence. If the defendant had applied to the court, after the State had finished its rebutting proof, to examine the medical experts, with the additional evidence of the State before the jury, and the aiiplication had been refused, it would have been error. But no such application was made, nor was the defendant in any way damaged, as the State intro- duced no rebutting evidence which made it necessary to re-examine the medical experts. (Omitting another irrelevant ruling.) 5th. It is insisted that it was error in the court to refuse to allow witnesses, to the question of sanity, to express an opinion as to sanity of defendant, after having stated facts upon which their opinion was 508 THE BURDEN OF PKOOP OF INSANITY. Dove V. State. based. This question arosd in the case of Gibson \. Gibson J Upon examination of the authorities, which were not found very satisfactory, the court laid down the following propositions : " First. Attesting wit- nesses, and they only, are trusted to give tlicir opinion merely, and without cause or reason asssigned, of testator's sanity. Second. Physi- cians may state their opinion of the soundness of a testator's mind, but they must state the circumstances or symptoms from which they draw their conclusions. As * all others, their opinions, considered merely as opinions, are not evid*. nee. But having stated the appearance, con- duct or conversation of testator or otlier particular fact from which his state of mind may be inferred, they are at liberty to state their infer- ence, conclusion or opinion, as the result of those facts." The court adds: "After all, it is the facts which a witness details, the conduct which he describes, which chiefly and principally constitute the testi- mony to be relied on," This question was again fully examined in the case of Norton v. Moore,^ where the same rule was adopted. The rejec- tion of the opinions of the witnesses, based upon the facts and circum- stances stated by them, was erroneous. 6th. It is insisted that the judge trenched upon the province of the jury in charging them as follows : " But the plea of insanity is put in for the defendant. He admits that he killed the deceased, but says that his mind was so much diseased at the time of the killing that he was in- capable of committing the criine of murder, he being insane." The obvious meaning of the judge was, that the plea or defence of insanity was put in for the defendant, and not that the defendant had put in a formal plea of insanity to the indictment. The residue of the statement was evidently intended to instruct tlie jury, that in ri'lying upon the defence of insanity tbe killing was necessarily admitted. We cannot well see how the jury could have been mislead, or how they could have misunderstood the true meaning and purport of this language. We, therefore, think this assignment of error is nor well taken. 7th. The last and most imi)ortant error assigned is, as to that portion of the charge already quoted, in which the judge, among other things, said : " The jm)ot of insanity must be as clear and satisfactor3', in order to acquit on the ground of insanity, as the proof of the crime ought to be to find a H.-ine man guilty." The plain and unambiguous meaning of this language is, that the defence of insanity cannot be available, unless it is proved beyond a reasonable doubt. In another portion of the ciiarce, the judge says : •' That, if the evidence of sanity and of insanity fe 1 !) Yerg. 329. " 3 Head, 480. BURDEN OF PROOF ON PROSSErUTION, 500 Dove V. State. >n. ' Upon itisfactory, ;csting wit- icrely, and nd. Physi- mind, but they draw red mei-ely ance, con- which bis heU* infer- The court e conduct the testi- ncd in the rhe rejec- d circum- ice of the ^ is put in says that le was iii- ." Tlie insanity put in a itatement upon the e cannot uld have We, t portion r tilings, in order ought to aningof J, unless !i of the insanity be on an even balance, or so nearly an equipoise that you have a rea- sonable doubt of the insanity of the defendant, he is in that case to be considered sane, and, therefore, responsible for his acts." It is con- ceded that this cause is sustained by English cases, and by cases in a few of the States, but it is certain that it is in contravention of a large number of decisions in other States of the Union. We have had no case in our own State where the exact question in- volved in the present one has arisen ; but we consider the principle which must govern the decision as having been laid down in the case of C'^ffee, Ridley & Short v. T/te State,^ and followed ever since in subse- quent cases. These cases were detennined in 1832, and separate opin- ions were given by Judges Catron, Gkeen and Peck. The cases had been tried before Judges Stuart and Kennedy, of whom Judge Catron said : " They are gentlemen of decided talents, accurate and extensive information on the criminal law, and great experience." They had charged the juries, " that the law presumed the defendant innocent, and that presumption stood until the fact of killing was clearly made out by proof; and if they entertained a reasona})le doub! as to the fact of kill- ing by the defendant, they should acquit him ; but if the fact of killing by the defendant be proved, the law presumed hi'.u guilty of murder, miless the proof showed clearly and satisfactorily tie offence was one of less magnitude ; and, therefore, if they entertaiued doubts under the testimony, whether the act amounted to murder or manslaughter, they were bound to find defendant guilty of murder, as it lay upon the de- fendant to show clearly and beyond a reasonable doubt, that the offence was not murder, but manslaughter, unless it appeared otherwise in the testimony of the State." Judge Catron said: "The defendant is ohiu-gcd with tlie fact of killing and the intent with which it was done, find the fact and the intent, must concur to constitute the crime. The fact and intent are charged by the State, and must be proved to the conviction of the jury. But suppose they are not convinced that it is their duty to find the defendant not guilty ; that is what is meant by a reasonable doubt." In such case he says: " If, from this whole body of evidence, they are convinced of the* killing, but are not convinced that it was done with maUce, they ought not to find the defendant guilty of murder." Judge GuEEN said: " There is no reason in saying that a jury must ac- quit upon a doubt as to the fact of killing, and yet upon a stronger doubt as to the equally important fact of malice, they must convict. It ! 3 Yerg. 283. 510 THE BL'KDEN OF TUOOF OF INSANITY. Dove V. Statu. is admitted that if this state of the mind (doubt) exist as to the fact of killing, an acquittal must follow. But not so as it relates to the malice. And why ? Because we are told there is a legal presumption to afford the mind a resting-place. In answer to that proposition, it has already been shown that this legal presumption, which Yf as prima facie evidence of the fac*;, has been opposed by evidence so weakening its force as no longer to be satisfactory, and consequently a doubt as to the fact thus presumed, must now exist. I hold, therefore, that to warrant a verdict of guilty of murder — the whole evidence taken together — must gen- erate full belief of the guilt of the party as consisting in the killing with malice. Whether, therefore, the doubt exists as to the killing, or as to the evidence of malice in the perpetrator, it results in the same thing — that is, a doubt whether the accused be guilty of the crime of murder." Judge Peck concurred in the reasoning and conclusions of Judges Catuon and Gheen. The charges of the circuit judges were overruled, and from that time to the present the law has been settled in our State, that, if the proof fails to generate full conviction of every material ingredient constituting the crime of murder, the defendant must be acquitted. But the question is now raised, whether this prin- ciple of law is applicable to a case where there is reasonable doubt of the sanity of the defendant? The criminal judge, it has been seen, adopts the same doctrine as to reasonable doubt in the matter of sanity that Judges Stewart and Kennedy did as to the presumption of malice from killing. Is there any sound reason upon which it can be held that a doubt as to the malice in the killing shall operate as an acquittal, but that a doubt as to the sanity of the defendant at the time of the killing shall not so operate ? " If any person of sound memory and discretion unlawfully kill any reasonable creature, in being, and under the peace of the State, with malice aforethought, either express or implied, such person shall be guilty of murder." ' We have adopted the defuiition of murder given by Sir P^dward Coke. The person, to be guilty of murder, must be of sound memory and discretion; "for," as Blackstone says, "lunatics or infants are incapable of committing any crimo^ unless in such cases where they show a consciousness of doing wrong, and of course a dis- cretion or discernment between good and evil." Assuming that this interpretation of the words "sound memory and discretion " is sufficiently accurate, it may ^te safely stated that no per- 1 Code, 4197. BURDEN OF PROOF ON PROSECUTION. 511 ! to the fact of i to the malice, tion to afford it has ah'oady facie evidence its force as no ;o the fact thus rrant a verdict r — must gen- g in the killing the killing, oi* Its in the same f the crime of conclusions of it judges were been settled in iction of every the defendant L'tiier this prin- able doubt of has been seen, itter of sanity tion of malice hat a doubt as tal, but that a killing shall vfuUy kill any le State, with rson shall be murder given , must be of ys, " lunatics in such cases course a dis- memory and that no per- Dove V. Stato. son can be guilty of murder who has not snfllcient discretion or discern- ment to distinguish between good and evil, and who has no consciousness of doing wrong. The law presumes every person to have this sound memory and discretion. Therefore, when the defendant was put upon his trial for murder, it was not necessary for the State to adduce proof i)f his sanity. The presumption of law stood for and supplied the proof. If he relied on the defence of insanity, the burden of proof was upon him to show that he was not of sound memory and discretion, unless the proof of the State showed that he was not of sound memory and discretion. To warrant a conviction, it must appear that the accused was capable, at the time of the killing, of distinguishing between good and evil, and had a consciousness of doing wrong. If he was thus sane, he could act wilfully, deliberately, maliciously and premeditatedly. We have seen that, to justify a conviction for murder in the first degree, the State must show beyond a reasonable doubt that the killing was done wilfully, deliberately, maliciously and premeditatedly. All those are essential ingredients in the offence, and all must be proved beyond rea- sonable doubt. But suppose the proof in the cause makes it an even balance in the minds of the jury whether the defendant was sane or in- sane? How, in that state of doubt, could the jury find that the defend- ant did the killing wilfully, deliberately, maUciously and premeditatedly? They are in doubt about his being of sound memory and discretion. Of course they must doubt whether he could have done the killing wilfull}-, (leliberatedly, maliciously and i)renieditatedly. Yet, in the case before us, the judge instructed them that if the proof left their minds in equipoise as to the sanity or insanity of the defendant, the presumption 0. law turned the scale, and the defendant must be regarded as sane. The presumption of sanity stands for sufficient proof of sanity until the pn sumption is overturned. When the proof of insanity makes an equipoise, the presumption of sanity is neutralized — it is overturned, it ceases to weigh, and the jury are in reasonable doubt. How, then, can a presumption, which has been neutralized by countervailing proof, be resorted to to turn the scale? The absurdity to which this doctrine leads will be more obvious by supposing that the jury should return a special verdict. It would be as follows : " We find the defendant guilt}- of the killing charged, but the proof leaves our minds in doubt whether he was of such soundness of memory and discretion as to have done the killing wilfully, deliberately, maliciously and i)remeditatedly." Upon such !i verdict no judge could pronounce the judgment of death upon ihe defendant. 512 THE BURDEN OF PROOF OF 1X8AMTY. Dovo V. Stutc. It is impossible to read the evidence in tliis case and not feel sliocked by the enormity and atrocity of tlie crime, if wc assume that the defend- ant was of sound memory and discretion. An old, quiet, inoffensive man is brutally cut to pieces with an axe while he is sleeping peacefully in the ro(Mn with the defendant and his family. No provocation liiid been given ; there was entire friendship and cordiality between tlieni when they retired to bed. Yet the jury found that the murder was attended with miti e the (le- 3, l)y way y pressed lal judge It is coii- it of sub- of Mliose is admit- t it is in- tition of ul would defence d reason - crimiuul, ;s proven Hc might Diggiiis. c policy and not he State ond rea- ose san- because . With i to that ;hat a new consider- mifortnnate class of citizens wlioso memory and discretion is found to lie t)f doubtful soundness and subject tlieni to imprisonment f(jr life? If the*Iaw, as it now stands, furnisijes no remedy for tlie protection of society against tlie danger of turning loose liomieidal maniacs, it is lime that the Legislature had provided a remedy. But it seems to us that every society has the remedy within its reach. We do not see what ol)stacle is in the way of having all such cases tried by regular proceed- ing to ascertain the fact of insanity, and for the jjroper disposal of its unfortunate victims.^ But section l^)!')4 of the Code provides specially that when the defence of present insanity is urged on the trial of a person cliarged with a crime which subjects him to imprisonment or death, it is the duty of the judge to submit the question of sanity to the jury as a prelimi- nary question, and if the defendant is found to be insane, the judge orders him to the lunatic asylum. The facts of the case might well have induced the judge to follow the directions of this section of the Code. Our duty is discharged in declaring that the defendant has been con- victed and sentenced to imprisonment for life contrary to law. We reverse the judgment, and remand the case for a new trial. NOTES. § 2'.) . Presumption of Sanity. — A person is presnmed to be sane until the con- trary is shown. Sanity is presumed to l)e the normal state of the human mind, and it is never incumbent upon tlie prosecution to fi;ive aflirmative evidence thatsueh state exists in a particular ca^e. The question, upon whom Is the burden of innof when insanity is interposed as a defenee in a criminal trial is one upon wliich there lias been a great amount of discussion, and much difference of ()i)in- iou. Three different theories are to be found in the cases on this point. Tlie llrst is that inasmuch as every man Is presunuid to be sane, the prisoner must over- come this presumption by proving his insanity beyond a reasonable doubt. The second is that the presumption of sanity must prevail until it is shown to be false to th(! satisfaction of the jury by a preponderance of the evidence. The third is that ^\!u're any evidence is introduced tending to cast uncertainty upon the sanity of the prisoner, the State is bound to prove his sanity, like all other elements of the crime, beyond a reasonable doubt. §29. a. Burden on Prisoner — First Theory.— The first theory, ,./.., that the prisoner must prove his insanity beyond a reasonable doubt, was laid down in ' Code, 1.553. The obstacle Ues in the fact that the defence of present insanity is never |mt in when the fact of insanity at the time of the offence will answer the purpose.— [UKP. - People r. Kirby, 2 Park. 28 (182?.). 3 Walter v. People, 32 N. Y. U7 (lf305). IMAGE EVALUATION TEST TARGET (MT-3) /. {./ k L J 1.0 I.I 128 1^ 2.2 1*0 11-25 i 1.4 1^ ill 1.6 Vi ■^# /. V Hiotographic Sciences Corporation iV 4V [V i ■^ <> >. c^ 23 WIST MAIN STRHT WEBSTER, N.Y. MS80 (716) 873-4503 'v- A ^ 514 THE BURDKN OF PROOF OF INSANITY. Notes. early cases In Alabama' and Missouri,'^ but has boon since overruled,' and pre- vails at present in only two States, Delaware' and New Jersey.' In iState v. Ilen- Icy,^ in cliarfiin;? the jury the jud^e said: "There is but one more matter which tlie court feels (tailed upon to notice in the case, and that was the concluding request of the counsel for the prisoner, that we should instruct you that if after a mature consideration of all the evidence in it, you shoidd have any reasonai)ie doubt on this last point as to the mental capacity and criminal responsibility of the prisoner for the act in (piestion, you should ;;ive him the benefit of sueli doubt in making up your verdict. Hut the court does not consider the rule of law so to bo in relation to the plea or defence of insanity when the act of killing; is conceded, admitted, or positively proved by the evidence. For every sucli homicide is presumed in law to i)e murder until the contrary appears, and every person is presumed to be of sound ndnd until the reverse is shown, and as in- filty must be shown by the party who alleges or sets it up as a defence, it is \'i' iiibent and ol)ligatory on him to establish it as a fact in the case to the sat- is.*;-. : ion of the jury. The rule alluded to, as we understand it, has relation folely to the corpun delicti, or to the act of killing in the case siini)ly, and if the ^\ y ih any case of homicide, after maturely considering and weighing all the C'vider.ce for and against the accused, entertain any reasouable doubt as to that fact, it is their duty to give him the beuefit of it." § 2'.t. h. Burden on Prisoner — Second Theory.— Tho .second theory, viz.: that the presumi)tion of .sanity prevails until it is overcome by a preponderance of evidence sliowing the prisoner's insanity to the satisfaction of tlie jury is the ruk in the following States : — § 30. Alabama.^ § 31 . Arkansas.** § 32. Oalifomia. — The burden is on the prisoner to prove insanity, l)ut it may be establisheil by a preponderance of tlie evidence." In People v. Myers '" it was said: "As the burden of proving the existence of insanity rests upon the ac- cused, it follows that this fact must be satisfactorily established, iiud that Is by a preponderance of |)roof. The fact is not ])roved I)y raising ii doubt whether it exists or not." lu People v. Messersmith,^^ the court read to the jury extracts from ' stale r. Brinyea, ."> Aln. 241. ^ iistate t'. Iluting, 21 Mo. iHi. 3 Sec cases, p. fil8, post. < State «•. Danby, 1 Houst. Cr. Cas. 160 {\SiU); State r. West,! Houst. Cr. Cas. 371 (1873). » State V. Spencer, 21 X. J. (L.) 196 (1846). But New Jersey is probably ready to aban- don this rule. In State r. Martin, 3 ('rim. L. Mag. 44, tried in New .Jersey in 1881, IJe- pue, J. charged the Jury tliat " when an ac- cused sets up the defence of insanitj, tli3 burden of proof is U|i(in him; and to make effectual such a defence, the proof of tlie prisoner's insanity ou^bt to l)o latisfactory. Ue must ovcrcunie the legal prcsuniptiou of insanity by a dear preponderance of proof." • 1 If oust. Cr. Cas. 28 (1873). ' State 1'. Hrinyea, ."> Ala. 211 (1843) ; State V. Marler, 2 Ala. 43 (36 Am. Dec. 3!)S) (IWl) ; ISoawell r. State, 63 Ala. 307 (1S7'.») ; McAllis- ter r. State, 17 Ala. 434; seeywM', p. 874. " McKenzio v. State, 26 Ark. 334 (1870). " I'ooplc V. Wilson, 41) Cal. 13 (1874) ; Peo- ple r. McDonnell, 47 Cal. 131 (1873); Teople r. Coffmnn, 24 C.il. 2.10 (1864); People v. Myers, 20 Cal. SIS (1S«>2). '" 20 Cal. .MS (1862). "1 57 (;al. 575 (1881), citing People v. Myers, 20 Cal. 518. lU'UDEN OF PROOF r> , i'lMXOXEK. 515 Tlic- Hi. • ill Culifc.riila. iderancc of Kiiglish cases holdiiii; that insanity mnst bo proved licyond a roasonalilo donbt, and also a decision of tlio Siiprenie Court of tlie State to tlie effect tliat it is siilllcieiit If insanity be proved l)y a preponderance of evidence. On appeal it was lield tliut tin; ( liarf^c was contra(iictory and erroneous, and tlio verdict was set aside. In Pcd- I le. v. Bdl,^ Wai.lack, C. J., said: " Insanity, wlieii relied upon as a defenci! in a criiuinal case, is to be established l)y tlie prisoiuT by preponderating proof. It is an issue upon which lie ;.,)ltis the aflirniative, and before it can l)e availed of, lie is bound to establish not only tlie fact of insanity, but insanity of the charac- ter, i.e., arising from such a cause as in point of law amounts to a defence. If therefore, as here, there be a question as to whether tlu; supposed insanity was the result of intoxication Immediately inilulged or insanity caused by a habitual un 4itCal.48.'i (1875). ifiucal. ;ui (1881). » People r. Wilson, 4!) C.il. 13. * Com. V. Webster, 5 Cusb. 320. 5i(; THE BURDEN OF PROOF OF INSANITY. Notes. jury. It is a fact; and a fact proven by a preponderance of evifloncc Is a fact ' satisfactorily established.' As an expre.ssion, a preponderance of evidence i~ llio c<|uivalent of satisfactory proof. Wliile, tlierefore, tlie Instruction umlcr consideration may be faulty in pliraseology, it is, as a legal proposition, substaa- (ially correct." § .1.*?. Connecticut.— In this State the burden of proof is on the defendant;- and the jury mu.st be satislied tliat the i)risoner was of sound mind.'' § M. Georgia. — The same rule prevails in Georgia.* In Tlolsenbakev. Stnte,-nhv court said : " Prima facie, all |)ersons are to be considered sane, and this is tru'' in criminal as well as civil trials. If this be the legal presumption, it would seem to follow tliat unless tlie jury are .satislied of insanity they must consider tin prisoner sane. Periiaps the word aatisfud is ratlier strong, and were there any evidence here of ins.anity, we might hesitate to sustain the judge. IJut tlnn .seems to have l)een no .sucli evidence." In Westmoreland v. Utate,'' it was niauv a ground of error ou appeal that tlie trial court refu.sed to charge the jury tliai if tiny had a reasonable d()ul)t of the prisoner's sanity they sliould ac(Hill, but did charge them tliat llie law presumed sanity until the contrary is made to ap- pear, and that the burden of proof on this point is on the defendant, and tiiat " it onglit to bo made to appe.ir to a reasonable certainty, to your reasonable satis- fiction, tliat at the time of tlie commission of tlie act, he did not know the natui«' or luins of this, and mges that the .state should have introiluced this cvidunco in chief. The coin|)luint is without foundation. The law presumes every person of mature years to be of sound mind, and competent to commit crime. If the defence be insanity, it is to be proved finbstantially aBanindepende'ntfact,andthe burden of ])roof is on tho accused. I'pon this issue he ^ocs forward and the State re- buts." Id. " Tlie accused having introduce.! evidence lending to show that he was ol unsound mind when he committed the hoin iride, the court permitted the State in rebut tal to oirer cviiJuiue ti> pruvu that the defendant was of sound mind at the lime in •luestion. To this the accused objected, nn tho ground that the burden rested on liio .stiito to prove that tho defendant was of sound mind when lie committed the h<>ini cidc, and that tlic testimony should li.ivi' been otfcred in cliief. This precise point « :i> made by the accused when his case was pre viou^^ly before this court, and was decido'l adversely to his claim. This ought to li'' satisfactory, especially when all the aiillnM- ities accord with that decision." t;luiu i- Iloyt, 47Conn. .5I8(1SS0). ' State r. Johnson, 40 Conn. 136 (187.'?.) < Humphreys r. .'G.a. 55 (1872). ' 45 IjIii. 225 (1872); see post, p. 874. • State V. Fclter, 32 Iowa, 49 (1871) ; .State r. Urin-e, 4S Iowa, .V'.O (1878). - 4> Iowa, .').!0 (1878) ; gee post, p. 878. loncc Is ii f;i( t if evkleiUM; is ■uctioii under .iun, substiiii- e defendant.;- ev. State,-' Uu udtliisis true it would MH III L consider IIk ere there aiiv e. IJut there ' it was UKuie the jury that Id aci|Uit, lull i made to ap- , and that " ii iouable satis- uwthe nature wrouii." (hi Lhe ju(ij;eli.iii U! testimoiiv, thiin." For lling the jiirv uld ac(iuit. Uruce," an iii- u tlie ground at the (irnc in U objected, on rested on llie ndiint was of ted the hmnj should liavo cise point wa.-- case was pre Wii8 deciiU'il ought to li'' ill the auUi'ir- on." Stuie r. 136(1873.) ia. 190 (W?.'); n). \>. 874. (1871); Stdtc , p. HIH. BLKDKN OF TUOOF <)\ I'UISONKK. 517 Rule in Kentucky, Louisiana, Maine and Massachusetts. of insanity, it wassufllcicnt if the jury on all tiie evidence was reasonably satisfied that the prisoner was insane; that if the weight or preponderance of tlie evidence -hows his insanity, it raises ii reasonable doubt of his guilt, was approved on ap- peal, tlie court citing the earlier cases of State v. Felter and State v. Meicncrter. § 3(i. Kentucky. — In this State the burden of proof is on the accused. There must be more tiian a mere doubt raised as to tlie prisoner's sanity. Tlie pre- sumption of sanity must be overcome by a preponderance of proof in tlie pris- oner's favor.' § :57. Loviisiana. — In Louisiana the insanity must be clearly shown to the sat- isfaction of tlie jury to have existed at tht; time <»f the commission of the act.- Tlie burden of proof, where temporary insanity is alleged, is on tiie accused, aud the insanity must be proved beyond a reasoiuible doubt.' § ?iS. Maine. — In this State the burden rests on the prisoner to establish hi.>* insanity by a preponderance of the eviilence.' § 30. Massachusetts. — Here the presumption of sanity exists until overcom*? by a preponderance of the whole evidence.* In C'uiHnwnioeuUh\'.Eddii,'''tr'u:d in .Massachusetts in ISjft, Winslow Eddy was indicted for the murder of his wife, riie trial took place before Justices Mktcai.f, IJi(ii;i-ow, and MintuicK. After the prisoner had put in all his evidence, including testimony as to his insanity at the time of committing the act, the attorney-general offered evidence tending to j)rove his sairty, to which the defence objected, but the court ruleil that this was ilie proper stage at which to offer this evidence, as the presumption of law that every person is sane stood until rebutted. Mktc.vi.k, J., then instructed the jury as follows: "The burden is on the Commonwealth to prove all that is necessary to constitute the crime of murder. And as that crime can be committed only by a reasonable being — a person of sane mind — the burden is on the Common- wealth to prove that the defendant was of .sane mind when he committed the act of killing. But it is a presumption of law that all men are of sane mind; and that presumption sustains the burden of proof, unless it is rebutted or overcome by .satisfactory evidence to the contrary. In order to overcome the presuinp- lion of law and sliield the defendant from legal responsibility, the burden is on him to prove to tiie .satisfaction of the jury, by a prepony 11 fair preponderance ot evidence. " The expression, fair preponderance of evidence," .said tlio court, " is uiiol)joctional)le. It means no more tlian ' .at tho evidenco spoken of nuist fairly preponder.ite, that i< it must preponderate so that the preponderance can be perceived upon fair consideration of the evi- dence." § 41. Missouri. — In Missouri it is now settled that to entitle a person to an ac(|uittal on tho ground of insanity, sucli insanity must be proved to the reas- onable satisfaction of the jury.' §42. North Carolina. — In North v.arolina tho jury niu.st bo " .satisfied " of the prisoner's insanity,* and as insanity must be estal)lished to their satLsfaction, it is error of which llio prisoner cannot complain, to cliarjie the jury that the hurdi-n is upon the prisoner to prove iusanity i)y a preponderance of tho evl- dence.» § i'^. Ohio. — Tho siiine rule prevails in Oliio.'"' In Bond v. State it was said: " The coun.sel for the defendant re(|nested the court to instruct the jury that if they cutertained a reasonable doubt as to the .sanity of the defendant they should acquit. This instruction the court refused to give, and, ou the contrary, in- structed tho jury that in order to an accpiittal ou tliat ground it was incumbent on tho defendant to prove the fact of insanity by a preponderance of evidence. In this, wo think, the court was right and the ci)unsel wrong." ' In Beryin \ . Stale,'^ the Supreme Court say : " The court ])elow charged the jury as follows: • To defeat the legal presumption of .sanity wliieli mei'ts tho defence of In.sanlty at tho threshold, the burden of establishing mental alienation of the accu.sed af- firmatively rests ui)on the accused.' The counsel for the motion admits that this Is held to be the l;iw in Ohio, but ably argues that It is n >t good law. If the ' Ronfnnti f. State, 2 Minn. 133 (185S); Suter. Gut, 13 Minn. ;U1 (1808.) ^2!) Minn. 221 (1SS2.) I State V. Krb, 74 Mo. IW (1S81) ; State v. Kedoineier, 71 Mo. 173 (1879) ; .state t'. Itaber, 74 Mo. 21)2 (1881) ; .state r. McCoy, 34 Mo. .^il (1801). IJut see State r. lluling, 21 Mo. 4t>4 (1.S.55), where it was said: "The defendant's counsel contend that the court should have told the Jury that if they had a reasonable doubt of the insanity being made out l^y tlie |iroof in tho ca.so they ouglit to Had for tlie prisoner. This ia carrying the doctrine loo far. In«anity may be maile out by cir- cumstantial proof; it docs not re»'oof ? ' According to Chief Justice lIouNni.ovvKit, in Spencer's Case, il is jiroof tliat leaves no reasonable doulit of in.sanity; in otlier words, insanity (•;iii lie said to be clearly proved only when it Is proved beyond a reasonable doubt. When, said the Chief Justice, tlic question is, did tlie accused commit the homicide, the law presumes him innocent until its commission byliim is sliuwn beyond a rea.sonable doubt; but wlien the doul)t as to tile nieauiii<; of the learned judj^e who presiiled at tlie trial. It must, therefore, have impressed the minds of the jurors. WitiioutspecifyinjTeacli in- stance, it may l)e summed up in a sin;;le statement, tliat the jud;L;e instructed the jury tliat they must be satistlcd beyond a reasonable doubt that the prisoner was insane at tlio time the act was cominitte'2l Uule in Vir-ilnitt tind West Vir;iinia. «.hall Ih" l)eyond a rcasonaltlo doubt, and if tlie l)cam waver, it is to l)e found airainst his defj'uce, wo discover tliat it implit-s a hiitlicr decree of proof to cs- taltlisli tlie defence of iiisaidty tlian tlio law warrants. It must be not only sat- isfactory, but 1)0 satisfactory l)eyond a reasonable doul)t. Tlie beam must not waver when preponderatln}; to tlie defendant's .scale, but it must f the insanity of the prisoner was reciuired. Tlie distinction may appear nice; vet we must not overlool< the effect of iaii'ruaire upon eomiiion minds, when the ■.take is life. Justice cannot suffer it to l)e imperiled l)eyoiid a just measure of litlief in those who are the triers, ('oiiimon Minds do not analyze accurately the (ie-rrecs of belief or tlie nature of tlie (loul)ts wiiich affect it. We think, tliere- [ore, there was error in statinij; tlie dc'^rce of lielief in reirard to the defence of insanity too stronirly." In Pannell v. Commmtn-filth,^ tlu; court was asked to I liarue that "if the jury l)elieve that at the time tlie homicide was committed ilie defendant was insane, he must lie acquitted." llie court fiave this, l)ut added " that the jury must be satislied by satisfactory and c(»iclutiirii proof of ilie insanity of tlie defendant." On appeal this was held erroneous. "That tiie proof of insanity must be .satisfactory and not merely doubtful, to justify an ;u(|uittal," said tlie Supreme Court, " is undoubtedly correct ; but we do not know any ca.se in whidi it has been held that it must be coiwliisive. To require it to be absolutely conclusive is askin2 TIIH BURDEN OF PROOr OF INSANITY. NotCH. §47. English Rule. — In Kii^land the Ixirdt'ii of proof of Insanity Is on the prisontr.' In V.'m/. v. Ldiilmi,- tju' prisoner was indicted for tiu- murder of h\> wife. Tile defence was Insanity. It appeared from the evidence on tlie part of liie proNceulion, tliat on the 7lli of May, tlie prisoner and his wife were walliini; aloni; tlie road between Leaminuton and lianlierry, and according to tlie dyiiiL; ci:an to talk about his family affairs. To anotlur witness who came up soon after, ami wlio calhr debt, having previously kept in the house- for ye.irs to avoid his cred- itors; he had been unfortunate in building si)ecnlations. These were the mate- rial facts of the ciise, proved on the part of the part of the prosecution, tending to throw any light on the state of the prisoner's mind. Roi.rK, R., in summing up the case, said as there was no doubt that the prisoner had killed his wife, and the only question Wiis wl'. ther, when doing so, lie was a responsible agent, ho should confine his ob-orvations to this question. The duty which now was in- cumbent on the jury was the most difllcult that could devolve on a jury or judge. Insanity was the most difllcult (piestlon which could enuiiire the attention of any tribunal. It was difllcult to deflue It in words, or even in idea. The oplnlou of » Reg. V. Turton, C Cox, SS) (186-t). * 4 Cox, 149 (1849). nURDKN 0\ TIIK ACCUSED. r)->3 Tilt' Uiilu ill KimlaiKl. ity is "11 till' iinliT of lli^ tlic part of iiTc Willlxlli:; to tlif (iyiiii,' ir, wiio hati llic prisoiur •r down ail I lit'diic Into a .lio liad seen I 111' liad met, i(i done Willi hat will put ds I)('i;aii to )ii after, ami I, "There is replied: ♦' If •h." At the iiTsons were The woman lew ■with his ill never see ; •' I wonder pp. Do yo;; jrets well, I lorninu;, ami iiidly. The ; on the day wards seen d)ling one tied. Tlie nry to fiei nds as tf) a threats of !Uld. The riy part of (1 hi.s ered- the mate- rni, tendim; n snmmini,' s wife, and e a|H)nsible in every case wliere he had a ^rliiiinicriui: knowledire of what w.as ri^tlit and wronn. In cases of this di'scription, tlnre was one cardinal rule which shonld never be departed from, viz.: tint the burden of provimr iniioeeiice nsteil on tlio party accused. Kvcry iinin committing an outniire on tin; person or property of another must l)e, in the first instance, taken to be a responsilile be- iuil. Sneli a presumption was necessary for the seeurily of inaiikind. A man iroini; alxnit the world inariyin;;, dealiiii:, aetinii as if he w.as sane, must be presumed to be sam; till he proves the contrary. The <|nesiion therefore for the jury would be, not whetlier the prisoner w;is of sound mind, but whether he iiad made out to their satisf.iction that In; wsis not of souml mind. On tin; other hand, liowever, they mi;iiit arrive at the conclusion, from the nature of his con- duct and acts up to the time of tlie act in i|iiestion, or siiortly precediim it, lli:it ho was insane, though he was not capable of provinii it by positive testimony, as such was tlie nature of the mind, th:it it mi;:lit be one minute s.ine and the next insane, and therefore it mi^rlit be impossilde for a party to ^'ive positive evidence of its condition at tlie particular inoinent in (|uestioii. lie would now, with a view to enable tliem to form an opinion on this snl)ject, direct their attention to tliu evidence as to the slate of tlie prisoner's mind. After fjoim^ throni?h the evidence, his lordship said he confessed tlmt, to hl.s mind, the evidcMice carried a conviction almost irresistilile tliat the man was Idiorin*? under some mental delusions. So iiiany people could not be all so de- ceived as to arrive at that conclusion witliont some jrood uronuds for it. There were two attorneys at Hanbury, the suiieriiiteiident of the Leaininyrton police, Pearson, tlie liair-dresser, the prisoner's brother and sister and iiepliew, and a comparative stran,^;er, from London, all a^reeint? that his manner and conduct left an impression that he was not in Ids rijjjht mind. A question asked by tlie counsel for the prosecution of tlie witnesses for tlie prisoner, namely, whether lliey thought liiin capable of judging between right and wrong, seemed to him to lie very irrelevant, for that was what no witness thouixht of or was prejjared to answer. All that witnesses thought of was whether or not a person w.as in his senses, and the other was a mere technical niotle of expression adopted by the judges. It was probable tliat the prisoner was feigning madness, but all the cir- cumstances showed that it was very iinprobal)le. The conclusion, then, seemed Irresistible that he was to some extent laboring under a delusiou, but he quite 1 MoNaghten'8 Case, 10 01. & F. 200. 524 THE HUKUEN OF I'KOOF OF INSANITY. NutC'8, concurred with tlic (•(niuscl for tlic prost'cntU)ii lliat he was not fxcinpt from ro- s|)( iisiliility, li('<'aiisc Ih> was lal)()rii>^' iiidUt a (Uliisloii as toliis property, iiiiluBs tliat liail tilt; effect of inakiii:; lilni iiicapalile of iiii(lerstan(llii<{ the wickedness of inurderlnu Ills wife, lint when that was t!ie «|U( stlon they liad to consider, lie could not .say that it was allo^etlier liiiiiiaterlal that he was insane on one point only. Indeed, his Insanity on that point iiii;;lit guide tlieiii to ii conclur'oii as to his Hanity on the point involved In this case, and In this view of the matter tliere were two circumstances detailed in the evidence of great Importance. These were tlie want of the motive for tlie connnission of the crime, and its l)eing com- mitted under circumstances which rendered detection almost inevitahle. His lordship, after going through the parts of Ids evidence which .supported tliese positions, coiicliiiled by telling the jury tliat they could come to no otlur conclu- sion than that the i»rlsoner liad taken away tlie life of his wife, and that tlii.s was murder, unless he satisfied tlieiii that he wa.s not capable at the time of upprcci- elating his acts. Verdict, not [luilty, f»i '/"' (jrnvnd of insanity. In Tlcg.w Stokes,^ the prisoner, a soldier, was Indicted for the murder of Mary Ann (ii'.rrard. He was tried lieiore Mr. Daron Rolkk at tlie York S|)rlng Assizes of IStS. The fact of the murder was not disputed. On the jinvloiis l.'()tli of Jan- uary the |)risoiier, in tlie Leeds b.irracks, took up his musket as if to clean '■ with a rag, leveled It at the decea.sed, tired and killed her on the spot, her hus- haiid and child being in the room and two other soldiers being present. It ap- peared In ev'deiiee that the prisoner was a man of singular habits; that he seldom spoke to the other .soldiers; was very " secluded, sulky and sullen," and wa> described as "a close-minded man," and a "man of very nasty temper." He had fretiueiitly complained of illness, and had made efforts to get Into flic lios- |)ital, but he was rejected as a man having no visible disorder or sickness. It also appeared that some months jircviously a bayonet had been wrenched from him in tlie nlglit-time by his fellow-soldiers, as they supposed he wa.s about to destroy himself. On being arrested the prisoner made no resistance, but held out his hands and gave himself up to the .sergeant, who told him he was a priso- ner. He declared that he had loaded his musket designedly, .saying that he h.id no chance of shooting her before; that he was glad she was dead, as he could now die in peace, as lie had had no rest for nights. It was proved, too, that for some nights before the murder, while under the excitement of liquor, the pri.s- oner was raging in the guard-room, and while handcuffed had attempted to burn himself, and afterwards to kill himself by striking hisliead with a poker. There ha Lib. Med. (ed. Dr. Tweedie),9 Prac. Med. 118. lUTUDEN OF ritOOF ON IMtOSECUTlON. 525 Th« Third and Lust Tlieory. npt from ro- "Tt.v, unless ckrdiu'ss of COIlsldtT, ln' m one point lu> 'on ns to n.'itter tlicrc nee. Tlusc iH'lnj; coni- ital)k«. Ili.s )orted tlit'so Iiir conclu- lat this was of apprccl- insanity. ilcr of JIary ; Assizes of )th of Jan- ti) elean i' t, her hus- nt. It ail- he sekloiM ," and was ipor." II,. to Ihc hos- ■kncss. It iched from IS about to ', but held IS a priso- lat he had s he could o, that for , the pris- ed to burn T. Tliero d and the I'oman, lie ejoiced In lan of the n there; " rlouf^h or th on the ity. The 'he will Is id. 118. occasionally under the Intluence of a disordered inipidk^e, which sndileidy drives the persons affected to tlie perpetration of acts of the most rrvoltlni; character, and to tlie ctMnniJNHion of wliicii lie lias no motive." Also tlmse of M. l%M|uiro| on the same sulijecl, wlio remarks tiial " numerous and will aullientieatetl cases have demonstrated the fact, tluit while some nuiduien conmdlhondcide under the iiillnence of delirium or llluslims, wldle olliers perpetrate similar acts willi pre- niedilation auti desl;:n, inlluenced Ity an Intense feeliui! of mal« volenec wliieh may be part of the pneral perversion of their moral feelin;;s, Hk re is n tlilrd class, wlio are under neitlier illU' Ions, nor moral jierversinn, if we in(|uire into tlie •general state of their affections and moral fei ;im;>, and wlio are driven to commit homicide by a sudden and merely blind and instinctive impulse, witlioiit ct)nscionsness of the nature of the act." T.ivlor's Med. .Iiirlsprudence, tit. Hom- icidal Monoinaniii was also cited; and Mu opinions in llie several works were assented to as «|uestions of sci«nce by the njciiical witnesses. Itoi.ii,, H. (in sunnnin<; up) — If tin- prisoner seeks !<) excuse hlm.self upon the jilea of Insan- fly, it is for him to make it clear tlia' lie w.is insiiiK at tlie time of comiinl'l.isj tlie offence cliar^ied. Tlie diikh n sts on liiiii am" the jury must be satistled tliat lie actually was in.sam. If tlie matter b( l< !i in doiilit, it wi'l be their duty to convict him; for every man must lie presnimil to lie respousiiile for liis acts till tlie contrary is clearly sliown. A case occurred some time aiio, at l lie Central Criminal Court, before Ai.dkuson, IJ., and tin- jury hesitated as to their xerdict, on the ^iroiiud that tliey were not satislied wlietlier tiie prisom r was or was not of sound mind wlien lie committed tlie crime, and that learmd jiid^c tld them that unless tliey were satislied of liis insanity it would lie tl'cir duty to lind a verdict of f^'d'^y. Kvery man is luld resi»onsil)le for his acts by the law of this country, If he can dis<'erii ri^xlit from wroiii;. Tlii> . ubjeet wa>, a few yearsajjo, carefully considered by ali the judiies, and the law is clear upon tlie subject. It is true that learned speculators, in tlieir writiniis, liave laid it down that men, with a consciousness tliat they were doiii:; wronii, were irresistibly iiiipelled to comnnt Home unlawful act. But wlio eual)led them to ilive into the human heart an»l see the real motive that promi)ted the commission of such deeds? It has been iirsed that no motive has beiii shown for the commission of tills crime. It is true that there is no motive ajiparcnt but a very iiiadetpiate one; but it is danj^erous j;round to take to say that a man must be insane be- cause men fail to discern the motive for his act. It has also bei;n .said by tin- prisoner's counsel that the conduct of the prisoner was that of a madman In eonimiitiii;;the act at such a lime, in tlie jireseiice of the woman's luistjand, wlio had arms within his reach; but It would be a mo.st daiificrons doctrine to lay down, that becau.se u man committed a desperate offeiiee, \\\\h the clianee of instant death, or the certainty of future punishment before him, he was therefore Insane — as if the perpetration of crimes were to be excused by their very atroc- ity. The jury found the prisoner guilty, and sentence of death was passed upon him. § 48. Burden of proof on Prosecution — Third Theory. — The third theory is that the Imrden of proof rests on the State to prove the .sanity of tlie pri.soner. The presumption of suuity will be iutlulged iu the absence of cvideuce to the 523 THE BURDEN OF PROOF OF INSANITY. Notes. contrary. If the defendant introduces no evidence which tends to prove insanity, the presumption stands. But if lie gives evidence tending to overtlirow tlie presumption of his sanity, casting loul)t and un(;ertainty upon it, it is tlie duty of the Stat;- by adlrmative evidence to prove his sanity beyond a doubt. This theory is maintained in tlie following States: § 40. Illinois. — In Fisher v. People,^ it was said: "The jury in all cases where such a defence is interposed sliould be distinctly told that every man is presumed to be sane until tlie contrary is sliown — that is his normal condition Before sucli a plea can be allowed to prevail, satisfactory evidence should be offered tiiat the accused, in the language of the criminal code, was affected with insanity, and at the time he committed tlie act, was incapable of upprc- ciating its enormity. Tliis rule is founded in long experience, and is essential to tlie safety of the citizen. Sanity being tlie normal condition, it mu.st be shown l)y sudlcient proof that from some cause it has ceased to be the condition of the accused." But in IIopps v. PcapJe,'' tills case was overruled, and it was laid down that the burden was on the State, and that if the jury entertained a reasonable doubt of the prisoner's insanity they should acquit. Three years later, the judge who delivered the opinion in Hupps v. People, thought it neces- sary to explain that case. "What we designed to say in tiiat case," said he, " was simply tliis, that .sanity is an ingredient in crime as essential as tlie overt act, and if sanity is wanting tliere can l)e no crime, and if tlie jury entertain a reasonalile doubt on the question of iiLsanity, the prisoner is entitled to the benefit of the doubt. We wish to be understood as saying as in tiiat case that the burden of proof is on the prosecution to prove guilt beyond a reasonal>le doubt, wliatever tlie defence may be. If in-sanity is relied on, and evidence given tending to establish that unfortunate condition of mind, and a reasonable, well founded cloul)t is tliereby raised of the sanity of the accused, every prin- ciple of justice and humanity demand that the accused shall have the benefit of the doul)t. We do not desire to be understood as holding tlie i)rosecutiou to the proof of .sanity :a any case, bnt we do hold, where evidence cf insanity has been introduced by the accused, and a reasonable doubt of his sanity is thereby createil, the accused cannot be convicted of the crime charged. We deemed it necessary to say this much in explanation of the ruling in tlie case of IIopps, as some expressions used therein may have a tendency to mislead."* § 50. Indiana. — "If, upon the whole evidence in the cause, the jury have a reasonable doubt wlietlier tlie accused upon trial was sane when he com- mitted the homicide or act charged against him, they must have a reasonable doubt whether he purjjosely and maliciously eonimitted the act; and hence, a reasonable doubt whether he eonimitted the crime detlned by statute."* An instruction to the jury tliat "the jury are to presume the defendant innocent until his guilt is established by the evidence beyond a reasonable doubt," is not ' 23111.283 (I860), 2 31111.385(1865). Chase v. People, 40 III, 362 (1866), * Polk V. State, 19 Ind. 170 (1862) ; Stevens V. State, 31 Ind. 483 (1869) ; Uuetig v. .Stute, 66 Ind. 94 (1879) ; eec post, p. 87S. BUKOKV OF rUOOF 0\ STATE. 527 Kansas, Michigan, Mississippi, Ncbraslta and New Ilampshiro. Inconsistent with an instniotion tliat " cvi-ry man is presumed to be sane and to intend the natural and ordinary consequences of liis acts.'" §51. Kansas. — The same rule has been adopted in Kansas.* In State v ifaAn,* the i)risoner aslied tlie court to instruct the jury that, "in order to entitle the defendant to an acquittal, he is required only (o ratse a reasonable doubt as to his sanity," and tiie court niodilled tlu- instruction and gave it in these words: " In order to entitle tlie defendant to an ac(|uittal, he is required only by evidence to estahlish a reasonable doubt as to his sanity." In the Supremt; Court this was held to be correct. § 52. Michieran. — And tlic same rule prevails in Michigan.* §53. Mississippi. — Sanity is presumed in the absence of testimony relating thereto, but whenever the (piestion is put in issue by evidence such as engenders 11 reasonable doubt, it devolves on the prosecution to remove it and establish the sanity of tlie prisoner to tiie satisfaction of the jury, beyond all reasouable doubt arising out of all the evidence in the case.^ §54. Nebraska. — Where evidence of insanity is produced by the prisoner, unless the jury are satisfied tluit the act complained of was not the product of mental disease, they must acciuit.* § 55. New Hampshire. — The same rule was adopted in this State in ISfil.' In State v. PiA.e," the judge instructed tlie jury that sanity was presumed, but that when any evidence was introduced tending to show insanity the State must satisfy the jury beyond a reasonable doubt that the prisoner u sane. The majority of the Supreme Court approved this rule. But Mr. Justice Doe was not satisfied with this liberal rule ; he thought there should be no legal presump- tion of sanity at all. «< Malice," said he, " was alleged in the indictment, and lliat allegation, as well as every other material averment of the indictment, was traversed by the general issue. Ou the question of malice, the State had the afllrmative and the burden of proof; and the State was required to prove the alle- {ration of malice as well as every other material averment, beyond all reasonal)le doubt. Sanity being an essential element of nuilice, must be proved by the State beyond all reasonable doubt. This rule is not peculiar to cases in which malice is formally alleged. Sanity is an indispensable ingredient of all crim?. If the crime is denied, sanity is denied, and the party alleging it must prove it.' It was held in that case, that the presumptions of sanity and of malice are presumptions of fact that do not change the burden of proof, but merely authorize the jury to ' Greenley v. State, 00 Ind. 141 (1877). 2 State V. Crawford, 11 Kns. 32; State v. Roddick, 7 Kas. 144 (1871)-. 3 25 Kas. 1S2 (1881). < People r. Garbiitf, 17 Mi"''. 9 (1868). What is a "reusoniibie doubi, ' was well ilcilncd ill People v. Finley, 38 Mich. 48a (W78). 6 Cunningham v. State, 56 Miss. 26!) (1879) ; Ncwconib V. State, ;i7 Miss. 38,3 (1859) ; Rus- sell r. State, 53 Miss. 307 (1^76). 6 Wriglit t'. People, 4 Neb. 409 (1876) ; Ilawe V. People, U Neb. .537. ' State V. P.uitlett, 43 N. U. 224 ; State v. Jones, SOX. 11. aii'.t. « 49\,It. 31t!) (1870). « State f. Burllett, 43 N. 11. 224. 528 THE BURDEN OF PROOF OF INSANITY. Notes. find sanity and malice without any direct testimony of witnesses upon tlieso points. Tile instruction jjiven in tliis case is a departure from State v. Bartldt; for Avlien tlie jury were told tliat every person of mature ajie is presumed to lie .sanetliey would naturally understand that thev received a lejial presumption from the court, and not that the presumption was one of the facts for them to pass upon. The presumption was laid down witli this important qualillcation, tliat it existed only so lonjij as there was no evidence of insanity, and vanished at tliu moment the sliijhtest particle of evidence appeared tending to sliow insanity. Such a legal presumption would i)e irregular, exceptional and anomalous. If there was a legal i)resumption of sanity, it operated throughout the trial, to keep the l)Hr(len of proving insanity on the defendant, or to support the burden which belonged to the State. If it did not establish sanity beyond reasonabK' doubt, it was immaterial. If it did establish sanity beyond reasonable doul)t, it shifted tlie burden of proof contrary to tlie doctrine of State v. BarthHt, Shifting the burden of proof upon the defendant, and allowing him to throw it baclc upon the State by a scintilla of testimony, would naturally be followed by allowing the State to throw it back again upon the defendant Ijy another scintilla, and so on througli an interminable subdivision of the evldenci:. There is no legal guilt in a homicide solely caused l)y a mental disease. Men- tal capacity to commit an offence, includes sanity. And if there is a legal prestimption of innocence, as the books say, how is it overpowered in the absence of all evidence, by a legal presumption of sanity? When the two presuni|)- tions come in contlict without a.ssistance, how does the law ascertain which prevails? ' If it is necessary to almlish one of the presumptions to avoid their conflict, the presumption of innoee>..ce can well be spared, for it is entirely useless. The State, alleging guilt, must prove it. The burden of proof is attached to the allirmative. The accused does not need a presumption of inno- cence, and it is of no advantage to him. There is no legal presumption of guilt, and the defendant is as well protected l)y the rule which puts the burden of proof on the party alleging an allirmative, as he would be by a |)resumption of inno- cence. Greenleaf, indeed, says that the legal presumption of innocence is to i)e regarded by the jury as a matter of evidence.' But this is an incorrect view. A legal presumption is not evidence; it establishes a point where there is no testimony and no inference of fact from the al)sence of testimony, and also when all the testimony is so l)alanced that the point is not ilecided i)y the testimony. Tutting upon the State the burden of proving guilt, and giving to the defendant a presumption of innocence as evidence tending to disprove the guilt which the State must prove, would be like doubling the weight of any testimony tlie defendant nught introduce, and weighing at once against the State and again in favor of the defendant. The burden of proof afllxed to the afflrmative, generally renders a legal presumption of law unnecessary; but it seems sometimes to be supposed that there is a necessity for such a presumption for or against every fact alleged and denied in pleading; and more so-called legal presumptions have been constructed than can be conveniently used. There arc certain natural or usual causes, effects, conditions and customs, ' Green borough v. Gr. OH Kv., sect. ;<,i. Underhill, 12 Vt.(>04; 1 = 1 Gr. on Ev., sect. 34. Mil. JUSTICE DOE S VIEWS. 529 No rrt'i-umption of Sanity. i upon thoso !e V. Bartlrti; L'suini'd to Ik' imptioti from tlit-m to pa.ss ;atiou, that it iiished at tliu low insanity. oniaious. If tlie trial, to 't tlic burrleu A reasonai)lr maiile dotiht, e V. Bartli'tt, lim to tlirow r l)e foilowid t by another lie evldeuce. ■lease. Mcu- *e is a legal II the absence ivo presunip- ertain vliich > avoid their t is entireh of proof is ion of inno- on of guilt, en of proof ion of iiiiio- enceis to l)e orrect view. re there is imony, and decided l)y and giving to ilisprove ight of any against the flixcd to the ary; but it resumption re so-callud ently used. d customs, generally within the reach of the experience or the observation of men, which a jury are justified in lliuling l»y an inference or presumption of fact, when tlicre is no testimony sliowing an exceptional instance in the case on trial.' Whei it is proved tliat one man has l\illed anotlur with a deadly weapon, under aome circumstances tlierc may l)e, as a matter of fact, a fair inference of malice and intent to kill; but in England, and generally in this country, such inferences have been improperly changed into legal presumptions and used to change the burden of proof throughout the trial. '^ It is not necess-^^y In this climate to offer testimony to show that the ground was frozen the last January, or that It was not frozen the last August. Seedling fruit tri'cs do not generally bear fruit of the best (luality; and without any testimony of witnesses as to the product of a particular seedling, a jury would be authorized to presume the fact. lu such ca.ses the absence of testimony tending to show an exception, may be sat- isfactory evidence tending to show the operation of the known general rule. The inference drawn by the jury from the absence of particular testimony is a presumption of fact. But many such presumptions liave l)een uuneces.sarily pro- mulgated by the court, and improperly called j)resiuui)tions of law, — the court having a great advantage of position iu encroaching upon the province of the jury. The presumption of sanity is not an artillcial or legal jjresumption, but a natural inference of fact to l)e made by a jury from the al)sence of evidence to show that a party did not enjoy that soundness wiiich experience proves to be the general condition of the human mind.^ The State has no more need of a legal presumption of sanity than the defendant has of a presumption of inno- ceuce." § 50. New York. — In O^Brien v. People,* the court refused to charge the jury tliat "where in.sauity is interposed as a defence, the afllrmative of the ,ar,\ie is with the People, and they must estal)lish the sanity of tlie i)risoner at the time of tile commission of the alleged crime by a preponderance of the evidence." In BviAherton v. People,^ the Court of Appeals said : "Crime can l)e committed only by human beings who are in a condition to be responsible for tiieir acts; and upon this general proposition the prosecutor holds the allirmative, and the liurden of proof is upon him. Sanity being the normal and usual condition of mankind, the law presumes that every individual is in that state. Hence, a jirosecutor may rest upon tliat presumption without other proof. The fact is deemed lo be \n'0\{n\ pr una facie . Whoever denies tliis, or Miter[)Oses a defence based upon its untruth, must jtrove it; the bun'-u, not of tlie general issue of crime by a competent per.sou, but, the burden of overthrowing the |)resumption of sanity, and showing in.sauity, is upon the person who alleges it; ami if evi- dence is given tending to establish in.sauity, then the general (luestion is pre- sented to the court and jury whether the crime, if committed, was committed by a person responsible for his acts, and upon this (|Uestion tlie presumiition of sanity aud the evidence are all to be considered ; and the prosecutor holds the ' U. V. Burdett, 4 B. & Aid. 121; K. r. nosscr, 7 C. & P. 648; Ottawa v. Graham, 28 111. 73. Ante, p. 431. 34 3 Sutton r, Sadler, 3 C. B. (N. s.) 87, 96. ♦ 48Bnrb. 274 (lS(i7). 6 75 N. Y. 15!) (1878). 630 THE BURDEN OF PKOOF OF INSANITY. Notes. affirmative, and if a rcusonai)le doubt exists as to wliether the prisoner Is sane oi not, lio is entitled to tlic benefit of the doubt and to an aquittal. Tlie question may be stated in a variety of language. Tliere Is no rigid rule prescribing the particular terms to bo employed, if the substance of the rule Is preserved. The judge in this case, among many others not criticised, u.sed this exprcs- siou: 'The alleiiation of insanity is an adirmative issue vhlch the defendant is bound to prove, and you must be satisfied from the testimony introduced by him that be was insane.' And he also charged that, ' if there is a \vell founded doubt whether this man was insane at tiie time he fired the pistol, you will ac(|uit liim.' Talf the act a.) 121. The legal presumjUion is in favor of sanity, and that the party in- tended to do what was the natural conscfiuence of his act, and if lie made no denial of the killing, but assumed that he was excusable, he thereby took the burden of proof; and if he failed to produce evi- dence sufHcient to change the presumption raised against him by (he proof of the killing, I'le penalty of the law would be legally ad- judged against him, and tlio jury is the only proper tribunal to deter- inin»' the weight of the oviaenee, and this verdict was not a finding without evidence. It was by the physicians and some others testifii'd that the accused was imbecile — a man of weak mind, and liable t(i be much affected from excessive use of strong drink ; but while this may havelieeii proba- ble, even if it had been most likely-, it is by no means conclusively shown that such result, as an excusable insanity. avouM follow from the free use of intoxicating licpiors ; and in that conflict of evidence the jury alone could determine. If it had been shown that drunkenness would nccessaril}' produce in- sanity in the accused, the proof is by no means conclusive that at the time of the killing he had been laboring under the inlluence of ardent spirits long enough or to an extent suiricicnt to produce that insanity. One witness spoke of Jiis drinking some the day before the killing. An- other supposed he was «lrinking in the morning before the killing in the afternoon ; but one who had been with him for two weeks, except the previous day, said he was sober for that whole time. Different other witnesses testified that he was sober in the forenoon of that day and when he came to town. Brooks testified that he, at the time of the kill- ing, was drunk, or as he termed it, " pretty tight; " that he had seen him about the brewery J(e«r?>/ all da;/, and had seen him drink. This statement is not well sustained by other witnesses. It was shown by a immlier of them that he did not come to town until afternoon, and that the killing was about three o'clock, and this made it quite clear that he was not there, nearly all day, and that Brooks did not fairly state the facts. Except a glass of beer no one else testified that he had been drinking after coming to town. To place no stress upon the evidence tending to show he was sane, and if not at the time, up to near the time of killing, and we do not see how the jury on either point, — being drunk, or being insane, if drunk, — could well have found in the accused's favor; and would it not endanger the rights of society beyond what the law will allow, to hold that any one who voluntarily beclouds his mind with intoxi- 538 I)Ui;nkknm:.sh. Cliolce V. iSttttc. cuting drinks may thereby he excused in talking the lifi> of an innocent, man ? ' The testimony shows a most wanton and unnecessary killing of a fel- low-man, and while hi.s attempt to prove Ids own insanity at the time of the killing was such as may have afforded him a hope of acquittal, yet it was strongly rehutted, so nuich so as to remove any doubt thatmlglit have been raised as to his criminal intent and responsibility, and the jury having so decitled, the judgment and the sentence of the court be- low must be, and the same is in uU things, atHrmed. Affirmed. DRUNKENNESS — VOLUNTARY DRUNKENNESS NO EXCUSE — TARTICU- LAR RKMIT AND WRONC} TEST — OINOMANIA — MORAL INSANITY — EVIDENCE — STATEMENTS OF PRISONER — REPUTATION — ORDER OF PROOF — EXPERTS — OPINIONS. Choice v. State. [31 Gtt. 424.] In the Supreme Court of Georgia, August Term, 1860. Hon. JosKPU 11. Lc.MPKiN, Chii'f Justice. " n""A.M.F.LvON, |j„^^,, " ChaklksJ.Jkxkins, * 1. Insanity— Evidence— statements of Prisoner. — Where the defence to an indict- ment for murder is insanity, evidence of (v subsequent conversation with llie prisoner and of the tests made at that time, are not admissiblo to show liis insanity. 2. Order of Proof— Evidence of Malice in Rebuttal. —Where the prosecution has proved a homicide, and tlie prisoner introduces evidence tending to show liis insanity, the prosecution may, in rebuttal, offer evidence of express malice. 3. Evidence of Non-Experts. — The opinions of persons not experts as to the sanity of the prisoner are admissible, if accompanied by the facts upon wliich they arc founded. 4. The Opinions of Witnesses, that the prisoner appeared to bo drinking are admis- sible. 6. The Opinions of Physicians as to the sanity of the prisoner on facts hypothetically stated are admissible. 6. Evidence of Insanity by Reputation. — The insanity of the prisoner cannot be shown by evidence of reputation. 7. Intoxication— No Defence When Voluntary.— If ft niftn's mind, unexclted by liquor, is capable of distinguishing between right and wrong, and he voluntarily de- prives himself of reason by intoxication, such intoxication is no excuse for a crime committed in that condition. 1 See Bishop on Criminal Law, Vol, 1, sects. 434 and 499, and note 1. CHOICE V. 8TATI:. /i.lS) nil iiinoccnl « « If? of ft fcl- tlic timo of luittftl, yet . that might y, and tlic 3 court be- Ifflrmed. TARTICU- ^SANITY — < — ORDER SylliibU!*. 0. to an indict- lie prisoner ecutlon hns liis insanity, sanity of the founded. arc ail mis - pothetically ot be shown lexcited by intarily de- for a crime rt. Same. — Kor doeA it mako any dltTrrnnce lliat 11 inuii, cither l)y a former Injury to tlio liead or brain, or n non.Htitiitional inllruiity, li« niorit apt to l)u inadiliMicii l)y iii|iior iliaii aiiotiiur man. If liu lia^ IukhI niiMimry lunl iliNcrullun wiit'ii ^cll)L'r, ajiil voliiiiiarlly dv|irivoH liini.'iulf ot rcaHiin. lie \» ruH[MinMl)lt; for \\\» aclH wliiitt in tintt I'onditinn. J. An Inordinate thirst for liauor.proiJurod I»ythfhal)ili>fdrln1»in(ir, i^ no exruse for the conNUi|Uun('UM of hiicIi indiiigcnrc. Tlio dinuaho caiiud oinomania quuHtionud. 10. Moral Inaanlty or irrct<|)oM8il)iliiy for crime from Inability to control the will from the Inibit of Indulguncu, lias no foundation in tliu law. 11. Test of Insanity — Particular Riffht and Wronu Test. — If a man has rapacity cnouKh to dlMtinguish between the right and wrong of his act, he 1m a subject for pun- Ishuieut. Indictment for muider in Fulton Superior Court. Tried before Judge Bi;i,i. at the October term, IK;')!), on an indictment found in the previous April term, chtirging William A. Choice with the murder of Calvin Welsh. The jury returned a verdict of guilty. 'J'he piisoner appealed. B. II. Hill, A. /?. Wright^ and Calhoun & Son, for the appellant. Thomas L. Cooper, Attorney-General, for the State. Lumpkin, C. J., delivered the opinion of the court: To avoid being tedious I was strongly inclined to pass all the minor points in this case. Tiiey were not dwelt upon by the able counsel in the argument. On account of the importance of the case, however, I concluded that every assignment of error had best be noticed. I shall dispatch them with as much brevity as possible. When the bill of exceptions was presented to Judge Bt:i.L for his signa- ture, he made in his own handwriting, several corrections of the facts us therein stated. To these additions counsel for the plaintiff in error object ; and it becomes necessary, therefore, to dispose of this prelim- inary point before proceeding further. After verdict, a rule nisi was moved for a new trial. The motion was ordered to be entered upon the minutes. Upon hearing tho :xpplication, it was refused. It is now in- sisted that the rule nixi, by being placed upon the minutes, became a locord, imparting absolute verity, and that it is not competent for the presiding judge to alter or modify the statement of the facts as set forth in the rule nisi, when he comes to certify subsequently to the bill of exceptions. Is tliis position tenable? The rule nisi was, upon the hearing, denied ; i)erhaps partly because the statements in it were not true and consistent with what transpired on the trial ; at any rate this is u sufficient reason for refusing such an application. The only effect of placing the motion upon the minutes was to show that such a motion had been made at that term of the court, and upon the grounds therein stated. That could not be controverted. But it did not concede that the facts therein stated were true. 540 DRUNKENNESS. Choice V. State. 1. It is complained that the court erred in refusing to allow the wit- ness, Dan'el S. Printup, to state in evidence tlie following facts : That a short time after the homicide was committed, he visited the prisoner, and for the purpose of testing his sanity, among other things, informed prisoner that it might be very important in his defence to know from whom he procured the pistol with which he shot deceased, for the two- fold purpose of proving by the person from whom he procured it, his condition of mind at the time ; and also to show that the pistol was not the property of the prisoner ; and it could not be ascertained from any other person from whom it was procured ; and that he said nothing to the prisoner but what showed that it would be to his interest to disclose the fact if he knew it ; when the prisoner replied, that he had no re- collection whatever of having a pistol, nor any person from whom he could or did procure it ; and had no recollection of shooting or even seeing the deceased. And also in refusing to allow said witness to state the means adopted by B. H. Hill to test the sanity of the prisoner at the time of committing t'>e act, before he was eniployed to defend pris- oner, and in refusing to allow the counsel to state before the court what facts he did propose to prove on this subject. To this first ground of alleged error in the bill of exceptions the judge api)ends this note : " The counsel only offered to prove a conver- sation with the prisoner, by himself, some three months after the homi- cide." Let us look at this ground for a moment, apart from the qualifying statement added by tlie judge; if the prisoner were sane at the interview between Col. Printup and himself, and he is deserving of the reputation which he has always sustained, of being a young man of more tlian ordinary talents, it would have occurred to a much duller in- tellect, in the twinkling of an eye, to have feigned entire ignorance and forgetfulness of the whole transaction, as much more available to his defence than any information he could communicate upon the points to which his attention was directed. What tests were aj^plied by Mr. Hill, ihe powerful and indefatigable champion of the accused, we are not informed. We know that Mr. Hill do'^'! r.ot profess to be an expert ; and if he did, we are not aware that the law recognizes any such mode as the one pursued in this case for testing the sanity of culprits. It is not tlie conduct or declarations of the party, at the time of the act, which are sought to be proven as a part of the res getitce, but matters transpiring subsequently. In the hands of honorable men — and tlie character of those concerned in this matter are above suspicion — a precedent like this might not be so mis- INSANITY TO HKBIT MALICE 541 Evidence in Rebuttal by State. chievous. It is a practice, however, so liable to abuse that we think it safer to discourage an innovation. We were glad that no point was made in the argument upon the refusal of the court to allow counsel to state before the court, and, of course, in the hearing of the jury, what facts he did i>ropose to prove as to the matter we liave been discussing. 2. The second assignment of error is in the court's refusing to allow prisoner to prove that, owing to the diseased condition of prisoner's mind, the family and friends about Rome had long refused to allow him to have deadly weapons. To which the court adds: " I have no recol- lection of any offer to prove any control, or attempt to control, the de- fendant in carrying weapons, or any refusal to permit him to carry them. The witness did testify that the family had endeavored to pre- vent prisoner from carrying a i>istol." As the presiding judge refuses to certify that the facts stated in the ground are true, it is needless to review it. It is a very immaterial matter at best. For what prudent family would not have dreaded to see deadly weapons in the hands or about the person of William A. Choice — one who, while in his cups, as all the proof demonstrates, was so dangerous to both friend and foe. 3. The third complaint is in allowing the State to prove, in rebuttal, by Luther J. Green, the difficulty between prisoner and deceased, the night before the homicide, us evidence of express malice, and in allow- ing the evidence of Thomas Gannon and Samuel Wallace to prove the same point. The State having proved the homicide closed, as the law would imply malice from the killing. To rebut this presumption, the plea of insanity was interposed, and a large amount of evidence ad- duced to support it. An insane person is not supposed to act from malice. Does lo not weaken the force and effect of the prisoner's defence io show express malice ? Who would not more readily believe that the prisoner was insane had he shot a friend or an indifferent per- s )n, as he frequently threatened to do, l)ut as usual, failed or forbore, instead of one against whom he manifestly harbored a spirit of revenge for V supposed insidt or injury? A drunken mi\n rarely if ever shoots or stabs another, unless he cherishes some resentment towards him. It is quite otherwise with the insane. A drunken man reasons from cor- rect data; whereas the insane draw right conclusions from false data. In this view of the testimony, it was strictly in rebuttal. But this question has been repeatedly decided by this court; that is, that the introduction of testimony, whether cumulative or in the rebuttal, orfor any other purpose, is entirely within the discretion of the circuit courts. We said in one case, that in no case could we consent to reverse the circuit judge for letting in testimony which was relevant, at any 542 DRUNKENNESS. Choice V. State. 8tage of the case.* In this last case the court say: " The State relied upon the facts first proven, as making out a clear case of malice, the malice ingreilient being implied, as it clearly was reasonably to be im- plied from all the circumstances of the killing. The prisoner then put in evidence facts which went to some extent in rebutting the presump- tion of malice. The State then asked leave to strengthen its case by proving express malice ; and it being granted, the prisoner excepted. I confess," says tlie learned judge who wrote out the opinion, "my inability to see upon what ground. Surely it is not necessary to discuss this point." 4. The next assignment is, that the court erred in allowing Luther J. Glenn and J. A. Hayden to give their opinions as to the sanity or insanity of the prisoner; and in allowing them to give their statements, that the prisoner was drinking, when such statements were made as conclusions, and not as facts. The judge subjoins a note to this excep- tion to this effect: " I heard no objection to this testimony at the time it was given. The opinions of witnesses, other than exi)erts, as to the question of the sanity or insanity of the defendant, was first introduced by defendant's counsel, and at their instance ; and after objection made by the State's counsel, was admitted by the court with the distinct avowal, that as the question was somewhat unsettled, if the defendant's counsel insisted on it, the evidence would be admitted, with the condi- tion, that the rule should work alike in favor of both sides ; and the defendant's counsel expressly accepted the condition." Perhaps it would be better to dismiss this point without a word of comment. Unless the memory of the judge is greatly at fault, this ground should never have been incorporated in this bill of exceptions. When parties stipu- late expressly with each other and with the court, that a certain course shall be pursued in the management of a cause, that agreement should be considered binding, more especially when the record shows, as it does most abundantly in this case, that the defendant has reaped the full benefit of the rule of evidence thus agreed to. Still that it may not be said that au}"^ injustice has happened or fallen to the accused for want of recollection in the presiding judge, I propose to examine this fourth ground to some extent. It has been the settled doctrine of this court, from its organization, that the opinions of witnesses, other than experts, are admissible as to matters of opinion, especially as it respects sanity or insanity, provided such opinions be accompanied by the facts ' Bryan t>. Walker, 20 Ga. 480; Lumpkiu i». Williatns, 19 Ga. 5(59; Walker v. Walker, 14 Ga. 242; Bird v. state, Id. 43. OPINIONS AS TO INSANITY. 543 Opinious of Non-Experts Admissible. State relied malice, the y to be iiii- er then put le presump- its case by r excepted, nion, "my y ^o discuss I Luther J, ! sanity or tatcinents, ■e made as this excep- at the time i, as to the introduced 3tion made le distinct efendant's the condi- ; and the Perhaps it t. Unless uld never ties stipu- lin course ;nt should «ws, as it ^d the full ay not be for want !iis fourtli his court, her than t respects the facts upon which they were founded. > Our books are full of precedents upon this point. As for mj'self I would rely as implicitly upon the opinions of practical men, who form their belief from tlieir observation of the appearance, conduct and conversation of a person, as I would upon the opinions of physicians who testify from facts proven by othei-s, or the opinions even of the keepers of insane hospitals. But the question in all such cases is, not which is the most reliable evidence, but the inquiry is shall the witnesses be restricted, in their testimony, to a simple statement of facts coming within their knowledge, leaving the jury to draw an inference of sanity or insanity, or may the judgment of the witnesses, founded on opportunities of personal observation, be also laid before the jury, to assist them in forming a correct conclusion ? One who has seen and conversed with an insane person, and observed his countenance and behavior has an impression made upon his mind whicli is incom- municable. This court is committed to the rule, that the jury, in such case is entitled to the benefit of this impression. It may be said that Col. Glenn's opportunity of observing and judging of the capacity of Choice was too limited. But it has been truly remarked that so differ- ent are the powers and habits of observation in different persons that no general rule can be laid down as to what shall be deemed a sufficient opportunity for observation other than, in fact, it has enabled the observer to form a belief or judgment thereon. Col, Glenn had known prisoner for several years, though not intimately ; had met with him in the last three days before his arrest by Webb; learned from him that he was p.bout going to New York, having engaged to travel for a house in that city ; always considered him sane, and a man of more than ordinary intelligence. Before dismissing finally this fourtli exception, upon which 1 am luLy conscious of having occupied too much time already, I would suggest liiat it does not fairly represent the testimony of Glenn and Hayden. Their testimony, when taken altogether, is wholly unexceptionable, (ilenn, for instance, says, "prisoner from his appearance had been drinking." And Hayden upon his cross-examination, swore that, "although he did not see Choice drinking, yet he judged, from his manner and appearance, that he had been drinking ; had seen him fre- liuently in that condition before. " By reading the testimony, it will be M'en that expressions similar to that excepted to abounds on every Walker, 14 1 Potts V. House, 6 Ga. 324 ; Walker v. Walker. U Ga. 242 ; Bryan v. Walker , 20 Ga. 480; (joodwyn v. Goodwyn, 20 Ga. 600. 544 DRUNKENNESS. Clioice V. State. page of it. Tlie witness Gregory says: "Saw prisoner a short time before lie left Rome for Atlanta; hail been drinking several days ; does not know that lie was drinking; was acting like a man who had been drinking." Agiiin by the samo : ''Thought at the time he left Rome, the exciting cause of prisoner's insanity was liquor. " Echols testified: " Prisoner appeared to be drinking ; witness supposed him to be drunk." Bartlett sworn : '' Hid seem like a drunken man." After such expres- sions as these, selected almost at random fnmi the answers of the prisoner's witnesses, it would seem ratiier captious to object to the statements of Gleiui and Ilayden that the prisoner " appeared to be drinking." Such impressions both in ordinary life and in the courts, convey to the mind, with suilicient certainty the condition of a person, so as to enabli' one to pronounce a decision thereon, with a reasonable assurance of its truth. Reall}' no other rule is practicable. If the wit- ness must be confined to a simple narration of facts ; how the person leered or grinned, how he winked his eyes or squinted, how he wagged his head, etc., all of which drunken men do, you shut out, not only the ordinary, but the best mode of obtaining truth. We reiterate then, what we Inive said from the first, — that, legally and philosophically considered, there is no merit in this objection. And in the case before us what benefit would it be to the cause of the ac- cused to exclude this truth? Did not Choice himself state to D. II. Branan, when sober and sane, that, " he was drinking that night; that Webb knew that he was, and ought not to have treated him so?" Why I ask, should Mr. Webb know it, any more than Glenn and Ilayden, except from his conduct and appearance? But all the proof shows that such was his condition the night before the homicide was committed. 5. In the next place, it is complained that when the State had closed its rebutting testimony, the defendant reintroduced Dr. H. W. Brown and Dr. W. F. Westmoreland to prove that the additional facts, proven in the rebutting testimony, did not change their opinions of the insanity of the prisoner at the time of the killing. Each witness stated that he did hear some of the witnesses in rebuttal ; when the defendant moved these facts be read ti them from the evidence as taken down, which the cjurt would not allow to be done. To this assignment of error the court adds: " This motion was made as to Dr. Westmoreland, who stated that he was present while the witnesses were being examined, b it did not hear all their testimony. I had, at the request of defend- ant's counsel, permitted portions of the testimony to be read over in the hearinor of the medical witnesses as a foundation for their further exam- ination; and refused to allow it, any further, stating that ccusel might OPINIONS OK EXPEUTS, HOW GH EN 545 Grades of Murder, short time (lays ; does ) liiui been left Rome, Is testified : be drunk." ich expres- *Ms of tlie ject to t!ie ared to be he courts, ' a i)erson, reasonable [f the wit- he person le wagged >tonly the at, legally ion. And of the ac- to D. H. ight; that '?" Why Hay den, iliovvs that imitted. ad closed iV. Brown ;s, proven e insanity tl that he nt moved which the error the md, who xamined, f defend- 'er in the er exam- sel might state the facts hypothctically, and ask the witnesses' opinion on them." Wo understand the law to be this: Medical men are permitted to give their oj)iiiion as to the sane or insane state of a person's mind, not on tlieir own observations only, but on the case itself, as proved by other witnesses on the trial. And while it is improper to ask an expert what is his opinion upon the case on trial, he may be asked his opinion upon a similar case hypotiietieally stated. And this tlie court expressly offered to permit the defendant's counsel. to do. What moie could be asked? The judge was not bound to read or suffer to })c read, the testimony as taken down. He had already allowed this indulgt-nce, at the request of the counsel ; still it was a matter of favor and not of right. I shall for the present, pretermit the sixth, seventh, eighth, ninth and tenth grounds of error, and consider them together hereafter, in connec- tion with the fifteenth and sixteenth assignments. (). The next error which I shall discuss, is the eleventh ground in the motion for a new trial ; because the court charged the jury, that they should not find tlie prisoner guilty of any grade of homicide l)elow mur- der, and that he was guilty of murder or not guilty at all. The ground is not correctly stated in the motion for a new trial, but differs in the material point from the charge as given to the jury; and this discrep- ancy illustrates the propriety of the view expressed in the beginning of this opinion upon the preliminary question. Judge Bull would have been justified in refusing the motion for a new trial upon this gioiind, because it does not state correctly his charge given. Instead of saying to the jury, by way of direction, that they should not find the prisoner guilty of any grade of homicide below murder, and that he was guilty of UHuderor not guilty at all, the charge was this: " There are several grades of homicide lecognized by the law, involving different degrees of punishment; such as murder, voluntary and involuntary manslaughter, and justifiable homicide. The defendant in this case is indicted for murder, and in the opinion of the court there can be do intermediate verdict between that of guilty of murder, and that of not guilty ; and it is, therefore, unnecessary to charge you on the minor grades of liomicile." In the one case, his charge is in the form of a direc- tion ; in the other it is the expression of an opinion merely, and for that reason, declining to instruct the jury as to the minor grades of homicide, but at tlie same time leaving the jury untrammelled by his judicial fiat. And we concur fully in opinion with the presiding judge, that the killing was murder, or excusable on account of the insanity of the ac- 33 540 OKI NKEXXESS. ("Iioici; r. State. cused. If Wra. A. Choice was sufficiently rational to be criminally re- sponsible for his acts, the killing of Calvin Webb, was, in the eye of the law, murder without provocation, and without one mitigating circum- stance ; if insane, he was entitled to a verdict of accpiittal ; and there can be no intermediate ground. And for the court to have charged the jury as to manslaughtei', would have been foreign from the case made by the jjleadings and the proof. No such defence was set up for the accused; no such request was made of the court. In Bond v. State^^ this court held, that it was not error to iefuse or omit to give in charge to the jury portions of the Penal Code, which have no application to tlie issue submitted upon the pleadings and proof. And the court in that case say: " We ask wiiat had the law of manslaughter to do with this case ? " What a mocker}- and farce for the presiding judge to have instructed the jury as to involuntary manslaughter! And yet he is charged with "manifest error" in omitting to add this! He would have been guilty of manifest folly if he had. Had there been any evi- dence in the case before us, ui)on which the jury might have mitigated the offence from murder to a lower grade of homicide, it would have been different. There was not a scintilla of proof to that effect. "Without the shadow of an excuse, Choice, with deliberate aim, shoots down an unoffending citizen, in the peace of the State. If the law is adminis- tered, his life must atone for it, if he be su])ject to punishment; if he be not, it is fit and proi)er that he go free altogether as would the infant and the idiot. 7. It is alleged as error in the court, that it refused to allow the defend- ant to prove by Printup, Hooper, and others the family and neighborhood reputation of prisoner, as injured permanently in his mind, by reason of the injury he had received. No authority is produced to justify the proof of a particular fact by general reputation — a fact, too, in which tlie public were not concerned. We know of no rule which would allow the introduction of this kind of hearsay testimony. In Wright v. Talham," the question was much discussed, whether letters addressed to a person whose sanity was in issue, were admissible to prove that he was treated as insane by the writers of the letters ; and after undergo- ing several investigations before the Court of the King's Bench and Ex- cheque Chamber it was finally decided by a large majority of the House of Lords, that such letters were inadmissible, unless connected by proof with some act of the person implicated, in regard to the letters them- selves or their contents. » 17 Ga. m. 1 Ad. & El. 3. 8. mm DiaXKEWESS PLEADED IN DEFENCE. 547 Errors Alleged in Instruction of Court. minally re- ! eye of the iig circuni- juul there lunged the eiise matle up for the : V. State,^ 3 in charge ilicatioii to le court in to do Willi Ige to have yet he is He would !n any evi- I mitigated [ have been "Without 3 down an s adminis- 2nt; if he the infant he defend- ^hborhood by reason justify the , in wliioh )uld allow Wright v. addressed 7e that he undergo- 1 and Ex- ;he House I by proof ers thcm- H. The sixtli error alleged in the motion for a new trial, is because tiie judge failed to include in his charge to the jury, the law on tiie material facts proven in the evidence, and insisted on in the argument of counsel ; and especially in failing to charge the jury whether the pris- oner was or was not responsible for crime, if by reason of tiu! injury to his brain or otherwise (mark that expression ! ) he was aflllcted with the disease called oinomania, and by reason of this disease, was irnisistibly impelled, by a will not his own, to drink; and being so impelled, did drink, and thus became insane from drink, and while thus insane, he committed homicide. The court also erred in not charging the jury, that if they believed the prisoner had suffered by injury or otiierwise (mark that again), a pathological or organic change in the brain wiiich produced the disease of oinomania, and by this disease was irresistibly impelled to drink liquor, and from the liquor thus drank became insane, and while thus insane, killed deceased, he was not guilty of murder. And — Seventhly, because the court erred in charging the jury, that if the prisoner labored under a disease of the brain, which did not render him insane, but notwithstanding the disease, knew right from wrong when sober, and then drank liquor, which produced madness or insanity, and killed the deceased, he was not guilty of murder. Eight'hly, because the court erred in refusing to charge the jury, in language or substance, as requested by defendant's counsel, in writing as follows: If the jury believe that prisoner was insane when he left Ivome and came to Atlanta, and continued insane until he killed de- ceased, the fact that he drank liquor in the meantime cannot render him liable, but he must be acquitted of murder. Ninthly, because the court erred in charging the jury that insanity, produced proximately l»y drunkenness is no excuse for crime. Tenthly, because the court erred in charging the jury that insanity was an excuse, unless such insanity was [)roduced by liquor. Fifteenthly, because the court erred in submitting to the jujy the question of drunkenness, as explanatory of his conduct at the time of the homicide ; and that the defendant could not protect himself from the responsibility of one crime, when committed during insanity pro- duced by another crime voluntarily assumed. And — Sixteenthly, because the charge of the court, as a whole, and in each part, was error, in that it submitted to the jury questions not made by the issues and the facts, and did not submit to the jury the questions made by the issues and the facts. M8 DKLXKKXNKSS. Cliolce V. Statf, Now, what is substantially the response of Judge Bull to all this? *• I will not, gcutlcinen of the jury, confuse you or myself by attempting to notice all these learned distinctions. The simple rule laid down by the law is, that if a man has capacity and reason sufficient to enal)le him to distinguisli between right and wrong, as to the particular act in question ; if he has knowledge and consciousness that the act he is doing is wrong, and will deserve punishment, he is, in the eye of the law, of sound mind and memory, and consequently the subject of punishment. For the Code declares that a person shall be considered of sound mind who is not an idiot, a lunatic, or affected by insanity ; or who hath arrived at the age of fourteen years, or before that age, if such person knew the distinction between good and evil. But, though it is the general rule, that insanity is an excuse, there is an exception to this rule, and that is when the crime is committed by a party in a fit of intoxication, though the party may be as effectually bereft of his reason by drunkenness as by insanity produced by any other cause. For drunkenness shall not be an excuse for any crime or misdemeanor, unless such drunkenness was occasioned by the fiaud, artifice or contrivance of another. Nor does it make any difference, that a man by constitutional infirmity, or by accidental injur}' to the head or brain, is more liable to be mad- dened by liquor than another man. If he has legal memory and discre- tion when sober, and voluntarily deprives himself of reason, he is responsible for his acts in that condition. But if a man is insane when sober, the fact that he increased the insanity by the superadded ex- citement of liquor, makes no difference. An insane person is irrespon- sible, whether drunk or sober." I pause to remark how fully does this concluding proposition meet the eighth ground of alleged error in the motion for a new trial, to-wit : that if the jury believed that Cl^oice was insane, when he left Rome and came to Atlanta, and until he killed deceased, then the fact that he drank liquor in the meantime cannot render him liable, but he must be acquitted of murder. Certainly, responds the judge ; for an insane man is irrespo!islbii , whether drunk or sober? But to proceed with the charge : ' ' These are rules for determining the question of insanity and the degree and nature of irresponsibility to the law. The law presumes every man of sound mind till the contrary appears, and the burden of proof is on the defendant, that at the time of the commission of the act, he was not of sound mind. And it ought to be made to appear to a reasonable certainty, to your reasonable satisfaction, that at the time of the commission of the act, the party did not know the nature and quality of the act, or if he did, did not know DliUNKEXNESS XO EXCUSE FOR CHIME. 5411 Admirable discussion by ].iim|il be mad- id discre- )n, he is sane when idded ex- irrespon- ;ion meet 1, to-wit: lome and t that he must be sane man ermininsr iibility to contrary the time 1 it ought lasonable aarty did lot know the act 'vas wrong ; and it devolves upon you to decide whether the defendant has by proof rebutted this legal presumption of sanity. If, after mature deliberation, you are satisfied beyond n doubt, that the prisoner is guilty, you will find so ; if not, you will find him not guilty." Would that I could transcribe this admirable ciiarge entire. For, in our judgment, it submits to the jury, full and fairly the law upon the only questions made by the issues and the facts in this case. Whether any one is born with an irresistible desire to drink, or whether such thirst m.ay be the result of accidental injury done to the brain, is a theory not j'ct satisfactorily established. For myself I capitally doubt whether it ever can be. And if it were, how far this crazy desire for liquor would excuse from crime, it is not for me to say. That this controlling thirst for liquor may be acciuired by the force of habit, until it becomes a sort of second nature, in common language, I entertain no doubt. Whether even a long course of indulgence will produce a pathological or organic change in the brain, I venture no opinion. Upon this^ proposition , however, 1 plant myself immovably ; and f lom it nothing can dislodge me but an act of the Legislature, namely : that neither moral nor legal responsibility can be avoided in this way. This is a new principle sought to be engrafted upon criminal jurispru- dence. It is neither more nor less than this, that a want of will and conscience to do right will constitute an excuse for the commission of crime ; and that, too, where this deficiency in will and conscience is the result of a long and persevering course of wrong doing. If this doctrine be true, — I speak it with all seriousness, — the devil is the most irre- sponsible being in the universe. For, from his inveterate hostility to the author of all good, no other creature has less power than Satan to do right. The burglar and the pirate may indulge in robbing and mur- der, until it is as hard for an Ethiopian to change his skin, as for them to cease to do evil ; but the inability of Satan to control his will, to do right, is far beyond theirs ; and yet, our faith assures us that the fate of Satan is unalterably and eternally fixed in the prison-house of God's enemies. The fact is, responsibility depends upon the possession of will, not the power over it. Nor does the most desperate drunkard, lose the power to control his will, but he loses the desire to control it. No matter how deep his degradation, the drunkard uses his will, when he takes his cup. It is for the pleasure of the relief of the draught tliat he talces it. His intellect, his appetite and his will, all work ration- ally, if not wisely, in his guilty indulgence, and were jou to exonerate tlie inebriate from responsibility, you would do violence Ixjth to his consciousness and to his conscience ; for he not only feels the self- 550 DRUNKENNESS. C'liolcf V. Stato. prompted tise of every rational power, involved in aceountability, bnt lie feels also, precisely what this new pliilosopliy denies, — his solemn and actual wrong-doing, in the very act of indnlgeiiee. Converse seri- ously with the greatest drunkard this side of actual insanity, — just compose him, so as to reach his clear, constant experience, and he will confess that he realizes the guilt, and the-efore the responsibility' of his conduct. A creature made responsible oy (lod, never loses his respon- sibility, save by some sort of insanity. There have always existed amongst men a variety of cases, wherein tiie will of the transgressor Is universally admitted to have little or no power to dictate a return to virtue. But mankind have never, in any age of the world, exonerated the party from responsil)ility, except when they were considered to have lost rectitude of intellect by direct mental alienation. Mr. M. N. Bartlett testified that prisoner after one of his sprees, would swear that he would quit drinking, and be stated to ISIr. Wilkes, that vicious associations would lead 3'oung men to drink ; and he thought there was no security where a young man took to his cups. Here was both consciousness and conscience. He did not seek to shield himself from responsibility, because lie had lost the power to control his will, any more than David did from the crime of "blood-guiltiness," because overpowered l)y his lust, he had caused the life of Uriah to be sacrificed in order th.at he might possess himself of his beautiful wife. On the trial of Kleim, before Judge Euwauds, of spiritual rapping notoriety, in IS to, we find the first clear legal recognition of this mural insanity doctrine — a doctrine which destroys all responsil)iiity to human and divine law ; and one originating, as I verily believe, in an utter misconception of man's moral and physical nature ; an offshoot from that Bohon Upas of humanism, which has so pervaded and poisoned the Northern mind of this country, and which, I fear, will cause the gh^rious sun of our Union to sink soon in the sea of fratricidal blood ! And this is the doctrine which is intended to be covered by the term " or otherwise " twice repeated in the sixth ground of the motion for a new trial, and to which attention was dii-ected by the words in parenthesis, in copying that ground. Had the court been requested, in writing, to give charges upon this doctrine favorable to the prisoner he ought to have declined. For in the judgment of this court no such principle has been recognized in criminal law, whatever may be the opinion of medical writers and others upon the subject. When Choice killed Webb, he was sober, or drunk, or insane. If he was sober, or the homicide was committed in a mere fit of drunkenness, CAPACITV TO COMMIT CKIMK AND MARK CONTKACTS. 551 Less I{u(|uirv(l lii Former Cumc. ability, hut ■ liis solemn inverse seri- iiity, — just and he will )ility of liis Ills rospoii- iiys oxistod isfjressor is a return to exonerated red to have rocs, would 'ilkes, that lie thought Here was M himself ol his will, ," because sacrificec] al rapping this mural sil)ility to eve, in an n offshoot itled and fear, will fratricidal ed by the he motion words in nested, in 'isoner he t no Bucli »y be the le. If he okenness, which is no excuse for crime, in cither of these events, the offence was confessedly murder. But his defence is, thai he was insane. It, then, l)ccomes important to inciuire, what was tiic degree of insanity under which ho lal)ored? For the hvw, acting upon the assumption, jjcrhaps, that all men are more or less insane, and that it is a question of degree only, has established a standard or test by which courts are to be governed in the trial of criminal cases. Judge Blll ciiarged the jury tliat the rule was this : that " if a man has capacity and reason sutlicient to enalde him to distinguish be- tween right and wrong, as to the particular act in question ; if he has knowledge and consciousness, that the act ho is doing is wrong, and will deserve punishment, he is in the eye of the law, of sound mind and memory," and, therefore criminally responsible for his acts. Did he stale the rule correctly? This must be decided b^' authority — to which I must say, very little reference has been made in tlie argument — and not by the speculations of Kay and "Winslow, Bucknill and Tuke, and other medical writers, however ingenious they may be. And it is worthy of notice that a less degree of capacity is required in criminal cases than in civil contracts. It may be an anomaly, still, this difference was distinctly maintained in Bellingham's Case, who was tried for the murder of the Hon. Spencer Pcrcival, in 1812, and was convicted ; by Lord Euskine on the trial of Jlddjield for shooting at the King in 1800, Indeed the amount of capacity which would make one responsible for criminal conduct, would stop far short of binding him upon a civil contract. • Lord IIai.k, in his Pleas of the Crown,' says: 'There is a partial insanity and a total insanity. Some persons that have a competent ijasun, in respect to some subjects, are yet under a peculiar dementia in respect to some particular discourses, subjects or applications ; or else t is partial in respect to degrees ; and this is the condition of every man, especially melancholy persons who, for the most part discover their defect in excessive fears and griefs, and yet are not wholly dcsti- t ite of the use of reason ; and this partial insanity seems not to excuse them in committing any offence, for its matter capital ; for doubtless, most persons that are felons of themselves and others, are under a de- gree of partial insanity, when they commit these offences. It is very difficult to define the invisible line that divides perfect and partial in- sanity, but it must rest upon circumstances, duly to be weighed and considered by the judge and jury ; lest on the one side there be a kind ' p. 30. 552 DRUNKENNESS. riiuicc V, state. of inburnaiiity towards the defects of human nature, or on the other, too great an iiuhilgence given to great eriines. Siu^h a person, as laboring under melanelioly distempers, hath yet, ordinarily as great understanding as ordinarily a child of fourteen years hath, is such a person as may l)e guilty of treason or felony." Arnold was tried in 172.S ' for shooting -it Lord Onslow. Inthiscnse, Mr. Justice TuAcY laid down the rule to he '• that it is not any kind of frantic humor, or something unaccountahlc in a man's actions that points him out to be such n madman, as is exempted from ])unislr.nent ; it must be a man that is totally deprived of his understanding auu mem- ory, and doth not know what * i is doing, no more than an infant — than a brute or a wild beast." The trial of Jlatl/icld took place in the King's Bench l)efore Lord Kenyon in 1800, and is fully reported in 27 Howell's State Trials.- Some of the grounds occupied by Lord Euskine, and in which the court accpiiesced, were substantially : " That it is unnecessary that reason should be entirely subverted or driven from her seat, but that it is sulllcient, if distraction sits upon it, along with her, hold her trembling hand upon it, and frightens lier from her propriety ; that there is a difference between civil and criminal responsibility ; thut a man nffected by insanity is respon- sible for his criminal acts, where he is not for his civil ; that a total deprivation of memory and understanding is not requisite to constitute insanity." In Bellingharu's Case, to which I have already alluded, and which is reported in 1 Collinson on Lunacy,^ tried in 1812, Lord Mansfield, charged the jury that " the single question for them to determine was, whether when he committed the offence charged upon him he had suffi- cient understanding to d>stii\Tiiish good from evil, right from wrong ; and that murder was a crime, not only against +he law of God, but against the law of his cointry." The defendant was convicted and executed, notwithstanding he labored under many insane delusions, as the facts in the case show. lie determined to assassinate the premier, that he might thus secure an oi)portunity of bringing his imaginary grii-vances before the country, and obtain a triumph over the attorney- general. And the test applied in this case by Lord Mansfield, of the power of distinguishing right from wrong, has ever since been adopted as the only one to mark the line between sanity and insanity, responsi- bility and irresponsibility. i8Hargr;ivi's.-;;;li' Tv.iilv s 1). 1218. » p. 650. TEST OF INSANITY r>y^ Tliu KngllHh Cases Reviewed. the other, )crsoM, as ■ as great is sucli a I this case, y kind of -ions that lish'.nciit ; iiiiii nicra- iufant — 3re Lord a Trials.'-' vhich the >vorted or sits upon [htons her civil and I respon- it a total onstitute which is INSFIELD, line was, lad suffi- 1 wrong ; iod, but 3tcd and ions, as )remier, aginary torney- , of the adopted ^sponsi- Mr. Justice Lk Blanc, reiterated the test prescribed liy I^-ord Mans- KiKLi), in King v. Bolder.^ Lord Lynkiiikst did tlic same tiling in the late case of King v. ({fford,- and in the still more recent case of (Ireea Smiths'-^ <>( lurring in IH.'l?, Rlr. Justice PAUicii told the jury that as regards tlie effect of insiuiity or responsibility for crime "it is merely necessary that the party sIdiiUI liave suHlcicnt knowledge and reason to discriminate between right and wrong." With one other citation, I shall conclude tiiis branch of the discussion. In 1813, took place the trial of McNaghtcn for killing Dnimmond, which excited thnuigli England a great degree of interest. J.ord Chief .lust ice TisDALL in this case instructed the jmy that, before convicting the prisoner, they must be satistied that wlicn committing the criminal act he had that competent use of his understanding as that he was doing a wicked and wrong tiling; that he was sensible it was a violation of ilie law of Clod and man. Tliis trial occasioned tiie submitting of cer- tain questions, b3'the House of Lords, lo fifteen judges (tliat being the iuiml)er, instead of twelve as formerly) with a view to eliciting their opinions in regard to criminal resi)onsibility. Those questions and answers were designed to settle the law of England on the subject. Question 1 : Wliat is the law respecting alleged crimes, committed by persons afflicted with insane delusions, with respect to one or more par- ticular subjects or persons; as for insance, when at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with tlieview and umler the influence of some insane delusion, of redressing or avenging s )nie supposed grievance or injury, or of producing some supposed public benefit? Answer: Tfie ojjinion of the judges was that, not- withstanding the party committed a wrong act while laboring under the idea that he was redressing a supposed grievance or injury, or under the impression of obtaining some public or private benefit, he was liable to punishment. Question 2 : What are tlie proper questions to be sub- mitted to the jury when a person alleged to be affected with insane de- lusions, resp.icting one or more particular subjects or persons, is charged with the commission of a crime — murder, for example — and insanity is cet up as a defence? Answer: Before a plea of insanity should be allowed, luidoubted evidence ought to be adduced that the accused was of diseased mind, and that at the time he committed the act he was not conscious of right and wrong. Every person was sup- posed to know what the law was, and, therefore, nothing cotild justify 650. 1 1 Collinson on Lunacy, 673. •«('.& P. 168. •' See Btatement of the rape in Taylor, 513. 554 DRUNKENNESS. Choice V. State. a wrong act except it was clearly proved that the part}' did not know right from wrong. Question 3: If a person, under an insane delusion as to existing facts, C()mn]i:s an offence in conseciuence thereof, is he thereby excused ? Answer : If the delusion were only partial, the party accused was equally liable with a person of sane mind. If the accused killed another in self-defence, he would be entitled to an acquittal ; but if the crime were committed for any supposed injury he would be liable to ti»e punishment awarded by the laws to his crime. The charge of the court, then, tested by a full review of the Englisb cases from Lord Hale to the present time, and with which all the best considerec' American cases agree, is fully sustained. And humanitar- ians should deliberate maturely before they lend their aid to break down a rule which h;i9 received the sanction and approbation of the wise and good for centuries. One other point and we fire done. Was the ver- dict of the jury contrary to the evidence? 9. Under the act of 1853-04, it is not only the privilege, but made the imperative duty of this court, to express an opinion upon the testi- mony in this case, because several of the grounds in the motion for a new trial are, thK,t the verdict was contrary to and decidedly against the weight of the evidence. I have carefully examined the evidence again and again, and speaking, as it were, from the jury-box, rather than the bench, I will state succinctly the conclusions at which I have arrived : The proof has utterly failed to establish that, apart from liquor, the a(!cident of 1850 has inflicted any permanent injury upon the brain of the accused. During the eight j-ears which intervened betweeri the accident of 1850 and the homicide, where was WiUiam A. Choice, and what was his miumer of hfe? He was no recluse, but from Lis educa- tion, social position, and emplo3ments, he mingled much in societv. lie had been a clerk at IVIilledgeville ; and Dr. Gordon, in his testimou}', states as a reason wh^' he noticed hini while there, was that he had often heard him spoken of as a man of a high order of talents, and that his prospects were bright for making a star comodian. Having heard such reports often, and also having seen his name favorabl}- spokew of by the press, he was induced to exan)ine him critically. There were, per- haps, few men of his age more generally known. "Where are all his acquaintances — the cloud of witnesses that might have been brought forward to testify to his insanity? Not to distinct facts, these miglit have been forgotten ; but who would state that they had known him for years, that they had repeatedly conversed with him, and heard others converse with him, that ai)art from the influence of liquor and when entirely sober, they had noticed in these conversations that he was inco- CIIOIC K V. STATK. 555 The Evidence lievkwed. id not know ane delusion ereof, is he ,al, the party the accused quittal; but jld be liable the English all the best hunianitar- break down lie wise and l^as the ver- i, but made 3n the tcsti- lotion for a idly against ;he evidence -box, rather hich I have from liquor, 3n the brain between the Choice, and 1 his educa- in societv. 3 testimony, le had often md that his heard such >okew of by } were, per- t are all his icn brought ;hese miglit >wn him for eard others r and when le was inco- herent and silly ; that when wholly free from the use of stimulants, he was wild, irrational, and crazy. Some few, it is true, have spoken ; but where are the five hundred who keep back ? On the contrary, you are met at every step in the evidence with such expressions as the f oliowino- : "Think prisoner was drunk at tlie time of the difliculty in the bar- room." "Has known Clioice intimately for several years, and ccm- siders him a man of promise and talent, but subject to eccentricities never seen him when he considered him insane; witness thinks him, when drinking, the most dangerous man he ever saw. lias never seen him, only when under the influence of liquor, insane." "Mr. Choice is a very violent man when drinking." " Wlien i)risoner threatened to kill witness, three or four years ago, he had been drinking at the time — ,vhen under the influence of liquor he is a very violent man," The proof of insanity, apart from liquor, in this case, is too meagre to raise a reasonable doubt as to the capacity of the accused to commit crime, "Who cannot count from one to twenty men within tiie cirt le of their acquaintance, wlio never suffered any injury on the head or else- where, and whose rationality, except when drinkinir, was never ques- tioned, concerning whom more proof could be adduced to convict them of insanity, than the record in this case furnishes to prove the insanity of Choice? It may be that owing to the accident of ]8r)0, the defendant was not only more easily affected by liquor, but also, that he had less power to control his appetite for drink. Stdl this, if true, would not excuse him. A man may have i)artial or general insanity, and that, too, from blows upon the head, yet if he drink and bring on temporary fits of drunkenness, and while under the influence of spirits takes life, he is responsible "There are men," says Mr. Justice Stoi.'y, " soldiers who have been severely wounded in the head especially, who well know tliat excess makes them mad ; but if such persons wilfully deprive themselves of reason, they ought not to be excused of one crime by the voluntary perpetration of another." ^ It is insisted particularly that the finding was against the medical testimony in this case ; without repeating it, I would state generally, that the strength of this evidence is greatly overstated in the argument, as tl'e brief of it will show. As it respects this species of testimony generally, the doctrine is this: It is competent testimony, and where thecx^. rience, honesty and iini)artially of the witnesses are undeniable, aH in this case, the testimony is entilled to great weight and consideration. Not that it is so authoritative that the jury are !)()und to be governed by ■ United Staten v. Urew, 5 Alusun. iH. 556 DRUNKENNESS. Choice V. State. it, — it is intended to aid and assist the jury in coming to correct conclu- sions in the case. With somothing short of a hundred more opinions to write out during the recess, to say nothing of numerous other pressing engagements, we have l)estowed upon this case all the time and con- sideration at our command. And what is the case? Choice comes down from Rome to Atlanta. He engages in a drunken debauch, as has been the habit and manner of his life. Webb, the deceased, a constable serves bail process upon him for ten dollars. Choice is greatly incensed, and such was the sense of injury which he felt that he si)oke complainingly of Webb's treatment to Brannan, when he was brought up from ^Milledgoville, the April afterwards. Mr. Glenn who happened to be present, interposed his kind offices, and agreeing to pay the debt the parties separated, while Choice professed to acquiesce in the suggestion of Mr. Glenn that the officer had done nothing more than his duty. It is clear that he was still writhing under the indignity, as he felt it to be, that had been offered him. He said to Thos. Gannon " What do you suppose that damned ])ailiff done? He arrested me for ten dollars, and would not take my word for the amount; " and after soliciting a knife or a pistol, he said he would cut the bailiff's heart or Dr. Dowsing's, — tiie creditor's heart. Rising next morning from the carouse of the overnight, he commenced drinking again, and coming up with Webb, who was walking between tiie Trout House and Atlanta Hotel towards the depot, — he fires a pistol at him, and thus takes his life. The only thing said by deceased was "Don't shoot," and the only words uttered b}' Choice were, '• Damned if I don't kill you any- how." When Webb staggered and fell. Choice started off, saying, " You will take that," or " Damn you take that." In his interview with Mr. Wilkes in the calaboose, Choice ascribes his situation to drink, which made him a fool and a madman ; but made no allusion to any permanent injury to his brain in 1850. Choice under- stood himself much better than the intelligent witnesses who testified, and this whole record demonstrates to my mind that he was right. Unless his offence can be excused or mitigated by the plea and proof of drunkenness the verdict of the jury was fully justified by the facts. The prisoner has had a fair trial. The law, in the judgment of this court, has been correctly administered, and when we have said this, our duty is discharged. Whereupon it is considered and adjudged by the court, that the judgment of the court below be affirmed. rrect conclii- ■e opinions to her pressing ae and con- in a drunken Webb, the ten dollars, ry which lie annan, when Mr. Glenn i agreeing to to acquiesce otliing more le indignity, lios. Gannon .'sted me for " and after heart or Dr. \g from the J coming up md Atlanta IS takes his ," and the 11 you aiiy- 3ff, saying, ascribes his ut made no alee under- 10 testified, was right. nd proof of the facts, lent of this id this, our t, that the DRUNKENNESS ITO EXCUSE FOR CRIME. 557 Shannahau v. Commonwealth. VOLUNTARY DRUNKENNESS DOES NOT MITIGATE CRIME. Shannahan V. Commonwealth. [8 Bush. 4(!3; 8 Am. Rep. 4G5.] In the Court of Appeals of Kentucky, 1871. Hon. William S. Phyou, Chvf Justice . " MouDECAi R. Hardin, \ '- Judges. Belvaku J. Pp:tek.s, William Lindsay, 1. Tbe voluntary drunkenness of a murderer neither cxcu.ses the crime nor mitigates the punisbmeut. 2. One in a state of voluntary intoxication is subject to ttie same rules of conduct and principles of law as a sober man, and where a provocation i^; olfered, and the one oflfer- ing it is killed, if it mitigates the offence of the man drunk, it should mitigate the offence of the man sober. 3. On the question of malice evidence of the prisoner's intoxication is admissible. A. H. Field, for appellant. John Rodman., Attorney -General, for appellee. Appeal from a sentence and conviction under an indictment for murder. The opinion states the case. Pryok, C. J.^The appellant, Matthew Shannahan, was indicted in the Jefferson Circuit Court, for the murder of C. W. Montgomery, and under the indictment w\as tried by a jury and found guilty as charged, and by the judgment of that court condemned to be hung, and from tliat judgment he prosecutes this appeal. It will be necessaiy to recite, in substance, the facts proven upon the trial in order to determine the propriety of the refusal by the court below to give certain instructions asked for by counsel for the appellant, and the giving of instructions in lieu thereof. It appears from the evidence that the appellant, on the 22d of August, in the year 1870, about twelve or one o'clock of that day, an- nounced his intention of going to see Montgomery (the deceased) for tbe purpose of getting his (appellant's) stone-hammer, saying " that ^Montgomery had taken it away." The appellant had been informed that the deceased was working for a man by the name of Shanks. He went to the grocery of Shanks and inquired for Montgomery, and was told that he was in the woods at work some half mile d'stant from the house. While at Shank's he took a dram, purchased a quart of whiskey, and started in the direction of the woods where Montgomery was at 558 DKLNKENNKISS. Shuunuhitn v. Coiiiiiiuinvcalth. labor, aiul upon his arrivsil tluTo found iMonlsroniery and a man by the name of Applegatc at work. The aijpelhint and the deceased, as the witness Applej^ate states, met each other in a friendly manner, and engaged in conversation relative to deceased having previously worked for him, and appellant offered to emi)loy him again. The three drank the quart of whiskey, and late in the evening returned to Shank's gro- cery, where they took another drink and had the quart bottle refilled. A pplegate left them late, and says that when he left them they were still friendly and drinking. The appellant and deceased left Shank's house after night, and went in company to Brown's residence, where deceased was boarding, and reached there about half past eight o'clock at night. From Shank's house to Brown's is a distance of about five hundred ynnls. Upon their arrival at Brown's he refused to permit the appellant to remain all night; but upon the suggestion of the deceased, that if he persisted in refusing he w»»uld sleep with api)ellant in the stable, Brown consented that the appellant might remain all night. The two then entered the family room of Brown, placed the quart bottle of whiskey on the mantle, with about one-third of its contents gone, and conversed with Brown fifteen or twenty minutes. They then left b^' a stairway for their bed-room upstairs, and when they reached the floor above Brown says he heard a scutlle and fall, and JMontgomeiy cried out, '"You have killed vie." He hurried to the room and nut the appellant coming down the stairway with a knife in his hand and witness ordered him not to leave. He made his escape through the back door leading to the rear of witness' premises, and was in a few .'V(lly cut Irails pro- lad killed rson, and The evi- J a quiet, I, unruly, !. There deceased different .ominon> ;{. That the special judge had no power to pronounce tlie judgment upon the verdict. 4. That the court misinstructcd the jury. 5. That the court refused properly to instruct the jury. This court has no power to revise a judgment of convictions for citiier the first, second or third grounds relied upon l)y counsel, and the only question i)resented by the record is, did the c(jurt err in refus- ing tiie instructions asked for by appellant's counsel, and in giving other instructions in lieu thereof? Counsel insists that the instruc- tions given in this case are vmltitudinoua, mixlcdding and inappli- cable. While instructions given to a jury upon such an issue as is here presenteil siiould be as plain and concise as i)ossible, and no more in number than the ease requires, still the defendant's counsel asked twenty-two instructions, and the court, in lieu of and in explanation of tliose instructions, gave about one-half the number, the most of which contain the law of the case, and were certainly not prejudicial to the appellant. The effort upon the i)art of the defence, fiom the legal propositions submitted to the jury, was to reduce the offence from murder to man- slaughter by reason of apitellant's intoxicated condition at the time of the killing. The jjropriety of the instructions on this branch of tlie lase will alone be considered, as all the other instructions given by the court are substantially correct. Instruction No. 9, given by the court in behalf of the ap[)ellant is as folh)ws: " That if, at the time of the alleged commission of the crime charged in the indictment, the accused was, from sensual gratification find social hilarity, and not with the design of committing a crime, under tlie influence of whiskey to such an extent as to seriously interfere with or deprive him of reason, they should find him not guilty of murder; hut, if guilty at all, of voluntary manslaughter, unless they believe from the evidence he drank with the intention of committing the deed with which he is charged. In which case he would be guilty of murder." Instruction No 10 is as follows: " If, at the time of the killing, the defendant was intoxicated from the use of whiskey, and said intoxica- tion was not feigned or simulated, nor contracted with the intention of committing the deed, and the killing was prompted by the intoxication tilonc, and except for it could not have occurred, you should find him not guilty of murder; but if guilty at all, of voluntary manslaughter." The counsel for appellant insists that the following instruction should have been given without containing any of the qualifications embraced in instructions Nos. 9 and 10, viz. : " That if, at the time of the killing. 5(10 DRUNKENNESS. Shaunalmn v. Coniinomvealth. ihe defendant iccis intoxicated from the nae ofivhiskey, and the killing was ]>romptetl by it alone, and except for it would not have occurred, you should find the accused not guilty of murder; but, if guilty at all, of voluntary manslaughter/' In the opinion of this court, if drunkenness can be pleaded in excuse for crime, or oy way of mitigating the punishment on account of crime, we perceive no vaUd reason for withliolding from the consideration of the jury such an instruction as asked for by the counsel for the appel- lant in a case like this. It was a settled rule of the common law that voluntarj' drunkenness excused no man from the commission of crime ; and, instead of palliat- insr the offence, it was held as an aggravation of the wrong committed. yjt the more recent American authorities upon this subject have "' relaxed this rule, and gone so far as to establish as law tlio reverse of the proposition, viz. : " That voluntary drunkenness, instead of r.frgravitJng the offence, is such a mitigating fact as to lessen the punisiiiflent , ' and upon an indictment for murder, in the absence of any proof snowing that intoxication was resorted to in order to enable the party charged to take human life, the fact of dmnkenness itself \s held suflicicnt to reduce the crime from murder to manslaughter. By the statute law of Kentucky, drunkenness is made an offence for which a penalty may be imposed ; and although drunkenness is in violation of good morals :is well as the law of the land, it may be proper, out of charity to the passions of men and their inability to control in many instances either their passions or appetites, not to adhere to the vigorous rule of the common law, and add to the punishment of a partj' who, by committing a penal offence, places himself in such a condition as causes him to commit a still greater offence. But, while we sanction this modification of the common-law doctrine, we are well satisfied that neither the interests of societj' nor the wisdom and justice of law requires or authorizes the judicial tribunals of the country to establish the legal principles that the violation of one law, resulting in inflaming and excit- inc the worst passions of men, shall be deemed a sufficient cause for mitigating the punishment to be inflicted upon those who commit great crimes. " The laiv of England considering hoio easy it is to counterfeit that excuse (drunkenness), and hoio weak an excuse it is (though real)., tvill not suffer any man thus to privilege one crime by another."^ It is true that some of the recent adjudged cases qualify the principle involved by stating " that if intoxication is resorted to for the purpose of 1 2 niackstonc's Comnieutariea, 25, UKUNKEXNESS NO DEFENCE. 5(11 But Relevant on Question of Malice. e killing was curved, yon 'y at all^ of id in excuse lit of crime, deration of r the appel- Irunkenness 1 of palliat- committed, ibject have as law the 3SS, instead lessen thu absence of r to enable less itself is ghter. By ! for which Isolation of per, out of jI in many ie vigorous 13' who, by jndition as e sanction tisfled that iw requires h the Icffal and cxcit- cause for :imit great counterfeit ugh real), '."1 It is principle purpose of stimulating one to the commission of a meditated felony , then there can br no mitigation of the punishment; " but it seems to us that no man unless he is so wanting in intellect as to make him irresponsible for his acts, would be so reckless of his own security as to announce his inten- tion of becoming intoxicated so as to enable him to take liuman life or iiilhct punishment upon his enemy. But, on the contrary, men of violent passions and wiel(>;} Facts of tlie Case. iig, whether connection i^hat we do unkenness. ice, should hat it miti- f voluntaiy > the same ere a prov- iti gates tlie nee of the more than pies herein itruction is e cases of ' involvinjr )nflict with iffirmed. r is capable )nseq«ences Whit of Kauoit to the general term of the Sniiremc Court of the Sec- ond District. The plaintiff in error was convicted of murder in the lirst degree in tiie Court of Oyer and Terminer, for the county of Kings for July, 18G3. '' ^ ' C. E. Pmtt, for plaintiff in error. S. D. Morris, for the People. POTTKU, J. (Omitting a ruling on practice. ) Four points are made in the case, upon exceptions taken by the pris- .ner's counsel, to the refusal of the judge to charge the jurv. The re- quests to charge arc as follows : — 1. "Intoxication does not furnish immunity of crime, but may bo considered in determining what degree ,.f crime has been committed.-' 2. " That intoxication mny be considered in determining whether the liomicide was committed by premeditaled design." .'5. " If the jury believe that the .accused wirs in a state of mind from u.toxication that rendered him incapable of premeditation or desi-n they must find manslaughter. ' ' "^ 4. "If the jury find that the accused was in a state of mind, althouc^h caused by the voluntary use of intoxicating liquor, that his judgment was obscured or impaired, so that he was incapable of knowing the de- ifiee of violence he was perpetrating, or properly calculating its effects. they must find for the lesser offence, manslaughtei-. " In order to show the application of these propositions to the case it IS necessary to present some of the leading facts established by the evi- dence. A fair abstract of these is found in the opinion of the justice who delivered the opinion in the case in the Supreme Court, as fol- lows : — " The prisoner is a car driver. On the night of the 21st of April at eight o'clock, with his wife and two small children, he entered the grocery store of Frederick Mohrmann, at the corner of Fulton and Albany Aveimes, in the city of Brooklyn, and purchased some grocer- ies for his family use. While there he commenced speaking about some railroad conductor with whom he had a quarrel about two hours pre- vious. His wife said the conductor was a nice man, and did not want to do him any harm. He told her in an angry tone not to interfere in his business, and be quiet, otherwise he would punch her. He there upon struck her in the face and kicked her. Mohrmann came from l.ehind the counter and told him to leave the store — that he wanted no fighting, and that if he did not stoj) he would i)ut him out. Kennev «ud he could not put him out. Mohrmann made the attempt and T 564 DRUNKENNESS. Krnny v. People. failed. He thereupon callcfl the witness, Rink, to assist him, and by their joint efforts he was removed from the store to ihe street, and the door locked, and while this was being done he declared he would kill the Dutch son of a bitch — meaning INIohrmann. The prisoner then threw stones through the windows and doors of the store, and said he wanted his two children. The door was opened l»y Mohrmann and the children put out into the street, and the door was closed again. He also threw coal, a coal shovel, a measure, and with a stone of about twenty pounds weight, smashed open the door, and came into the store. Here he took up a saw and a piece of ham and threw them at Moi.r- mann and struck him with them. The prisoner went again into tlu street, and the door was again shut against him. He broke the door in once more and came into the store. There was in the store what the witnesses called a meat bench, upon whioh was lying a large knife. The prisoner seized this knife and struck the bench once, then rushed into the room behind the store, when he met the deceased, John Ravensburg. a person residing with Mohrmann at the time, and with whom the pris- oner had no words or controversy, and struck him three blows or thrusts with the knife, two of which entered the chest, and the other one the abdomen of the deceased, who died therefrom almost instantly. Tlio prisoner at once became quiet, consulted with his wife where he shoiiM go, and as to the best means to escape. She recommended him to go to East Brooklyn, and he left the scene of the murder, going in that direction, after telling his wife that if any policeman made inquiry to say he had not been about there that night." " The proof leaves little doubt that the prisoner was in a state of intoxication more or less at the time, but otherwise in the full possession of his senses, and quite conscious of what he was doing. There was also proof to show that while sober he was civil, but when drunk unusually vicious." "The court instructed the jury, among other things, that voluntary intoxication furnished no immunity nor excuse for crime ; that even where intent is a necessary ingredient in the crime charged, so long as the offender is capable of conceiving a design, he will be presumed, in the absence of proof to the contrary, to have intended the natural consequences of his own act, and when one, without provocation, killa another with a deadly or dangerous instrument, no degree of intoxica- tion, short of that which shows that he was at the time utterly incapable of acting from motive, will shield him from conviction. In the present case the jury would consider from the conduct and acts of the prisoner in the afternoon, as disclosed by the testimony of those who were with him, from his going into the store for the luirpose of making a purchase INSTRUCTIONS AS TO MlKDKIl. 5(1^ Exceptions to Charge. lim, and by 'ct, nnd tlu' 3 would kill ■isoncr then ind said lie aiin and tlic again. lie ic of about o the store. Ill at Moi.r- lin into Hk the door in ire wliat the knife. The rushed into lavensburg. Din the pris- ■8 or tlirustN icr one the intly. Tho ■e lie shotiM i him to gn ling in that l; inquiry to leaves little or less at , and quite show that t voluntary that even so long as •esumed, in the naturii! ation, kills )f intoxica- y incapable the present he prisoner ) were with a purchase of famil}' groceries and supplies, and the otliorcircnrastanccs attendant and immediately consequent on the transaction, whetlier he was cai)al)lc' of acting from motive or not ; that the principal question to l)e detci- mined by the jury, if they found the prisoner guilty of killing the de- ceased, was whether the crime was murder or manslaughter. To convict of murder it was necessary that the killing should have been perpetrated from a pre mcxlitated design to effect the death of the deceased or of any human being; it was therefore sufllcient to convict, if the intention of the prisoner was to kill the storekeeper, although he may not have in- tended to kill the dc ^osed ; if that intention existed, although it was conceived and formed immediately before the fatal act was committed, the offence was murder ; if, on the other hand, the act was committed without a design to effect death, in the heat of passion, then the oriuie wouM be reduced to manslaughter. It therefore became material for them to consider whether such intent had been satisfactorily proved. To determine this, it was proper that the manner, acts, and conduct of the prisoner, prior to the act, his declaration that he would kill the storekeeper, his acts after the declaration, the instrument used, and the manner in which it was used, and his acts, conduct, and statements im- mediately after tho offence was committed, and upon his arrest, should l)e taken into view and carefully considered, and as the testimony showed that the prisoner was angry, and in a passion, at the time of his struggle with the storekeeper, and when he was put out of the store, it was especially important for them to consider what length of time elapsed after that before the fatal act was committed, in determining whether he was acting under the impulse of passion, without any inten- tion to kill, or whether such intention had been formed, and in fact existed when the fatal act was committed. If such intention was shown, they would find the prisoner guilty of murder ; if not, they would then convict him of manslaughter only." To each of the requests, made by the prisoner's counsel, above stated, the court declined to accede, except so far <•, ^s embraced and covered by the said charge, and refused to charge the jury as so re- quested, further or otherwise than as is charged, to which decision and refusal the counsel for the prisoner then and there duly excepted. The whole charge of the judge is given, in order that the distinct points in the requests to charge may be seen. The charge is plain, clear, and conceded to be unobjectionable. No exception was taken to it. It was as favorable to the prisoner as he was entitled, from the case as it appears in all that was charged. The prisoner was indicted 5(10 UUUNKKNNKSM. Ktiiiiv r. I'c()|ili'. under the liftli Hcction of Uic net of 1802,' for imiidi'r in the first (lc<;i'oo. uiid \v:is coiivictiul of thiit criino, tlitit is '• of a prcnu'ditiited design to t'ffct'l the (U'titli of ii hninnii hi-iii;:. " It is iKJt chiimed thiit tliis net woidd iu' murder in Ih" second degree. If it wivs not wilful or preniedilated lunrtler, it would hi shuiglUer in th(! tliird degree, for the reason that the blows were strut iv in the heal of passion without any design to effect death, or inaii>.lMugliter in the fouilh degree, for the reason that the person was in such an extreinc condition of insensibility l)y reason of intoxication, or otherwise, that he was incapable of acting from volition. This latter condition is not claimed in behalf of the prisoner, and there is nothing in the evidenci- to show that he was not capable of reasoning or competent to control his will. How, ihen, would it have been proper for the Judge to have charged the jury, that intoxication might be considered by them in determining what degree of crime had been committed. It is not claimed that there was any intoxication, but such as was voluntary. There was no previous provocation. The proi)osilion was not that the Jury might consider the intoxication of the prisoner upon ) question whether the blows were struck in the heat of passion, bu determine wliat crime had been connnitted. ''This," as was well ixinarked l)y Denio, J., in People v. nof/frs,- "would be precisely the same thing as advising them that they might acipiit of murder on account of the prisoner's intoxication, if thev thought it sulHcient in degree." This proposition in effect was what the court was reipie^ted to charge in the first and second prcjpositious of the prisoner's counsel. If ve are riuht in this view, the case of People v. Rogers, and the opinions delivered therein, and authorities therein cited, are conclusive, and control this case. The principle involved in the proi)ositions or requests to charge in this case cannot be distinguished in effect from that. The rule estab- lislied in that case, and in fact, the uniform rule found in all cases is : " that where the act of killing is unequivocal and unprovoked, the fact that it was committed while the perpetrator was intoxicated, cannot be allowed to affect the legal character of the crime." The requests to charge, therefore, that the jury might consider intoxication, — without refer- ence to the degree of intoxication — in determining what crime had been committed, or whether homicide had been committed '' by premeditated design," were propeily denied by the judge. The third recjuest to charge, while it is subject to the same objections as the first and second are, would, in addition to those objections, if I Ch. li)T. •■; ISN. Y.-20, -21. rst (logrcc. design to ml (l(>gn'0. slilUglitfl- 111 the lu-al Iter in tlio II ('XtlCtUf ■wisi', tliJiL lion is not. e evidence to control ge to iuivc i»y tlu'iii It is not 'olunt.aiy. t tliat the ) question ^otenniiic larlved l)y mie tiling lit of the ' Tins ■go in tlie are riulit delivered ntrol tills to cliargc lie estal)- cases is : fact that e allowed 3 cliarge, ut refer- had been leditated jjections 3tions, if DUrNKKNNKSS. ah; Att Affecting Design, ciiiirged, hv ('([iiivaii'iit to saying to the jiiry that if the prisoner, by his v(jluntary intoxieiition, liad rendered iiimself incapable of premeditation or design, the law would not iinpiite to liini the offence which would otiierwise i)e its legal charaetir. Ilarii:^, .1 , in the case of I*i(}j)li' v. Ii()(je)'s. said: "I am iKjt aware that sucii doctrine has before been iisserted. It is ci-rtainly unsouiul " Indeed 1 have doubts whether the cliarge of the judge in this respect was not more favorable fo the pris- oner than the rule would justify. It may fairly bi' implied from the charge that the jmlLre bi' nded to instruct the jury that there was a de- gi'0(! of voluntary int(f intoxicating liquor, that liis judgment was obscured or impaired, so that he was incapable of knowing the degree of violence he was perpetrating, of properly calcu- lating its effects, they must find for the lesser offence, manslaughter." The court properly refused so to charge, and the previous requests were only modifications of the same general idea, namely, that tlie state of intoxication might be taken into consideration by the jury, by which the crime of murder could be reduced to manslaughter, if they found the prisoner was under the influence of intoxicating liquors at the time he committed the crime, when the same offence, if committed by him when not intoxicated, would have been murder. In this State the cases of People y, Hammill and Ptople v. 7?o6oi. 4 Humph. 13(!. 2 9 Humph. 063. DRUNKENNESS. 575 Drunkenness as Affecting Decrees of Crime. 5tiitc of in- )Ji this sul)- liverod tlio n point of , when the » the pecu- , and witli i, affeetinjjf considera- ivhat is the \ purpose, n existing be, on a it spirits? ite or the 'ced from it was the act? T(. c'h a ease, e whetlier I point of distinctly IS greatly liberation )arty ab- akeii into ere done the case lat case, le killin<: r, and it in waif, le result to man- slaughter, hut still stillieient to mitigate it to murder in the second de- gree, if it be really the true cause of the excitement, or whether it has l)een the result of premeditation and deliberation ; and in all such cases, whatever fact is calculated to pass light i\\}nn the mental status of the offender, is legitimate proof; and among otliers, the fact he was at the time drunk, not that this will excuse or mitigate the offence if it were (lone wilfully, deliberately, maliciously, and i)renieditate(lly, Avhich it might Avell be, though the perpetrator was driuik at the time, but to show that the killing did not spring from a premeditated puri)ose, but sudden passion, excited l)y inadequate provocation, such as might rea- sonably be expected to arouse sudden passion and heat to the point of takiiig life, without premeditation and deliberation." Here the court explicitly lays down the rule to be, that in all cases where the question is between murder in the first, and murder in the second degree, the fact of drunkenness may be proved, to shed light upon the mental status of the offender, and thereby to enable the jury to determine whether the killing sprung from a premeditated purpose, or from passion excited by inadequate provo- cation. And the degree of drunkenness which may then shed light on the mental state of the ofiemlcr, is not alone that excessive stale of intoxication which deprives a party of the capacity to frame in his mind a design deliberately and premeditatedly to do an act ; for the court says that in the state of drunkenness referred to, a party well may be guilty of killing wilfully, deliberately, maliciously, and premeditatedly ; and if he so killed, he is guilt}^ as though he were sober. The principle laid down by the court is, that when the (juestion is, can drunkenness be taken into consideration in determining whether a party be guilty of murder in the second degree, the answer must be, that it cannot ; l)ut when the question is, what was the actual mental state of the perpetrator at the time the act was done, was it one of delib- eration and premeditation, then it is competent to show any degree of intoxication that may exist, in order that the jury may judge, in view of such intoxication, in connection with all the other facts and <'ircumstances, whether the act was premeditatedly and deliberately done. The law often implies malice from the manner in which the killing was done, or the weapon with which the blow was stricken. In such case, it is murder, though the perpetrator was drunk. And no degree of drunkenness will excuse in such case, unless ])y means of drunken- ness an habitual or fixed madness be caused. The law in such 576 dulnkknm:s8. Ilalle r. Stutc. cases does not seek to ascertain the actual state of the perpetrator's mind, for the fact from which malice is implied having been proved, tht' law presumes its existence, and proof in opposition to this presumption, is irrelevant and inadmissible. Hence, a party cannot show that he was so drunk as not to be capable of entertaining a malicious feeling. The canclusion of law is against him. But when the question is, whetiier a party is guilty of murder in the first degree, it becomes indispensable that the jury should form an opinion as to the actual state of mind with whicii this act was done. All murder in the first degree (except that committed by poison and by lying in wait), must be perpetrated wilfully, deliberately, maliciously and prenieditatedl}'. The jury must ascertain, as a matter of fact, that the accused was in this state of mind, when the act was done. Now, according to the cases of Swan v. State, and PiHle v. State, any fact that will shed light upon this subject may be looked to by them, and may constitute legitimate proof for their consideration. And among other facts, any state of drunkenness being proved is ;i legitimate subject for inquiry, as to what influence such intoxication might have had upon the mind of the offender in the perpetration of the deed. We know that an intoxicated man will often, upon a slight provoca- tion, have liis passions excited and rashly perpetrate a criminal act. Now, it is unphilosophical for us to assume that such a man would, in the given case, be chargeable with the same degree of deliberation ami l^remeditation that we would ascribe to a sober' man perpetrating the same act, upon a like provocation. It is in this view of the question that this court held, in Swan's Case, and in Pirlle's Case, that the drunkeuiiess of a party might be looked to by the jury, with the other facts in the case, to enable them to decide whether the killing were done deliberately and premeditated ly. But his honor, the Circuit Court, told the jury that drunkenness was an aggravation of the offence, unless the defendant was so deeply in- toxicated as to be incapable of forming in hi a mind a design deliber- ately and prenieditatedly to do the act. In this charge there is error, for which the judgment must be reversed. Meversed. DRUNKENNESS. 577 Iiitoxicatiou uiul Muutal Unsouudness. rpetmtor's ) roved, the esumption, that he was ling. The rder in the I form ail was done. >oison and iialieiously ' fact, that le. Now, State, any ed to by lideration. •oved is a toxieatioii stratioii of t provoca- minal act. would, ill •ation ami •ating the m's Case, be looked to decide mess was leeply iii- 1 deliber- error, for versed. DRUNIiENNESS- INTOXICATION AND MENTAL UNSOUNDNESS. Beasley v. State. [50 Ala. 14!). 1 In the Supreme Court of Alabama, June Term, 1873. Hon. Thomas M. Peters, Chief Justice. " RoHEKT C. BiacKELL, ^ -^^sociatc Justiccs Drunkenness —Intoxication and Mental Unsoundneaa T>i.oH„»ori i,„ t% u may produce inioxication or mental unsou,Kh.e°r So f .r TJu . . , »'y--Dr°nkenne88 no defence to crime. But mental unsoun'l.eir resuUi^g rTafZlZs^Zl' 'I "l overthrows the prisoner., sense of right and wrong, he an exc^Te or^'liSSon for Sim;! From the Circuit Court of Madison. Tried before the Hon. ^Y. J. IIaualson. Houston s might be looked to as a means of producing this effect. The charge of the court was calculated to misdirect the jury in making this iiKjuiry. Tlie evidence of insanity of the accused may have been regarded l)y the learned judge in the court below as very feeble, yet this would not jus- tify a charge which, in effect, withdrew it from the jury.*^ The second charge above quoted, which is numbered the fifth in tl\p bill of exceptions, is erroneous. It is a charge upon flu To* t of the evidence, without the request of either party, ^n 7 '/or v. A/a?c,- this was declared to be error. Besides the chan l free froT' contra- dictions in itself. It is ver}' well calculatetl . onfuse and li iead the jury. The testimony was not wholly free frm/i contrntlictions. Yet it is founded on the presumption that thei-e was no s eh contradiction. Doubtless the learned judge intended to charge the jury, if they believed ' Whart. & Stille's Med. Juris., p. 50, ^ect. 66. 2 U S. r. McGlue, 1 Curt. C. C. 1; 1 liCad. Cr. Cas. 87, and notes, 93 ; Rogers' Case, supra, 1 Russ. Cr. 1,2. ' State V. Bullock, 13 Ala. 413. * 4 Bla. Com. 25. 6 U. S. V. Drew, 1 Lead. Cr. Cas. 115 and notes. Martin v. State, 47 Ala. 564. ■ 43 Ala. 312. ;haraeter of nere drmilv- incs. But Hill, tho liu- son incapa- ;wo degrees of these i» 30, where it kstone, and and, "tho his excuse, y man thus runkenness ic'h remains •undness, if lent of his ine.-'"' Here some proof itoxicatioii. lie whether om the in- .'rthrow the runkenness e elifirge of is inquiry, •(led l)y the dd not jus- fifth in tlio fpct of the /State,' this onn contra- [ii.5lead the ns. Yet it itradictioii. ey believed Cr. Cas. 115 INTOXICATION OF INI'ANT. r.8i Coinnionwoalth v. French. fi'om the evidence that the defendant was merely drunk and not insnne, when he committed the act of killing, then he was guilty as charged in the Indictment; but, if they believed he was so insane as not to know riglit from wrong, then he was not guilty. This wouM have been cor- rect. The unsoundness of mind whicli excuses a criminal act must be of such degree as deprives the accused of the capacity to know right from wrong. Short of this it does not excuse.' The monstrous barbarity of the act of killing shouhl not be admitted as a presumption of insanity.'^ The judgment of the court below is reversed, and the cause is re- manded for a new trial ; and the accused, Henry Beasley, will be held to answer the indictment under which he has been arrested, until dis- charged by due course of law. INTOXICATION OF INFANT. C03LM0NWEALT1I V. FrENCII. [Thatch. Cr. Cas. 108.] In the Boston Municipal Court, March Term, 1827. Before Hon. Pkteu O. Tiiatcheu, Judge. A temporary mental derangement prouuced by drinking intoxicating liquor, under which ii boy of thirteen years of age committed u theft, authorizes a jury to acquit him. This was an indictment against the prisoner, for stealing the watch of one Harvey McClenathan, in his shop, on the 17th of February, 1827. McClenathan, the prosecutor, testified that the prisoner, who was in his thirteenth year, with one Cyrus Wilder, a boy of about the same age, came twice to his shop in Purchase Street, on Saturday evening, tlie 17th of February, at about seven o'clock. The second time he sold to French a cigar, and to Wilder a cake of ginger bread. While they were in his shop he took out his watch and hung it over his desk, which was near to the door leading to the street. Soon after they had left the shop the second time. Wilder returned for another cake of ginger ' 1 Rus. Cr. 9, Sharswood's ed. and notes; Mosler'8 Case, 4 Pa. St. 2«4. Stark's Case, 1 .Strobh. 479. 582 DRUNKKxNNESS. Coininouwealth i'. French "bread, but came no further than the door. Shortly' afterwards the watch was missed, and his suspicions i-ested on these boys. He went to the house where French lived, saw him andcliarged him witli stealiiijj; the watch, but he strenuously denied the fact. The next morning, however, French informed him that the watch was in the possession of one Alfred Johnson, anotlier lad, and upon a warrani Johnson was taken ■with the watch, and he, French and Wilder were carried before th(> police court, where, upon their examination, Johnson and Wilder were discharged, and French was committed for trial. Curtis Wilder testified, that he knew nothing of the taking of the watch till French showed it to him as they were going from McClenu- than's shop that evening to a book auction, in Broad Street. Alfred Johnson testified that Frencli and Wilder came that evening to a cellar where he was, that French took him aside and informed him that he hiul ■iaken a watch. He advised him to return it to the owner, and he got it into his own possession, with the intention of ioinrning it to the owner the next morning. Tlie evidence for the prosecution was here closed. A female, whose name was Miram, a witness for the prisoner, testified that she resided in the family of the f atlier of tlie prisoner ; that tho evening on which this occurred, French appeared to be intoxicatt-d •with liquor, and under a derangement of his intellect, which she imputed to the liquor which he had taken. McClenathan, being called again, admitted that when the boys first came to his shop, he sold them throe cents worth of tom and jerry, wliich they drank t^are. On beiMji interrogated as to the composition of that liquov, he refused to answer the question until he was informed by the court that it was a proper question to be answered * v him. He then said that the liquor was composed of eggs and sugar, beaten together with ginger, allspice, nutmeg and saleratus, to which was added a portion of rum, brandy or gin to suit the purchaser. He further said that he sold this composition to all who wanted it, children as well as men, and that it was usually sold in shops similar to his own. Austin, for the Commonwealth. A. Moore, for the prisoner. TiiATciiKii, J., instructed the jury substantially as follows: — If you believe that the prisoner had been put into a state of mentnl derangement, by drinking the noxious liquor and smoking the ciji:ir which the prosecutor sold to him at the time, and committed the act while in this condition, it will be your duty to acquit him of the charge. It is an immoral act in tlie prosecutor to sell to these children such i> vile composition, and it miglit well have hajipened that tiie combined DUUNKENNESS. 583 Insanity Resulting Tlierefrom. crwarda the . He went vith stealiiijr ct morning, jssession of )n was taken before the Vilder were king of the (1 McClenu- et. Alfred r to a cellar that he had and he m)\ ? it to the n was hen- er, testified f; tluit the intoxicate! 1 he imputed lied again, bhem three On being to answer 3 a proper liquor was ', allspice, brandy or )mpositinii as usually ir. of mental the cigiir d the act 16 charge. sn such p combined influence of the liquor and cigars on a child of so tender years would produce a temporary insanity. This case essentially differs from that where a crime is committed by a person, who by a free indulgence of strong liquors, has at the time voluntarily deprived himself of his reason. By the policy of the law this rather enhances the offence. It was, how- ever, an excuse constantly offered by offenders, and it is certainly true, that but few crimes are committed by persons who are habitually tem- perate in the use of ardent spirits. The jury returned a verdict of acquittal, and after an admonition from the court the prisoner was discharged. DRUNKENNESS — INSANITY RESULTING THEREFROM Corn WELL v. State. [Mart. & Yerg. 147.] In the Supreme Court of Tennessee, 1827. Hon. Robert Wiiytk, " John Cathon, " Jacob Pkck, " IIeNUV CUAllB, Judges. Insanity resultlnar from long continued drunkennfss is an excuse for crime; but insanity tlie immediate result of intoxication, is not. * At the May term of the Circuit Court of Davidson county, Burrell Cornwell and Moses M'Clanahan were indicted for the murder of Owen Hughes. In the progress of the cause Lewis Carter was introduced, who swore that on the evening of the homicide, and about two hours previously, the prisoner and ^I'Clanahan came to the house of witness, and M'Clan- ahan asked witness whether he had seen a man by the name of Hughes, after which he called for liquor, which he and the prisoner divided be- tween them, touched glasses and drank, after which M'Clanahan took a knife out of his pocket, and observed to witness that there was but one man against whom he hml enmity, and struck his knife several times into the baluster, and said if he caught him that night he would give him first hell; he then said to the prisoner, " let us go." To the ad- 584 DRUNKKNNESS. Coniwj'll r. State. missions of tlio doclarations of M'Clanahan, as evidence against him, the prisoner, by his counsel, objected ; but the objection was overruled, and the evidence admitted. It was proved that the prisoner was intox- icated, and that a free use of ardent spirits on the part of the prisoner produced partial insanity. The court, after some remarks upon the subject of malice, charged the jury, " that if, at the time the homicide was committed, the prisoner had not sullicient understanding to distinguish right from wrong, and was in a state of insanity, it wotdd be excusable; but that nuist be proved ; but if his insanity or bad conduct arose from drinikenness, it was no excuse. There may be cases where insanity is produced by long- continued haltits of intoxication ; but it must be a permanent insanity. Insanity which is the immediate effect of intoxication is no excuse ; the party is fully resi)onsible for all his acts." The counsel ft)r the prisoner requested the court to charge the jury, if they belii'ved all the circumstances of the case, that the prisoner at the time of slaying labored under a temporary suspension of reason, although intoxication might have been the exciting cause, it is a cir- cumstance of excuse or mitigation, and more especially if intoxication were not int.'ndcci at the time of drinking, but tlie same was accidental, or a consequence not intended or apprehended. But the court refused to cliarge, except as above. The jury found the ])risoner guilty of murder; upon which finding judgment was entered tlu^t he be hanged, etc. A rule for a new trial was obtained, which, upon argument, was discharged, and the case brought by the prisoner to this court by appeal in the nature of a writ of error. Balfli, Dtiuaot, and 0. B. Hayes, for appellant. A. Hayes, Attorney-General, and Grunthi, for the State. The opinions of Wuvtk, Cathon, and Ckabb, J.J. — Peck, J., dis- senting — were delivered ])y Crabb, J. (Omitting rulings on other points.) It is also contended that the court below erred in their charge to the jnr}', and in refusing to charge as requested. The bill of exceptions pre- sents us with wliat the jutlge said, as follows: " The court, in charging tlie jury, after defining the crime of murder, stated that the fact of kill- ing being provcl, the law presumes malice ; and it lies on the defendant to show, from proof, cirv^^umstances of excuse or alleviation, unless thev otherwise apjiear, INIalice is express or implied ; and, when there is no previous grudge it is implied when one kills another with a deadly weapon, not having been previously assaulted, in which case it is mur- DRUNKENNESS AN EXCUSK VtHl CKIME. 585 Till' Diuijrors of Hiicli Doctrine. gainst him, overruli'd, was intox- le prisoner c, charged Ik' prisoner n-ong, and !it must be u'nness, if (1 l)v long- t insanity. :cu.se ; the the jury, iri.soner at )f reason, t is a cir- oxicatioii fC'i(len*!il, t refused ^h finding new trial the case of a writ , J., dis- ;e to the ons pre- Jharging tof kill- fendant ess tliev 're is no deadly is mur- der ; you will in(juire wlu'ther tiiere was express malice, or wliether there was a previous assault. If, ut the time, he had not suflieient un- derstanding to know right from wrong, and was in a state of insanity, it would be an excuse ; but that uiust l)e proved. But if his insanity or unusual bad conduct arose from drunkenness, it is no excuse. There in:iy Y < ises where insanity is produced by long-continued habits of into: 1 tion, but it nuist hv a permanent insanity. Insanity which is the iuiinediate effect of intoxication is no excuse ; he is cciunlly respon- sible for all his acts. The counsel for the })risoner recpiested the court to charge the jury, if they believed, from nil the circumstances of the case, that the defendant at the time of the slaying laI)ore(l mider a tem- porary suspension of reason, and was insane, althougii intoxication might have been the exiiiting cause, it is a circumstance of mitigation or ex- cuse ; and more especially, if intoxication were not intended at the time of drinking, but the same were accidental, or a consequence not intended or apprehended. But the court would not so charge, but said insanity thus produced was no e.vcuse." Three cases of conviction for murder have been brought before this court at the present term ; in two of which, the prisoner was defcmded, in the court below, on the ground of madness, occasioned l)y drunken- ness ; and yet in neitlier does it seem to us was there a colorable foundation for such a defence. This court would be remiss in the [)erform.ance of their duty if they did not, under these circumstances, declare the law exi)licitly on this most important suoject. In the argu- ment of these causes very untenable positions have been assumed, and very dangerous doctrines have been advanced by counsel. And from what was stated by some of those counsel, these doctrines have been repeatedly urged, an! sometimes sanctioned in the courts below. It has become fashionable of late to discourse and philosophize much on mental sanity and insanity. New theories have been broached, and various grades and species of mania have been indicated. Some reasoners have gone so far as to maintain that we are all partial maniacs. Whatever differences of opinion there may be as to the construction and operations of the mind of man, whatever ditflculty in discovering the various degrees of unsoundness, it is only necessary for us to ascer- tain the kind of prostration of intellect which is requisite to free a man from punishment for crime by the law of the land. It is with this alone we have to do. " What the law has said, we say ; in all things else we are silent. We put our feet in the tracks of our forefathers ; von mens hicticrnio, sed qiim jn'oicepit Offellus. Let us then for a moment resort 586 DRUNKENNESS Cormvell v. State. to the sages of the hiw of different ages, and learn from them whether that species of frenzy which is produced by inebriety constitutes any excuse for crime, and what sort of insanit}^ it is which will serve this purpose ? The good and the great, the humane yet firm, Sir Matthew Hale, in in his history of tiie I'loas of the Crown divides madness, dementia, into three kinds, — idiocy, accidental or adventitious madness, and drunk- enness. " The second species, when it amounts to a total alienation of the mind, or perfect madness, excuses from the guilt of felony and ti'eason, and further, persons atflicted with accidental madness, whether temporary — as in the case of lunacy — or continued. If they are totally deprived of the use of reason, cannot be guilty ordinarily of capital offences ; for they have not the use of understanding, and act not as reasonable creatures ; but their actions are, in effect, in the condition of brutes." ' "The third sort of madness is that which is dementia affectata, namely, drunkenness. This vice doth deprive man of the use of reason, and puts many men into a perfect but temporary frenzy ; but by tlie laws of England, such a person shall have no privilege by this voluntarily contracted madness, but shall have the same judgment as if he were in his right senses." In the case of Reniger v. Fogossa,- wo have a rule laid down, which has been approved again and again, from the early day in whicli it was advanced to the present time, " that if a person that is drunk kills an- other, this shall be felony, and he shall be hanged for it ; and yet he did it through ignorance, for when he was drunk he had no understanding or memory ; but, inasmuch as that ignorance was occasioned by his own act and folly, and he might have avoided it, he shall not be privileged thereby." Here we have the strongest case put; a case of a total de- privation of understanding by drunkenness. Yet it is held to form no excuse. Lord Coke, in his commentaries, ^ says: "As for a drunkard, who is voluntarius daemon, he hath no privilege thereby; but what hurt or ill soever he dotli, his drunkenness does aggravate it." And we are told in Beverh/s Case,^ "that although he who is drunk is for the time non compos mentis, yet his drunkenness doth not extenuate his act or offence, nor turn to his avail." Hawkins, in his Pleas of the Crown, ■'• says: " That he who is guilty of any crime whatever, through his vol- untary drunkenness, shall be punisheci for it as much as if he had been ' p. 30. « Plowden, 19 3 p. 247 11. < 4 Rep. 125. 6 Vol. I., ch. 1, sect 6. cm whether titutes an}- serve this w Hale, in lentia, into md drunk- ienation of felony and s, whether are totally of capital act not as »ndition of affectata, of reason , )ut by the oluntarily e yfere in wn, which ich it Mas : kills an- yet he did rstanding y his own privileged total do- > form no Irunkard, vhat hint d we are the time is act or Crown,'" 1 his vol- had been DRUXKENXKSS. 587 Tlic Early KiwlLsh Cases llevievvcd. sober." The erudite commentator on the laws of England, writes as follows on this subject: ^ "As to artificial, voluntarily contracted mad- ness, by drunkenness or intoxication, which, depriving men of their reason, puts them in a temporary frenzy, our law looks upon this as an aggravation of the offence, rather than as an excuse for any criminal misbehavior. The law, considering how easy it is to counterfeit this excuse, and how weak an excuse it is, thougli real, will not suffer any man thus to privilege one crime by another." But the part of the Judge's charge which is most earnestly objected to is in the following words : " There may be cases where insanity is pro- duced by long-continued habits of intoxication, but it must be a per- manent insanity. It has been already stated by us that madness, or insanity, if the term be preferred, occasioned immediately by drunkeiniess, does not excuse. Yet the judge correctly says, " that if, by the means of drunkenness a permanent, or, as Lord IIalk to the same effect ex[)ressed it, an habitual or fixed madness be caused, that it will excuse." '-* In the above extracts we see the law in this respect. A contrary doe- trine ought to be frowned out of c'rculation, if it has obtained it, by every friend to virtue, peace, quietness and good government. The history of criminals and criminal trials shows that he who has not learned betimes to restrain the evil inclinations of our nature, — envy, malice, revenge, and their kindred passions, — but has a sufHciency of moral sense left to deter him uona. the commission of enormity while sober, will often " screw his coura?;e to the sticking-point," by the free use of ardent spirits, and, thus made able to silence the twinges of his conscience, will voluntarily imitate the demon. But let courts once ap- prove the doctrine now contended for, and it will not be resorted to as a plea by persons of this description alone ; but even the cold-blooded, calculating assassin will never be a sober homicide; he will always ex- hibit himself at the bar of a court of Justice as a specimen of insanity produced by drunkenness. And thus this degrading and disgraceful, yet too common vice, instead of being hunted from society as the bane of good morals and social and domestic happiness, will be converted into a shield to protect from punishment the worst of crimes. All civil- ized governments must punish the culprit who relies on so untenable a defence ; and in doing so they preach a louder lesson of morality to all those who are addicted to intoxication, and to parents, and to guard- ■ 4 Black. Ch. 25, 26. » SeeH. H. P.C.pt. 1, ch. 4. r.88 DRUNKENNESS. Ciirtcr 1'. State. ians, and to youth, and to sooiely, than " comes in the cold abstract from pulpits." In order to be clearly understood, we have su|)poscd the strongest case, — a case of entire jirostration of intellect immediately occasioned by drunkenness, and have said that that constitutes no excuse. Instances, however, of heinous offences, committed under such cir- cumstances, are boliovod to be of rare occurrence. They are much oft cner the result of that midway state of intoxication which, although sufTicient to stimulate the evil-disposed to actions correspondent with their feelings, would not excite the good mnti to criminal deeds. It is generally the drunken man acting out the sober man's intent. He says and does when drunk what he thinks when sob^r. Tlie court entirely concur with the Circuit Court in the charge given to the jury. Parts of this opinion may appear to partake of the character of a moral lecture. It is believed to be called for by the occasion. We have scon before us this day three fellow -beings who aie about to be ushered into the presence of their Maker, two of whom may probably attribute his unnatural exit from this world to the immoderate use of ardent spirits. Disagreeable as it is, the solemn duty is devolved upon the court of pronouncing, in this instance also, the sentence of the law that the judgment of the Circuit Court be affirmed. INTOXICATION— INSANITY IlESULTING THEREFROM — TEST OF IN- sanity — partial insanity. Carter v. State. [12 Tex. 500.] In the Supreme Court of Texas, 1854. Hon. John Hemphill, Chief Justice. „ „^ ' y Associate Justices. " ROVALL T. WUKKLEK, i 1. Voluntary intoxication does not excuse or palliate a crime, through ineanity— mania a potu or delirium tremens — may. 2. Testof Insanity — Partial Insanity.— The test of insanity is the ability to distiniraish bct'.veen right and wrong. In case of partial insanity, the question is whether the d abstract strongest jccasioned • such cir- are mucli , although ident with ds. It is He says irge given )f a moral about to probably ite use of ved upon F the law ' OP IN- y— mania istinmiish ether the CAliTEK V. STATE. The Facts of the Case, 589 prisoner was cupublc of distinguishing between riglit and wrong in the particular con- nection in whicli the unlawful act was done. Appeal from Panola. Indictment for murder of William Mills. The killing occurred in the town of Pulaski, near a grocery, on the 3rd of December, 1851. The prisoner had been drinking to excess for several days, and more or less for several weeks. On the day of the killing there were several persons in and about the grocery, drinking and playing cards. While the prisoner and one Dodson were playing cu'ds, the latter said to the other, on some trivial occasion, that he, the prisoner, did not have a soul larger than a nuistard seed. A b3'stander, who stated that he considereil it unjust, remarked to the prisoner in tiie same spirit, that if it were he, he would not take that. Thereupon the prisoner struck at Dodson, and a fight ensued between them, during Avhich Mills stood by and declared that no one should nitcrfere until one hollowed, and which ended in Dodson knockina the prisoner down with a piece of chimney timber by a blow on the head. After this, the prisoner \v:is rnntingand raving aronnd the premises, with his gun, and by his appearance and manner caused some fear that he would injure some of the i)arty, and from the testimony it seemed that two or three of the party were each apprehensive of an attack by the prisoner. At this time Mills remarked to Dodson that if he woidd give him a good whii)ping he would go home and behave himself. Mills, and his brother-in-law, Baker, loaded a gun, and Mills picked up a two pound weight and })ut it in his pocket. A shoi-t time before tlu' killing. Mills took a bowie knife which was handy, and put it in his bosom. It did not appear whether the prisoner knew of these hostile actions on the part of Mills or not. The prisoner started and went a short dis- tance down the hill from the grocery, and shot off one barrel of his gun. Deceased proposed to Dodson to go down to him ; Dodson refused to go, remarking that he might shoot. Deceased went, and as he approached the prisoner asked him whom he shot at. The prisoner replied he knew whom he would shoot. Deceased replied he would not shoot a deer ; told him he was his best friend, to put down his gun and come in, and Dodson Avould treat. Deceased kept advancing ; prisoner told him not to come any further or he would shoot, and presently did shoot and inflicted the wound which caused death. The shot appeared to have been duck shot, and some of them were flattened against the t.vo pound weight which the deceased still had in his pocket. Several of the witnesses who took up the deceased, testified that he had no weapons about his person. The prisoner was a quiet peaceable man when sober, but troublesome and quarrelsome when drunk. There was 590 DRUNKENNESS. Carter v. State. an effort to prove that the prisoner had been rendered insane by excessive drinking and the l)low on the head. There was in proof a vague remark of tlie prisoner, made soon after he was arrested, to prove an old grudge. The prisoner and the deceased had been near neighbors for a long time, and so far as everybody knew had always been friendly. The prisoner made no effort to escape. Verdict, guilty of murder in the second degree, and confinement in the penitentiary for three years. M. D. Rogers and S. M. Hyde, for appellant ; L, D. Evans, with them. The Attorney-General for the State. WlIEKI.Kl!, J. (Omitting other rulings.) The defence was tliat at the time of committing the homicide the accused was insane, occasioned by the excessi. * use of ardent spirits. The court gave instructions to the jury upon the law applicable to this defence, which were not and are not now complained of. But it has l)een insisted in oral ai'gument at the bar, that certain legal principles of which the accused should have had the benefit were omitted ; and that ui)on a proper view of the whole law upon the subject, the jury would have been warranted by the evidence in acquitting, or at least in imposing a milder punishment. We have attentively considered the charsie of the court and the evidence ; and are unable to concur with counsel in the view they have taken of the case. It is unnecessary to review the charge of the court, as there is no part of it applicable to this defence, which is complained of as erroneous. Nor is it necessary to review the evidence. It may, however, be observed that the i)nncip:il if not the only evidence in the case to support the plea of insanity is to be found in the facts and immediate circumstances attending the killing. There 'is no other evidence in the case from which the conclusion may be drawn that the accused was bereft of reason, than that which is to be found in the fact of killing under the circumstances. That was such as to afford conclusive evi- dence of malice ; but not of insanity. In a certain sense, though cer- tainly not in a legal sense, every unnecessary or unlawful homicide may be said to be an insane act. But to derive the evidence which is to acquit on the plea of insanity, from that source alone, if notequally as irrational as the act may be supposed to be, would at least be of extremely danger- ous consequences. For the more causeless, unnatural and indefensible the homicide, the more deserving of condign punishment, the more fruitful would it be in the evidence which would screen from punish- DRUNKENNESS AS A DEFENCE. 591 United States v, McGlue, approved . killing ment. It is manifest, therefore, that the absence of any known cause or apparent motive for the commission of a homicide, can never be considered evidence to support the plea of insanity. Every man is presumed to be sane until the contrary appears. Insanity is an oxc('[)tion to the general rule ; and before any man can claim the benefit of tlu; exception, he must prove that he is within it. It has been laid down as the law upon great authority and consideration, " that before a plea of insanity should be allowed, undoubted evidence should be adduced, that tlie accused was of diseased mind, and that, at the time he committed tlie act, he w:.3 not conscious of right and wrong. This opinion related to every case in which a party was charged with an illegal act, and the plea of insanity was set up. Every person was supposed to know what law was, and therefore nothing could Justify a wrong act until it was dearly proved that the party did not know right from wrong. If that was not satisfactorily proved, the accused was liable to punishment,"' It is also to be remarked that it appears from tlie evidence that the accused was perfectly conscious of what he was about to do ; and he does not appear to have even fancied that he was acting upon provoca- tion, or was constrained to act in necessary self-defence. He does not appear to have labored under any delusion ; but to have had, or believed he had, and it would seem not wholly without reason, — cause of ill-will towards the deceased for being the friend of his enemy. There does not seem, therefore, to have been an entire absence of the usual [malice] which incites to wicked, malicious, and revengeful acts. But without attempting to trace the act to the secret motive wliifh prompted it, or to find the real or any adequate cause fur its commission (which is unnecessary), it is further to be observed upon the evidence (and it is a very material fact where the plea of insanity is set up, alleged to have arisen from the cause to which it is ascribed in this case), that the accused shortly before starting out with his gun upon an avowed errand of death, indulged in such potations as were calculated in his excited state to excite to those acts of desperation, which are not unfrequently the fruits of the madness and frenzy occasioned by a sudden fit of drunkenness; and for which, when voluntary and intentional, the law makes no allowance, and admits no extenuation of crime. The judge then cites with approval the charge of the court in United States v. McGlue,^ and aflBrms the judgment. ' Wharton Am. Cr. L. 13. 2 1 Curt. C. C. 1. 592 DRUNKENNESS. Boswell'.H Case. INTOXICATION - INSANITY PRODUCED THEREBY — BURDEN PROOF — PREMEDITATION AND DELIBERATION, BosAVELL'is Case. LliO Gratt. 800.] In the Court of Appeals of Virginia, March Term, 1871 . Hon. RiciiAiii) C. L. Moxcukk, President. " Wii.i.i.vM T. Jayms, " .losi.ni CiiiiisTiAN, " WAi.i.r.ij K. Staim.ks, " FuANcif* T. Anukuson, OF Judges, Voluntary Drunkenness does not excuse n crime, but i)ermnnent insanit}', like every other kind of insanity, excuses an net which otherwise would be criminiil. 2. Burden of Proof. —The defence of insanity must be proved to the satisfaction of the jury. 3. Intoxication is relevant on tlic (|uc8tion of deliberation and premeditation. Eiiitou to the Corporation Court of Alexandria. James Boswell was indicted for the mui'der of Martha French, a col- ored girl seven years old. He was convicted of murder in the second degi'ce, and appealed. F. L. Smith & Neale, for the prisoner. The Attorne>/-General, for the Commonwealth. MONCURE, P. (After passin', ' IIoi.koyd, J. , told the jury: " Drunkenness is not insanity nor does it answer to what is termed an unsound mind, unless the derangement which it causes becomes fixed and continued by the drunkenness being habitual, and thereby ren- dering the party incapable of distinguishing between right and wrong." The American cases establish the same doctrine with the English on this subject. 5 In Pirtle v. mate the court in explaining the decision in Swan y. State^^ says: " This reasoning is alone applicable to cases of murder under our act of 1829,''' which provides that all murder committed hy means of poison, lying in wait, or any other kind of wilful, deliberate, malicious and premeditated killing, etc., shall be deemed murder in the p. 32. > See also 1 Russell on Crimes, 7 ; and i 4 Bl. Com. 2U. 3 7 C. ami P. S17, 820. * 1 Lew. C. C. 238. ^ <.) Hinnph. m:\. " 4 Humph. 13G • ch. 23. 590 DRUNKENNESS. Bosweir.s Case. first decree, and all otlier kinds of murder shall be deemed murder in the second degree. Now tK! ^ is drawing a distinction, unknown to tlie common law, solely with a view to tlie punishment; murder in the first degree being punishable with death, and mur ler in tiie second degree by imprisomnent in the penitentiary. In order to infiict the punish- ment of death, the murder must have been connnitted wilfully, deliber- ately, maliciously and premeditatcdly. This state of mind is c ..clii- sively proven when the death has been inllicted by poison or by 13'ing in wait for that pin'i)ose ; but if neither of these concomitants attend the killing, then the state of mind necessary to constitute murder in the first degree, by the wilfulness, the deliberation, the maliciousness, tlu' premeditation, if it exist, must be otherwise proven." "In all sncli cases, whatever fact is calculated to cast light u[)on the mental sldtu.^ of the offender is legitimate proof ; and among others, the fact that he Mas !it the time drunk ; not that this will excuse or mitigate the offence if it were done vvilfuUy, deliberately, maliciously and premeditatcdly (which ii might well be, though the perpetrator was drunk at the t-'nie) ; but to show that the killing did not spring from a i)reme(litated purpose." *' This distinction can never exist except between murder in the first degree and murder in the second degree under our statute." " As br- tweeu the two offences of murder in the second degree and manslaugh- ter, the drunkenness of the offender can form no legitimate matter of inquiry ; the killing being voluntary, the offence is necessarily murder in the second degree, unless the provocation, were of such a charact'r as would at common law constitute it manslaughter, and for which lus- ter offence, a drunken man is e(iually responsible as a sober one." I have quoted thus largely from this case, because it lays down the law very correctly, and is specially api)licable in this State, in which there is a hi'y very much, if not precisely like that of Tennessee, distinguishini; between murder in the first and second degrees. T!ie most material cases, English and American, bearin; upon this whole subject, ar ' collected in a note to the case' of Uniti'd States v. DreivA With this genci-al view of the law on the subject, I will now take some notice of the Instructions in detail ; and first of those asked for by tho accused. The fir it instruction asked for, was properly refused. Jt states a case of murder, and asks the court to instruct the jury that it was a case 01 voluntary manslaughter. The words at the conclusion, " provided they also believe from the evidence that there was no malicr." do not alter the case. The law implies malice from the facts stated in the former part of the instruction. The word " jualice " in thcproviso, > 6 Masou '2S; in 1 l.c;nl. (rim. (a. Il;i-lil. Sei- also 1 Wharton's Am. C. L. sects. .".2-44. URUN'KENNESS NO EXCUSE FOIl CRIME 597 This Proposition Maintained. nurder in iwu to llio u the first id degrei' e pnnish- :, dcliboi'" is c ..clu- attend tlic •der in tlic isncss, the I all such II stdtus of t lie was nl e if it wen' (wliicb ii e) ; but U) purpose." u the lu'sl I "Asb^'- lanshiugli- niattcr of y murder chanictn' which la:- ber one." ivu the law ch there is nguishin;; ; material bject, ar^' take sonic for by the fused. It ury that it onclusion, malice," stated in ha proviso, ^ects. :'.2-U. can mean only express malice, which is necessary to constitute murder ; malice express or implied, being sullicient, or if it mean malice gener- ally, then the proviHO is in conflict witli the body of the instruction, which is therefore faulty, and it was proper on tliat ground, if no other. Lo refuse to give it. The second instruction asked for was also properly refused. Drunk- enness is no excuse for crime, although such drunkenness may be, " the result of long continued and habitual drinking without any purpose to commit crime," and may have produced temporary insanity, during the existence of which the criminal act is committed. In other wcn-ds, a [)erson, whether he be an habitual drinker or not, cannot voluntarily make himself so drunk as to become, on that account, irresponsible for his conduct during such drunkenness. He may be perfectly unconsiou.s of what he does, and yet he is responsible. He may be incapable of express malice, but the law implies m.aiice in such a case from the nature of the instrument used, the absence jf provocation, and other circumstances under wliich the act is done. Public policy and public safety imperatively reciuire tliat such .'■JiouLl be the law. If permanent insanity be produced by habitual drunkenness, then like any olhci- 'iisanity, it excuses an act which would be otherwise criminal. Tiie law looks at proximate, and not remote causes in this matter. Finding the 'Accused to be perm; 'Utly insane, it in(|uires not into the cause of his insanity. In the leading case of United States v. Drew, before re- ferred to, which was a case of murder, Mr. Justice Story held the ac- cused not responsible, the act having been done uiMler an insane delusion, produced by disease brought on !)»• intemperance, called delirium tremens. " In general," said tlie ju;!^"-.- '' insanity is an excuse for the commission of every crime, because the party has not the possession of that reason which includes responsibility. An exception is, when the crime is committed by a party while in a fit of intoxication, the law not permitting a man to avail himself of the excuse of his own gross vice tuid misconduct to shelter himself from the legal consequences of such e:irae. But the crime must take place and be the immediate result of the nt of intoxication, and while it lasts ; and not, as in tliis case, a remote consequence, superinduced by the ai'tecedent exhaustion of the party arising from gross and habitual druniieuness. Had the crime been committed while Drew was in a fit of intoxication, he would have been liable to be convicted of murder. As he was not then intoxicated, but merely insane from an abstinence from liquor, he cannot be pronounced <,aiilty of the offence. The law looks to (he innnediate not the remote cause ; to the actual state of tlu' party, and not to the causes which re- 598 UKUNKKNNKSS. IJoswell's Case motely produced it." That is tlie first case in wluoh it has liecn held tliat an act otherwise ciiminal, done by a person lal)oring under tlic disease of delirium tremens, might be excusable on tlie ground of in- sanity. Without meaning to question tlie authority of that ease, and conceding it to be good law, as it may l)e, still it does not apply to this case ; for it expressly admits that "had the crime been committed while Drew was in a fit of intoxication he would have been liable to be con- victed of murder. " In this case it is riot pretended that the accused had delirium tremens, or anything like it, wiien he committed tlie ad and the instruction askt'd for expres.dy admits that tlie act was d >ne \ the accused while he was drunk, fj-'o that according to the law, as it was admitted to be in the case of United States v. Drew, such drunken- ness is no excuse. This is a sufficient reason for refusing to give the second instruction fxsked for. The latter part of that instruction em- braces another proposition, which will be noticed presently. As to the instructions which were given by the court, the first, I think, is unexceptionable. To the greater part, and all but the first t'<> or chree lines, no objection has been, or properly can be taken. To flu first part of it, which is in these words : " That every man is presumed to be sane, and to possess a sufficient degree of reason to be responsi- ble for his crimes, until the contrary is proved to their satisfaction," the accused objects. Of course he does not and cannot object to so much even of that part, as says " that every man is presumed to be sane, and to possess a sutficient degree of reason to be responsible for his crimes." He only objects to the concluding words of the sentence, '• until the contrary is proved to their satisfaction." Indeed, the ob- jection only goes to the three concluding woi'ds " to their satisfaction ; " whicli he seems to tliiiik is an excessive measure of the proof required by law to re[»el the prt'sumption of sanity. He seems to think (and that is the thought which is embodied in the latter part of the second i'.istruction asked for), that all the proof reciuired b}' law, to repel the said presum[)ti()n, was only ho much as would raise a rational doubt of his sanity at tlie time of committing the act charged against iiim. Now I tliink this is not law ; and tliat the law is correctly expounded in the first instruction given by the court. There are, certainly, several American cases which seem to sustain the view of the accused and are referred to by his counsel. But I think the decided weight of authorit}', English and American, is the other way, as the cases referred to by the attorney- general will show. In 1 Wharton's Am. Cr. L.,' the writer says: "At ' sect. 711. BURDEN OF rUOOF, 59!) The Authorities Collected. been hekl ndcr tlic ml of in- case, and ly to this ted wiiilc be con- used had : act , and le y the as it was drunkon- givc th( 3tion em- :, I think, St t'.'.J (>!• To t;, )resunicd rosi)onsi- faction," )bject to cd to bo isibie fof sentence, , the ob- iction ; ' ' required ink (and e second 'cpel the doubt of 1. Now 1 the first Lnierican ferrcd tc Enghsh ittorney- ys: "At common law the preponderance of authority is, that if the defence be insanity, it must be substantially proved as an independent fact ; " and for this he cites, Hex v. Stohe.i,'^ Rex v. Taylor,- State v. lirhn/ea.'-^ State V. Stark.'* State v. JIuting,-' State v. Starli)ig,'^'' State y. Spe)icer,~ Bonfauti v. State,^ State v. Brandon,'^ People v. 3Ii/ers.'^'^ " On the other hand," he proceeds, "it has been ruled in Massachusetts, in 1H")G, that the defence) is made out if the prisoner satisfied the Jury by a preponderance of evidence, that he is insane." And furthis he cites: Commonivealth v. Edcb/J^ Commomvealth v. Eogers.^- "And in other courts it has been held, that in this, as in all other constituents of guilt, the burthen is on the prosecution." And for this he cites. People v. McCann.^'-* Ogh^tree v. Statp,^"^ United States V. 3fc Glue, ^■' Slide v. Barflett,^'> Po'k v. Statc.^'^ IIopps v. People. '^^ See also Clinse v. People, ^'^ \n which Ilojipn v. People, is ex- plained. Now, here we have a reference to nearly all the authorities on eilher side bi'aring upon this question, and I think the fair results of them is to show that insanity, when it is relied on as a defence to a charge of crime, must be proved to the satisfaction of the juiy, to en- title the accused to be acquitted on that ground ; though such proof may be furnished by evidence introduced by the Commonwealth to sus- tain the charge, as well as by evidence introduced to sustain the defence. This result consists with r.'ason and principle. The law presumes every person sane till the contrary is proved. The Commonwealth hav- ing proved the corpu.- delicti, and that the act was done by the accused, has made out her caso. If he relies on the defence of insanity, he must prove it to the satisfaction of the jury. If, iq)on the whole evidence, they believed he was insane wl- mi he committed the act, they will acquit him on that ground. But not upon ary fanciful gjound, that though I hey believe he was then sane, yet as there may be a rational doubt of such sanity, he is therefore entitled to an acquittal. Insanity is easily fi'igned, and hard to be disproved, and public safety requires that it sliould not be established by less than satisfactory evidence. Some of the cases have gone so far us Lu place the presumption of sanity on the ' 3 C. *, K. 1S5. = 4Cox.('. C. 155. 3 5 Ala. ';U. < 1 Sti-obh. 479. ' 21 Mo. 4(U. « 0. Jones (N. C.),471. ' 21 N. J. (L.) 196. " 2 Minn. 12;i. » 8 Jones (N. C), 463. '" 20 Cal. 518. "' 7 Gray .583. '- 7 Mete. 5«). ' ■ 10 N. V. .58. » 28 Ala. 69a. '•' 1 Curt. C. C. '» 43 N. II. 224. " 19 Ind. 170. " ?.\ 111. 385. " 40 111. 358. 600 DRUNKENNESS. Hoswell's Case. k-M's-.'- ■■■" '■ same ground with the presumption of innocence, and to require the same degree of evidence to repel it. But I do not think it necessary or proper to go to that extent. • As to the second instruction given by the court, it seems to be free from any just ground of objection, except tliat I think tlie words " other causes," ought to have been omitted. If a person be incapable from othir causes than intoxication, of doing a wilful, deliberate, and premeditated act, he would seem to be incapable of murder in the second degree, or any other crime. To be sure the words " through reckless wickedness of heart," in the former jiart of the instruction, imply malice ; but it is dilHcult to see how a i)erson guilty of doing an act, through reckless wicki'dness of heart, could, at tlie same time, be i:i such condition from other causes than intoxication, as to render him incapable of doing a wilful and deliberate and premeditated act. There is, therefore, an apparent conflict between the different parts of the instruction, and at all events it was calculated to mislead the jury. The third instruction given by the court is unobjectionable and un- objected to. The fourth instruction given by the court, is objectionable on the ground taken by the counsel of the accused, that it assumes the fact that the accused threw the brick at the deceased, which ought to have been referred to the jury. The instruction ought to have stated tlie fact hj'pothetically, thus : " That if the jury believed from the evidence that the prisoner threw a brick at the deceased, which caused her death, and that at the time of so doing he was in such a condition of drunk- enness, as to render him incapable of a willful, deliberate and premedi- tated purpose, and that he did not so throw it, out of any reckless wickedness of heart or purpose, then they will find the prisoner guilty of manslaughter. " Wliether the accused threw the brick at the deceased or not, was a fair question of controversy before the jury upon the evidence. He might have thrown it at her, or he might have thrown it at the ducks in the street, or he might have thrown it at random. In either case he did an unlawful act, likely to do mischief, considering the time and place and circur.iStances under which it was done, and he was, therefore, re- sponsible for the consequences of ihe act as a crime. But the degree of such crime depended upon the intention with which the brick was 1 See also Roscoe's Cr. Kv., library addi- tion, vp. '.tOS-iHht; (>i>iiii(ins of the jiidjres r i ' )Jud(ji's. " Jonx Davis. > Where a person is insane at the time he commits a ninicler, he is not. punishable as a nmrdercr, allliougli such intiunity ho remotely occasidiicij Ity undue indulgence in 6i)iritu()us liquors. But it is otherwise, if lie be at tlie time intoxicated, and his insanity be directly caused by the immediate inlluence of such licjuors. Indictment for tlie murder of Charles L. Clark on the high season board of the American ship John Jay, of which Drew was master, and Clark was second mate. Plea, general issue. At the trial the principal facts were not contested. But the defence set up was the insanity of the prisoner at the time of committing the homicide. It appeared that for a considerable time before the fatal net. Drew had been in the habit of indulging himself in very gross and almost continual drunkenness ; that about five days before it took place, lie ordered all the liquor on board to l)e thrown overboard, which was accordingly done. He soon afterwards began to betray great restless- 602 • DRUNKENNESS. United States v. Drew. ness, uneasiness, fretfulness, and Irritability, expressed his fears that tlie crew intended to murder him ; and complained of persons, who wero unseen, talking to him, and urging him to kill Clark ; and his dread of so doing, He could not sleep, but was in almost constant motion dur- ing the day and night. The night before the act, he was more restless than usual, seemed to be in great fear, and said that whenever he laid down there were persons threatening to kill him, if he did not kill the mate, etc. In short, h'> -xhibited all tiie marked s3'mptonis of the dis- ease brought on by int*. niierance, called delirium tremens. Upon the closing of the evidence, the court asked Blake, the district attorney, if he expected to change the posture of the case. He admitted that unless upon the facts the court were of opinion that this insanity, brought on by the antecedent drunkcnnes,s, constituted no defence for the act, he could not expect success in the prosecution. After some consultation the opinion of the court was delivered as follows : — Stouy, J. — We are of opinion, that the indictment upon these ad- mitted facts cannot be maintained. The ])risoner was unquestionably insane at the time of committing the offence. And the question made at the bar is, whether insanity, whose remote cause is habitual drunken- ness, is or is not an excuse in a court of law for a homicide committed by the party, while so insane, but not at the time intoxicated or under the influence of liquor. We are clearly of opinion that insanity is a competent excuse in such a case. In general, insanity is an excuse for the commission of every ciime, because the party has not the possession of that reason wiiicli includes responsibility. An extieption is, when the crime is committed by a party while in a fit of intoxication, the law not permitting a man to avail himself of the excuse of his own gross vice and misconduct, to shelter himself from the legal consequences of such crime. Rut the crime must take pla -c and bi' the immediate re- sult of the fit of intoxication, and iclule i lasts; and not, as in this case, a remote consequence, superinduced by the antecedent exhaustion of the party arising from gross and habitual drunkenness. However criminal, iu ± moral point of view, such an indulgence is, and however justly a party may be responsible for his acts arising from it to Al- mighty God, human tribunals are generally restricted from punishing them, since thev are not the acts of a reasonable being. Had the crime been committed while Drew was in a fit of intoxication, he would have been iaible to have been convicted of murder. As he was not then in- toxicated, but merely insane from an abstinence from liquor, he cannot be pronounced guilty of the offence. The law looks to the immediate, an th( rei th( jiri su UNITKU STATK8 V. DUEW. 603 Stute V. Johnson. Pears that who wen' dread of tion dur- 3 restless er he laid t kill the f the dis- e district nion that ituted uo ition. ivered as licse ad- itiuiiably made at Irunken- mmitted )r under lity is a cuse for ssession is, wljon the law ni gross Mices of '■kite re- in this laustion [owever lowever to Al- nishing e crime d have hen in- eannot ediate, and not to the remote cause ; to the actual state of the party, and not to the causes which remotely produced it. Many species of insanity arise remotely from what, in a moral view, is a criminal neglect or fault of the party, as from religious melancholy, luidue exposure, extravagant pride, ambition, etc. Yet such insanity has always been deemed a sufRcieut excuse for any crime done under its influence. B. Davis and Basset for the prisoner. Verdict, not guilty. INTOXICATION — RtURDER IN FIRST DEGREE — DELIBERATION — TEST OF INSANITY — EVIDENCE. Statk V. floiIXSOX. [40 Conn, I'M',.] In the Supreme Court of Errors of Connecticut, April Term, 1873, Hon. Thomas Beldkn BrTUj:, Chiif Justice. Okigkn S. Skvmoi h, "^ Justi ces . " John D. P.uih, *' El.ISHA CaUI'KNTEI!, j " Lakavkttk S.Fostki!, 3 1. Murder In First Degree —Deliberation — Intoxication. — On an indictment under a statute providing tliat all murder " perpL'tratt'd Ijy any kinii of wilful, deliberate, and premeditated killing " is murder in the lirst degree, a stale of intoxication or any other fact tending to prove that the prisoner was Incapable of deliberation may be shown. 2. Test of Insanity. — To be criminally responsil)le a man must have reason enough to ho. able to judge of the character and consequences of the act committed, and nuit^t not be overcome by an irresistible inii)ulse arising from disease. 3. Whei'e insanity is shown to exist a short time betore the act, the evidence .-liould show sanity at the time or the jury should acquit. Indictment for murder in the first degree ; brought to the Superior Court in New Haven County and tried, on the plea of not guilty, before Foster and GitANGi;i:, J J. The murder chai'g(!d was that of a woman named Johanna Iless, at Meridan, in New Haven County, on the eighth day of July, 1872. By statute,^ '* all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and pre- I Gen. Stats., tit. 12, sect. 6. G04 DRUNKENNESS. State r. Johnson. incclitated killing, or Avhieh shiill be committed in perpetrating, or attempting to perpetrate, any arson, rape, robbery or burglary, shall l)e deemed murder in the first degree; and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty, ascertain in iheir verdict whether it be murder in the first degree or second degree." Another section of the statute makes murder in the first degree punishable by death, and in the second degre(> by impris- onment in the State prison for life. Ui)()n the trial the attorney for the State having offcri'd evidence to prove, and claiming to have proved, that the murder was wilful, deliberate and pnmeditated, and therefore murder in the first degree, the counsel for the prisoner offered evidence to prove that he was in- sane at the time he committed the act. And that he had been insane on previous occasions, and had a disease called dipsomania. He also offered evidence to prove, and claimed to have pi-oved, that the prisoner was intoxicated at the time, and was also suffering from a severe injury which had affected his nervous organization, and which rendered him more easily affected by intoxicating licpior. After the evidence was in, the counsel for the prisoner filed a written request that the court would give the jury the following instructions in writing: 1st. That if tho evidence shows that intoxicating liquor on previous occasions had rendered the prisoner insane, or had caused an habitual madness or fixed frenzy, and that if at the time he was laboring under a temporary insanity caused by excessive diinking, in combination with an infirm state of mind, or a previous wound or illness, which rendered ardent spirits fatal to his intellect to a degree unusual in other men, the jury should wholly acquit the prisoner. 2d. That if upon the whole evidence the jury believe that the prisoner, at the time of committing the act, was under the influence of a dis- eased mind, and was unconscious that he was committing a crime, the jury should acquit him. 3d. That if the prisoner was laboring under some controlling disease, which was an active power within him which he could not resist, then he was not responsible. 4th. That if the jury believe, that from any cause, either from personrl injuries or the use of ardent spirits, the prisoner's mind was impaired, and at the time of committing the act was, by reason of such cause, unconscious that he was committing a crime, he is not guilty of any offence what- ever. 5th. That if the jury find that the prisoner was greatly excited or affected by the use of liquor, and which produced a state of mind unfavorable to deliberation and premeditation, although not such as to render the party entirely incapable of forming a deliberate purpose, he DUUNKENNESS AS A DEFENCE 605 Instructions. rating, or laiy, shall ivliom any eh person "st degree nimler in )y impris- cvidcncc 18 wilful, t degree, e was in- 2n insane He also prisoner re injury eied him I written C'tions in quor on lused an he was long, in 3und or I dcgiee risoncr. risoner, f a dis- me, the f under 1 which if the or the at the nscious 2 wliat- Bxcitcd f mind h as to ose, he cannot be convicted of any higher crime than that of manslaughter. 6th. That the law docs not require that the insanity which absolves from crime should exist for any definite period or for any particular length of time ; but only that it should exist at the moment when the act charged was committed. 7th. That the proof of prior insanity, at any time, imposes upon the State the burden of proving the crime to have been perpetrated during a lucid interval ; and that the proof of prior insanity defeats the legal presumption of sanity, and creates a legal presumption of continued lunacy, which, like the former, must be overthrown by proof. 8th. That if the juiy have any doubt as to the case, on the question of the sanity of tlic prisoner at tlie time of the commission of the act, he should be acquitted. 9tli. That if intoxicated at the time of committing the act, he is guilty of no higher crime than that of manslaughter. 10th. That in order to con- vict of murder in the first degree, the jury must find that the accused killed the deceased with premeditation and while in the possession of a sound mind and of his reasoning faculties; and that if the jury have any doubt on this point, or on any point in the case, they are bound to give the prisoner the benefit of that doubt. The court declined to give any of the instructions so requested, but in lieu thereof charged the jury in writing, as follows: " To be a sul)- ject of punishment, an individual must be a moral agent ; must have mind and capacity, must have reason and understanding enough to enable him to judge of the nature, character and consequences of the act charged against him, that the act is wrong and criminal, and that the commission of it will properly and justly ex[)ose him to penalties. He must not be overcome by an irresistible impulse arising from disease. The law can give no full and precise definition of sanity or of insanity ; each is a question of fact, and the jury should be satisfied beyond a reasonable doubt, before convicting a man of crime, that he is of sound mind — a sono man; if insane, he slu)uld be acquitted. Every person of mature years is presumed to be competent to commit crime, and to be of sound mind. If a person cliarged with crime be shown to have been insane a short time before the commission of the act, the evidence should show sanity at the time, or the jury should ac- quit." " Drunkenness does not excuse a party from the consequences of a criminal act; one crime cannot justify another. A man com- mitting a criminal act, though intoxicated at the time, is a legal and proper subject of punishment. If a man, b}' long continued habits of intoxication, has brought on insanity, or so inq)aired and enfeebled his mind as to be utterly imbecile, he is no longer punishable for «)0«; DRUNKENNESS. State V. Johnson. crime. If upon tlie whole evidence tlie jury entertain a reasonable doubt as to the prisoner's sufficient soundness of mind to bo rcs[)on- sible for his acts, it will be their duty to give him the benefit of the doubt, and to render a verdict of acquittal." The court further charged the jury orally as follows: " Murder in the first degree is defined b}' our statute as the killing of any person by poison, }>y lying in wait, or by any other kind of wilful, deliberate, premeditated killing, or when perjjctrating the crime of robbery, rape, burglary or arson. This indictment docs not charge tlie commission of this crime, either by lying in wait, by poison, or when committing either of the other crimes named in tlio statute. The question will be for you, tnuler this indictment, to decide wliether the accused com- mitted the crime wilfully, deliberately and with premeditation. On tliis indictment the jury may bring in a verdict of guilty of murder in the first degree, or second degree, or manslaughter, or not guilty." The jury returned a verdict of guilty of murder in the first degree, and the prisoner moved for a new trial, for error in the refusal of the court to clnu'go as requested, and in the charge given. There was also a motion in error on the ground of the insufficiency of the indictment, but as the decision of the case was wholly upon the motion for a new trial, that part of the case is not stated. Hicks, for the prisoner. O. A. Fay, contra. Carpenter, J. — There being a difference in opinion on the questions arising upon the motion in error, none of those questions are now de- cided, but we confine our attention to the motion for a new trial. We tliink the charge of the court upon the subject of insanity was unexceptionable. It fully complied with the i-equests of the prisoner's counsel, so far as those requests were according to law. The language of the court differed, and very properlj' differs from the language of the requests ; but the law of the cliarge is correct, and all that the prisoner was entitled to. We arc also of the opinion that the court was not bound to charge as requested upon the subject of intoxication. If the prisoner was in fact intoxicated at the time of the homicide, that does not as a matter of law reduce the offence to manslaughter, much less does it justify the prisoner. Nor does it in point of law reduce it to murder in the second degree. There was no error, therefore, in refusing to charge according to these requests. DUUNKENNKSH. G()7 Relt'viint on Question of Deliberation. rea^onabh^ bo respon- icflt of the Murder in iny person deliberate, ory, rape, immission oinmittinjr on will be ised com- tion. On murder in ilty." it degree, sal of the afflciency upon the luestions now de- 1. nity was I'isoner's anguage ?e of the prisoner large as s in fact atter of tify the second 3ording The court charged the jury that " drunkenness docs not excuse a ])arty from the consequences of a crinainal act; one crime cannot justify another. A man committing a criminal act, though intoxicated at the time, is a legal and proper subject of i)unishiuent." This, too, as a general proposition, is correct. If that was the (July question involved in the case it would be entirely free from dilllculty. But the real question is, whether drunkenness as a fact may bo consid- ered by the jury as evidence tending to disprove an essential fact in the case, a deliberate intention to take life. We have entertained some doubts whether tliis question was made in the couit below, and so presented here as that we can properly consider it. In the first place, it does not very clearly appear that the intoxica- tion proved or claimed was of such a degree as to impair the capacity of the prisoner to form a deliberate, premeditated purpose to take life. In the next place, it does not appear that the prisoner's counsel asked tlio court to say to the jury that the intoxication was evidence tending to prove that the killing was not premeditated, and that ho could only be convicted of murder in the second degree ; but the claim was, in substance, that, intoxication, as matter of law, reduced the offence to manslaughter. In a case of less importance these considerations might have some weight and induce us to hesitate to grant a new trial ; but in a capital case we are not disposed to enforce the rules, however salutary those rules may bo in their general application, so rigidly as to hold the pris- oner to tlio consequences of a mistaken view of the law by his counsel ; especially, when the course taken on the trial was such as practically to exclude from the minds of the jury, a fact material to be considered in determining not whether a crime was committed, but the measure of guilt. The prisoner was indicted and on trial for murder in the first degree. As the homicide was not perpetrated by the means of poison, or lying in wait, or in committing or attempting to commit any of the crimes enumerated in the statute, he could only be convicted of the higher offence by showing that it was a wilful, deliberate, and premeditated killing. A deliberate intent to take life is an essential element of that offence. The existence of such an intent must be show" ^s a fact. Ira- plied malice is suflflcient at common law to make the --nee murder, and under our statute to make it murder in the second degree ; but to constitute murder in the first degree actual malice must be proved. Upon this question the state of the prisoner's mind is material. In be- half of the defence, insanity, intoxication, or any other fact which ,%, <^, s^„ -"^^ '*'. ^ "-^o. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I Ui|2j8 |2.5 |50 "^^ ■■■ 1.25 ||U |i.6 ^ 6" ► V] ^;; '/ /A Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 145*0 (716) S73-4503 iV iV ^v ^ :\ \ 6^ %0 608 DUUXKEXXESS. State r. .loliiison. tends to prove that the prisoner was incapal)le of deliberation, was competent evidence for tlie Jury to weigh. Intoxication is admissible in such cases, not as an excus^ie for crime, not in mitigation of punish- ment, but as tending to sliow that the less and not the greater offence was in fact committi'(l. I cite a few oidy of the many authorities which sustain tiiis position: Keenaa v. Commoitvealth ;^ Huberts v. People ; - I'iijmKu v. iState; •' State v. Garre;/ ; ■* Ilaile v. i^tate; '' Shcm- nalian v. Comma n weal tli : ;^ Ray's Medical Jiu'isprudence.'' As I have ahvady said, the charge of the court was in itself well enough ; but wc must consider it in its application to the case on trial, an('t in the sense in which the jury probably understood it. When they were told that " drunkeiniess does not excuse a i)arty from the conse- quences of a criminal act," it is prol>able that they did not distinguish !. ^tTcen excusing a crime and showing that the specific crime charged 'i;i'l not been committed, and when they were further told that " a man • ommitting a criminal act, though intoxicated at the time, is a legal and iH'oper sul)Ject of punishment," they undoubtedly understood the " criminal act " to mean mur-.),463. ' (5thed.),5«56. STATE V. JOHNSON. '"09 Syli.N I. . DEGREES OF MURDER - INTOXICATION - MALICE — IMPLIED M.VLICE. State v. Johnson. [41 Couii. 686]. In the Supreme Court of Errors of Connecticut, November Term, 1S74. Hon. John Ditank Park, Chief Justice. " Elisiia Cakpkntku, ] " Lakayettk S. Fosteu, , " Ja.mks PiiKM-s, >Jti»tices. " DwiuuT W. Pakdkk, j 1. Intoxication does notnecessarily disprove thu existence of malice in the commis- sion of a crimiuul act. 2. Murder in First Decree -Intoxication -Malice. - On an indictment for murder in tiio ilrst degree which by statute re-iuires the existence of actual malice, the f.ict that the prisoner was intoxicated at the time is to be considered as lending to orovo that such malice did not c.xii-t. .1. Murder in Second Dejfree - Implied Malice. - In mur.ler in the second degree which rests upcn implied iiialue, the jury may llnd the existence of malice, although the prisoner's condition at the time of the crime disproves express malice. 4. Intoxication— When relevant.— The intoxication of the prisoner is relevant in determining the prisoner's Mate of mind at the time of the act ; and in connection with proof of provocation may tend to show that the act was one of sudden passion and not of premeditation, and that therefore the homicide is manslaughler and not murder. The prisoner • was again put on trial, this time on an indictment charging him with murder in the second degree. Verdict guilty, and prisoner appealed. Ificks, for the prisoner. G. A. Ftiy, contra. Campbell, J. —The prisoner was on trial upon an indictment for murder in the second degree. His counsel requested the court to charge the jury " that if the jury find that the defend.nnt was intoxi- cated at the time of the commission of the act alleged in the indictment, and was thereby in such a condition as to be unable to form a deliber- ate and premeditated purpose to kill any person, and was at the same time unconscious of the character and consequences of his acts, pro- vided he had no deliberate or premeditated purpose to kill any person prior to his being intoxicated, then the jury cannot convict the defend- ant of any crime higher than manslaught*^-. ' ' ' See State v. Johnson, ante. 39 GIO DRUNKENNESS. State V. Johnson. Tliis request coiitcinplatcs a condition of iiiiinl and body in which it would bc^ dillicnlt to do any cnininid uct. Tlie mind would be iut'a})iil)U! of fill ininij; a et'iniinal intent, and if it was in that condition ))y reason of intoxication, tlio ph^'sical organs would ordinarily be powerless to do harm. Tho case does not show that the defence proved or chiinieil that 110 was intoxicated to any such dc passions to evil actions by the excessive use of intoxicating drink, and if he does this voluntarily, and by reason of its effect, does what thi' law punishes as a crime, the intent to drink, and the evil conse(iueiice combine and make the act a crime." The court then noticed three important qualilications of that doctrine. 1. When the intc^xication is involuntary, or jjrotluced by stratagem or fraud of another. 2. When excessive drinking long continued ri'sults in insanity or imbecility. ,'3. When the law recpiires some specillc intent, or some pjirticular state of mind, as an essential element of the offence, as express malice, in mur- der in the first degree. The jury were then told that murder in the second degree rested on implied malice, and that intoxication does not nccessiirily rebut or disprove any essential element of that crime ; that intoxication might have the effect in connection with the provocation to ri'duco the offence to manslaughter. The prisoner certainly ought not to complain of this charge. It will be noticed that the charge which his counsel claimed should have lieen given, was 011I3' intended to reduce the offence to manslaughter. For that purpose he had the benefit of whatever intoxication was proved, and in the only way in which lie could have it legitimately. A criminal intent is an essential clement of either crime. To constitute murder in the second degree, it is necessary that that intent shall be the result of malice. In manslaughter it may be the result of provocation or sudden passion. If the evidence was sufli- cient to show that it was caused b}' provocation, then it disproved the malice ; so that the condition which the prisoner was in, must have been considered by the jury with reference to the (lucstion of malice. I.VTOXICATIOV NO DKFK.Nf K. nil Does not Disprove Malii J wliicli it incapable by reason K'ss to do inu'il tliat lie motion ■ioiiK" evi- •Ili:it hi.s oxieatiiiir deceased llie time thi' facts y refused 3 general xeite ills ■ink, and what the secjuence ed three cation is 2. When lity. ,'3. slate of , ill mur- n- ill the iocs not ne; that -•ation to ught not je which o reduce Micfit of he could 3f either ary that may l)e as sufli- ved the ive been The counsel for the prisoner during the aigunient seemed to claim that intoxication was an excuse for any crime ; at least the argument logically tended to tliat conclusion, and it was claimed that thia^ court, when this case was l)efore us on a former occasion, i hud t:dcen given Ills court, ed by tlie )iild have ; what vc it present ) the con- t no man, not have luall}'^ im- The two lingiilarly s are cor- irts of an imingtoo le neces- ndard of t dejrrces which in the mode and circumstances of their perpetration iniiy involve even a high degree of Kcientillc knowledge. But subject to this (lualitication of the general trutli, the general truth itself is tliat the miuimiini of mind which can furnish the necessary mental element in crime is a far smaller (pian- tity than was claimed by the argument for the accused. The argument, rightfully assuming that there can be no murder without the mental ele- ment of malice, proceeded to claim, as lu'ing necessarily involved in malice, an amount(jf memory and reason, «hieh, I think, is not justified by the legal dimensions of that malice which enters into the constitu- tion of murder. The popular idea of malice, in its sense of revenge, hatred, and ill will, has nothing to do with the subject. A nundicr of cases might be given to show the difference between the jiopular idea, and that malice which forms a necessary part or" the legal crime of murder. The crime of infanticide i)resents the difference in a striking light. This crime is clear nuwdcr, and the mother wliu destroys her infant to conceal her own shame, has legal malice, though in point of fact she may feel no hatred towards any human being in the world, nor any indifference to human life in general, and may actually have the yearn- ings of a mother's love towards her innocent victim, loving its life just less than her own reputation. Here there is no malice, in the popular sense assumed in this argument, and yet the law says there is malice, and that the killing is murder ; and reason gives its undoubting sanc- tion to the law. The legal idea of malice in the crime of nuu'der is, simply, an intent to kill a human being, in a case where the law would neither justify nor in any degree excuse the intention, if the killing should take place as intended. I make no distinction betwi-en malice express and malice implied in this definition, for there is no difference except in the mode of arriving at tlie fact. You may prove the partic- ular intent, or you may prove the more general intc.it, which includes it, and implies it, but the thing when once you get it, is the same in both cases, and is the simple intent to kill a human being in such a case as I have stated, whether this Intent springs from hatred or a sense of shame, or from the mere frenzy of drunkenness, it is malice, it is the mental constituent of murder, unless there is something to justify the intent or in some degree to excuse it. Now the kind of a case in which this intent happens to be formed, obviously has nothing to do with the quantum of mind involved in its formation. Whoever thi-n has mind enough to form the simple intention to kill a human being, has mmd enough to have malice, and to furnish the mental constitiients of mur- der. And even this nuantutii of mind, snuill as it is, is to be viewed and CM DIU'NKKNNESS. Jones V. Stall*. invcstifiMlc'd in tlic li^lit of tin important rulo of fvidonce, applicable to all nu'U aliki', and founded on reason and necessity. It i.s, that all men arc presmued to intend the natural and proxiniati; cou.seiiucnces of their actions. Wlien a man kills anotlier by the use of means appro- priate to that end, he is presumed, drunl< or sol)er, to have intcndetl that end. This is but a i)resuniption, but it nnist prevail until It is rebutted by other facts and circumstances, showing tliat the end was not intended, but was accidental. It cannot l)e rebutted by the mere vague opinions of witnesses that the man had 'mio uiind," or "didn't seem to know he was doing wrong" The result is, then, that any man, sober or drunk, sane or insane, has mind enough to furnish the mental element in murder, •when he has enough to form the intention to kill a human l)eing; and he shall be presumed to have formed that intention, wlien- cver he has 'lone the act of killing by tiie use of a|)propriate means, unless there are circumstances to show that death was an accidental and not an inti'uded conse(iuence of his act. This doctrine, faithfully en- forced, offers no escape to tlie drunken man, from punishment for the crimes which he connnits, and fen* those not committed by him, he ouglit not to be i)unislu'd. I'nder this doctrine, if it were the whole law ap- plicable to his case, even the poor idiot could •' scarcely be saved." But it is not the whole law applicable to his case. And this brings me to a consideration of tiie great perversions which have been made of the doctrine that drunkenness is no excuse foi crime. The foundation stone of these perversions, not distinctly shaped in the argument, l)ut unconsciously assumed in it, is a feeling or notion that the exemption of insane persons and 3'oung children from criminal responsibilit}' is not th>' result of positive law excusing them, but is the simple consequence of their mental deficiency, which is supposed to be so complete as not to be capable of furnishing the mental element of crime ; while the drunken man, with the same actual mental deficiencj-, is held resi)onsible for his actions, not because they are crimes havinu the mental and pliysical element of crime, but b}' virtue of a certain de- structive capacity infused into him, from reasons of policy, by the law which declares that drunkenness shall be no excuse for crime. The re- verse of all this is the true philosophy of the law. The law deals with all of these classes of people, as having a sufficient quantum of mind to have bad passions and evil intentions, and carelessness in their actions, and so to furnish the mental element of crime, but as laboring also un- der an inferiority of reason, wliich serves to betray them into these evil intentions and carelessness, and at the same time breaks down this power DKl NKKNNKNS (ANNOT i:.\( INK ( IM.MK. r.i5 liut niuy hhow that no Clinic wusConmiitteil, tipplioablc i.s, that all lucnct's of Ills uppro- ! intended butted by iiilended, e opinions II to know sobtT or III clonient. :i liiinmn on, w!ien- ite int'aiis, U'lituI siiid lifiilly eu- iit for the , lie oii<'lii le law ap- ; saved." ms •which X'use for y shaped or notion criminal )ut is the ed to be einent of fieiency. s having rtain de- y the law 'I'hc n- cals with niiiid to actions. also nii- lese evil IS power of resisting temptation. The law comes in then, and excuses the young and the insane, out of tendi'rness towards an inlirniity wliifh is iiivohm- tary, and at the same time, to guard against the possibility that men might make the same excuse whenever there is tl:e same inlirmity of reason, the law takes special care to exeliuh- druiikin men fn^iii the ex- cuse, liecause their inlinnity is voluntai v. The result is that the young and tlu' involuntary insane occupy a platform of their own by virtue of an exception made in their favor, while the voluntary insanity of drunkenness, being excluded from the exception, stands just as if no exception had been made, and the drunk man and sober man occui)y the .same great platfoiin of responsibil- ity for the crimes which they commit, and for no others. When their actions have the criminal mental element unit«'d with them, tl'ey become crimes, but ii(>t tUlV'cn. The crimes of drunk men, like those of sober men. are actual crimes, not constructive ones — whole crimes, not pieces of crimes. And drunkenness, like all other things which are not made excu.ses liy posi- tive law, is no excuse for crime, but is like all the rest, a fact which ought to be used whenever it can, as it often may df), to shed light upon ciUii-r branch of the alleged crime, the ph3'sical or rnontal, in investi- gating Avhat crime, or whether an}' crime has been committed. The arguineiit might safely be U'ft wiiere it now stands, l)iit I prefer to trace the fallacies which have been founded on a sound principle through the two s[)ecial forms in which they have presenti'd themselves. One is this: Drunkenness is no excuse for crime, therefore drunken- ness cannot be used for any purpose of defence in a criminal accusa- tion. A non-seqnitur if ever there was one. Ignorance of chemistry is no more an excuse for crime than drunkenness ; therefore, if the rea- soning be good, ignorance of chemistry can not be used for any jjiirpose of defence in a criminal accusation. If Dr. Webster, on his celebrated trial at Boston some years ago for the nnirder of Dr. Parkman, could have shown that he was ignorant of chemistry, he could have shown conclusively, not that he had an excuse for the murder, but that lie did not commit it ; for the .slayer, Avhoever he was, had carried the dead body through a process of destruction, involving high chemical knowl- edge. No doubt the court would have allowed him to save his life by proving his ignorance of chemistry, although ignorance of chemistry was no excuse for crime. Suppose now, the Doctor could have proved that he had been drunk to the point of stupor or 7M'«?i/a ^>>/», during the lime when that chemical process must have been performed. No doubt the court would have allowed him to do so, not to excuse, miti- 616 DKl'NKKNNKSS. JoneH V. State. gate, or cxtoniinto liin crimo, bnt simply to show in a vory satisfactory way tliat lie liad not conimittod tlic crimo; for it is exceedingly im- l)rol)al)le tluit a man in timt degree of drunkenness could luive conducted tlie chemical process. And Dr. Webster would luive bei'u allowed to save his life by |)r()ving that he was drunk. S(mie years »KNCK OF DKUNKKNNKSS. 017 May Sliow that Act was Innocent. tisfactory lingly iin- oiidiK'tod llowcd to tlie slow •Gilt iiiuc- ilinr way, crookinc: 10 end in nd is still echanical lit villai^c m, could boon too idcnce if iliow the \('stigat- m of tlio .MPcused m of his r the law B. This It of the and re- law nor I with a n's form th sober •n done jober or to leave against ike any i inves- that it i where in that lit, but 8 most etween the purposes for which drunkenness may be used ? It is too apparent to need argument, that when the act is shown, the mental constituent of the crime still remains to l)o investigated, and in this investigation there can be no rational discrimination made between the light which may be shed upon it l)y drunkenness, and that which may be sht'd l)y any other fact in the world. Let me illustrate this branch of the investigation. The fact of being a skilful physician is no more an excuse for crinu; than drunkenness is, and, therefore, if tlie reasoning in the last form of the fallacy be good, the fact of bi-ing a skilful pliysician. ought not to l)e used for the purpose of showing with what intention an act was done. A man indicts another for an attempt to poison him, and proves that the accused actually administered arsenic to him. Here the act is done, and the sole (juestion is as to the intent with which it was done. The accuse<1 simply shows that he was a skilful physician, and this single fact, in connection with other facta that the man did not die, but got well, ex- plains the whole case, and shows that the act was done with an innocent and praiseworthy intention ; for if a skilful physician should intend to kill by arsenic, he would infallibly regulate the dose to kill and not to cure. And here the man is i)ermitted " to ex(Mise " his act in the lan- guage of the fallac}', by proving his own superior knowledge, a fact which of all others, is surely the last which ought to be allowed to ex- cuse any crime. Is it not plain, that he does not use the fact " to ex- cuse his act," but simply to show that the act was an innocent one which needed no excuse? Shall not drunkenness lie used for the same p*irpose when it can shed the same light? A skilful marksman shoots at a bird, at a short distance, 1)ut misses the bird and kills a man who was behind the bush, and who turns out to be one with whom the marksman had a deadly feud. He is indicted for murder The fact that a man so skilful with his gun should have missed the bird at so short a distance, and should have hit his enemy, makes a strong impression that the shooting at the bird was but a pretense to cover the real intention to slay his enemy. But the man shows that he was very drunk, a fact which renders it at once very probable that he should have missed the bird, and very improbable that he had sufficient capacity for so deep an artifice as the one imputed to him, for drunk men are much more apt to be the victims than the perpetrators of tricks. Is there in the world an enlightened Christian, or a barbarian, who will say that this man ought not to be allowed to save his life b}' proving that he was di'unk? The fact has no effect to excuse his crime nor to excuse his act, but to show that his act thfnigh an unfortunate one, was inno- cent and needed no excuse ; or else to show that it was not an act of l!ui<;litpr, in the pursuitof a law- ful intonl witliDiit due caiitioii and circuinspcetion. On tlie ({iiestion of murder, liis drnnki'nncss is in iiis favor, but on tlu' (lucstion of rarcless- nossin the pursuit of his lawfid intent, it is against iiitn ; for carelessness is nuich more easily believed of a drunken man llian of n sober man. His drunkeiuiess saves him from the one charge and convicts him per- haps of the otiur, not by excusing the one crime, nor aggravating (he other, but simply by shecMing the light of truth upon both. Apply these principU's to the case before us. Osltornc with one hand seizes Jones by the arm, and with theotherby the throat and pushes him back. Jones stabs Osborne and kills him. Jones is indicted for nnirdi-r. Ilis defence is that the killing was but tiu! repelling of an assaidt and bat- tery, which reduces it to manslaughter at all events, and will rdso reduce it to justifialile homicide, if the jury should think ho had reasonable fear that Osborne would choke him to death. The State replies that though siu.'h an assault and battery occurred, the killing was not pro- duced by it, and was but tlu' execution of an intent formed and in progress of execution l>efore the assaidt and battery occured. Right liLi <• hangs the case, the defence maintaining that the intent to kill was pro- duced by the i)rovocation, and the Slate mainttiining that it existed before. What is the evidence to support the view of tiie State? Jones was walking up to Osborne with a knife in his hand, and he was very drunk. Here his drunkenness is against him. for it is easier to be- lieve that a reckless drunk man intends to kill without provocation, than that a thoughtfid sol»cr man has such an intention. This is the whole case made by the circumstances of the fatal rencontre to show that Jones had an intention to kill before he received the provocation. But the State wisely chose not to rest the ca«c there, and the strongest evi- dence on the point is light rellected from a previous rencontre, in which Jones had much more clearly manifested the intent to kid. The argu- ment was, that having hsid the intention in the first rencontre, he must be i)resumod to h ve persisted and continued in the same state of mind, up to the time of the second rencontre, a ver^- short time afterwards. The interval between the two rencontres is n(}t definitely stated, but it was sufficiently long for J(Mies to be put out of the house and come back again, and be the interval long or short the whole force of the argument lies in his pn-sumed persistence and continuance in the same state of mind from the first rencontre to the second, and right here his deep drunkenness was evidence in his favor, tending to rebut the presumi^tioii of such a persistence or continuance in the same state of mind. Who needs to be told that drunkenness ma}' almost destroy memory for the UKLEVANT ON gilSTION OF I'lJOVOCATlON. GID |)i>(> not .Mitigate Criiiit'. it of a law- [uostion of f rurcless- iri'lcssnoss obcr man. 8 liiiii piT- vatiiif^ the 1. Apply iiid seizt'H liim hack. JiT. His I; and bat- Iso rcduct' :':isonal)lo plies til at I not pro- 1 and ill tight hcie was pro- I existed ? Jones I lie was ier to be- on, than he whole l»ow that n. But gest evi- in which lie argii- he must >f mind, s. The t it was Tie back •gumeiit state of is deep unptioii Who for the time, making it as a mere .s/c/v, letting events aiiri9oner, and refused: " That before the jury can find the prisonci- guilty of mirder in tlie first degree they nuist ascertain as a matter of fact that the accused was in such a state of mind as to do the act of killing wilfully, deliberately, premeditated ly and maliciousl}', and an} fact that will shed light upon the condition of his mind, at the time of the killing, may be looked into by them, and constitute legitimate proof for their consideration; and among other facts any state of dnuikenness being proven, it is a legitimate subject of Inquiry as to what influence such intoxication might hjt ,'e had upon the mind of the prisoner in the perpetration of the deed, and whether he was not, at the time of the killing, in such a state of mind, by reason of Intoxication, as would be unfavorable to the commission of a crime requiring delib- eration and premeditation." The court gave the following instruction on this branch of the case: "•The jury are further instructed that if the circumstances attending the killing, the weapon used, the nature and extent of the injury inflicted, and the amount of violence used, with all the other evidence in the case, satisfy them that Cross intended to kill McDonald, then the circumstance of his being drunk at the time is not sufficient to repel the inference of malice and premeditation arising out of such evidence, or to mitigate the offence from murder in the first degree to murder in the second degree, or any ethci- less offence." The old and well established maxim of the common law is thot drunkenness does not mitigate a crime in an}' respect ; on the contrary, that it rather is an aggravation. Insanity is a full and complete defence to a criminal charge ; yet drunkenness is a species of insanity, and is attended with a temporary loss of reason and power of self-control. But drunkenness is voluntary ; it is brought about by the act of the l)arty, whilst insanity is an infliction of Providence, for which the party affected is not responsible. This is understood to be the basis of the distinction which the law has made between these two kinds of dementia, and is the principal reason why the rules of law have been settled so as to allow the one madness to constitute an exemption from legal respon- sibility, but deny to the other any mitigating qualities whatever. There are also obvious reasons of public policy why the law should be so es- tablished. DRUNKENNESS NO DEFENCE. 621 The Cases Reviewed. icanso the when ihc oiinsel for e pnsonei- matter of tlie act of ) and an} t tlie time legitimate state of liry as to k1 of the ot, at the )xication, ing delib- struction d that if iture and st'd, with ended to le time is n arising J tlie first •e." ' is thflt sontrar}-, defence \', and is •control, t of the lie party s of the ed so as respoii- Therc e so es- Some efforts have been made, of comparativel)- recent date — for the maxim we li:ive (juoted is as old as the common law itself — to (nuilify or to get rid of this ancient rule. Some very authoritative books on criminal law and some courts of great respcctalnlity, both in England and this country, have suggested interpretations and modifications of the axiom, tending, as we think, to subvert the principle itself for all practical purposes. Russell, in his work on Crimes, says: "Though voluntary drunkenness cannot excuse from the commission of a crime, yet when, as upon a charge of murder, the material question is, whether an act was premeditated or done only with sudden heat and impulse, the fact of the party being intoxicated has been h olden to be a circumstance proper to be taken into consideration." The authority for this sugges- tion of Russell is the ease of Bex v. Grindle>/, decided at the Worces- ter assizes in 181!) ; but in Iie.v v. Carroll,^ Paukk, B., in the presence of LiTTLEDALE, J., Said : " That case was not law." In this country the subject is very ably discussed ])v Judge Ti i;i,f.y, of the Supreme Court of Tennessee, in the case of Pirtle v. Slate,- and by Judge Wakdlaw, of South Carolina, in the case of State V. McCantH.^ The authorities on both sides of the question are pretty generally referred to and reviewed in each of these cases, yet the results to which the two courts arrived were quite the opposite of each other. It is true the Supreme Court of Tennessee declare their maintenance of the ancient doctrine of the common law in all its original severity, and repudiate quite distinctly the case of Eex v. Orindley, and the dktum of Russell, based thereon ; but by a process of ingenious reasoning the court seem to arrive at a conclusion indi- rectly overturning the principles and rules they start out with, main- taining and leading practically to the doctrine advanced hj Russell and the decision of Justice Hoi.no'i-D in Rex v. Grindley. It is not perceived how drunkenness can be held to be a circumstance proper to be con- sidered by a Jury in determining the question of premeditation and malice, and at the same time be considered as no mitigation of the crime. It is said that there is no inconsistenc}- in the two doctrines, because the fact of drunkenness may show that the crime charged was not committed. If the crime charged was not committed, then it is immaterial whether the defendant was drunk or sol)er; he is, in either event, entitled tc an acquittal. But if all the circumstances in the case, except drunkenness, show that the crime charged was committed, and ! 7 C. & p. 14.5. 9 Humph. 6t::', » 1 Spear, 392. u22 DRUNKENNESS. State V. Cross. drunkenness alone is the cireurastanee to show that by reason of its in- tei'vention among the circumstances of the case, the crime was different from what it would have been in the absence of this circumstance, then it is manifest that this circumstance alone has produced the mitigation, and the old principle of the conmion law which pronounces drunken- ness to be no mitigation is overturned. In the case of Pirtle it is concedi'd in the opinion that, except in re- lation to the two grades of homicide distinguished in their code as they are in ours as murder in the first and second degrees, drunkenness would not be a legitimate subject of inquiry ; that upon the question of provocation it sliould have no weight, but on the question of premedi- tation, it should. It is singular tliat in Hex v. Thomas,^ a British judge, Baron Pakkk, took quite the opposite position. He is reported to have said to the jury: " I must also tell you that if a man makes himself voluntarily drunk, this is no excuse for any crime he may com- mit when he is so; he must take the consequences of his own vohintary act, or most crimes would go unpunislied. But dru'ikenness m;iy be taken into consideration in cases wlien wliat tlie law deems sufficient provocation has been given, because the question is, in such cases, wliether the fatal act is to be attributed to the passion of anger excited by the previous provocation, and that passion is more easily excitable in a person when in a state of intoxication than when he is sober." The Supreme Court of South Carolina, in commenting on this charge of Baron Pakkk, admit its propriety, if it is to be understood as maintain- ing that he who is in a state of voluntary intoxication is subject to the same rule of conduct and the same legal influences as the sober man, and that when a provocation is received which, if acted on instantly, would mitigate the offences of a sober man, and the question in the case of the di^inken man is, whether that provocation was in truth acted upon, evidence of intoxication may be considered in deciding that question. But the remarks of Baron Pauke, thus construed, would clearly be unfavorable to the defence, and would substantially make intoxication an aggravation rather than a mitigation. The case put by Judge Tlki.ky to illustrate his views, and probably as strong a case as could be imagined, is where the crime charged is murder by poison, and the question is, whether the poison was admin- istered intentionally or by mistake. The facts supposed are that two medicines are on the table — the one poison and the other not — and 1 7C. &P. 817. DRUNKENNESS DOES NOT PALLIATE CHIME. ^^^23 state V. Cross. then the poison is administered. The inquiry made is, whether the faot that the man who administered the poison was drunk, is not evidence to show the probability of mistake. The answer is very easy if we adhere to the doctrine that drunkenness does not palliate or mitigate a crime. A mistake or accident may happen to a man, whether drunk or sober, and if they are more likely to occur when in the former predicament, he is not ciititled to any advantage over the sober man by reason of this. If he is, the maxim of the common law is worth'oss, or is so easily evaded as to furnish no practical guide in the adminislnitiou of justice ; there is one rule for the sober man .and another for the drunken man. According to our understanding of the law, the instruction asked l)y the defendant in this ca-^e was properly refuse.l ; such instrnctions, we think, would subvert ancient and well settled princii)les, and proclaim viitual impunity to the most enormous crimes. It wonld only be nec- essary for a man to dethrone his reason by intoxicating drafts re- duce himself to a state of brutal insensibility to the value of human life, and then take shelter under the plea of drunkenness for protection against the consequences of his acts. If a man can thus divest himself of his responsibility as a rational creature and then perpetrate deeds of violence with a consciousness that his actions are to be jndged l)y the irr.ational condition to which he has voluntarily reduced himself, society would not be safe. To look for deliberation and forethought in a man maddened by intoxication is vain, for drunkenness has deprived him of the deliberating faculties to a greater or less extent ; and if this depri- vation is to relieve him of all responsibility or to diminish it, the great majority of crimes committed will go unpunished. This, however, is not the doctrine of the common law ; and to its maxims, based as they obviously are upon true wisdom and sound policy, we must adhere. The instruction given by the Circuit Court was, in my opinion, sub- stantially correct. It might, and perhaps ought to be so modified as to inclnde, among the circumstances specifically alluded to, some of those favorable to the prisoner in connection with those already stated of an unfavorable bearing, such as the previous relations of the parties, the previous and subsequent conversations, etc. The judgment will be reversed and the cause remanded. Richardson. J., dissented. 624 DRUNKENNESS. People V. Uogcrs. INTOXICATION — RELEVANT ON QUESTION OF PREMEDITATION, ETC. — INSANITY RESULTING FROM DRUNKENNESS. People v. Rogers. [18N. Y. 9.] In the Court of Appeals of New York, September Term, 1858. Hon. Alexander S. Joiinsox, Chief Judge, " Geouge F, Comstock, " Samuel L. Seldex, " IIlHAM Den'io, " James J. Roosevelt, \ Judges. " Ika Harris, " Daniel Pratt, '» TiiERON R. Strong, 1. Voluntary Intoxication is no excuse for crime. Intoxication— Relevant upon Deliberation and Heat of Passion.— Where the crime was committed nftcr prurocation, evidence of intoxication is admissible on the ques- tion whether it was done in tlie heat of passion, and wliether threatening words were uttered by the prisoner with deliberate purpose or otherwise. 3. Insanity Besultingr from Intoxication.— Insanity resulting from habits of intemper- ance, and not directly from the immediate influence of intoxicating liquors, may amount to a defence to crime. Writ of Error to the Supreme Court of the First District to review a judgment of that court in favor of James Rogers, the present defend- ant in error. Rogers was indicted in the Court of General Sessions of the Peace of the city and county of New York, for tlie murder of John Swanston, in that citj', on the 17th of October, 1857. Tlie trial took place in that court on the 12th November of .that year, before A. D. Russell, city judge. It appeared that Swanston, the deceased, and his wife were returning from market about ten o'clock in the evening, when they were met by tlie -prisoner and two other young men, with whom they were unacquainted, at the corner of Twenty-first Street and the Tenth Avenue. The prisoner rudely ran against the wife of the deceased, pushing her upon her husband. According to the testimony' of the wife, the pris- oner, at the time, asked the deceased what he was saying, and the latter answered, " What is that to you? " One of the prisoner's companions said to him: " They are not talking to you." At this time the three had passed the deceased and his wife. They then turned about and came back towards the deceased, who turned his head towards them, I'KOl'LE V. UOGEIiS. r»2:) Facts of the Case. ATION, '.858. re tho crime II the ques- words were f intemper- luors, may o review ; defend- Peace of iiston, ill in th:it KLL, city ife were lej' were icy were Avenue. ling her tlie pris- le latter panions le three out and s tiiem, and the prisoner, who had been taken hold of by the other two, broke from them, came up to the deceased, stabbed him in the breast, and then ran up the avenue. The wound was about three inches dcej). and penetrated the artery of the heart, and the deceased died imme- iliately. The weapon was not found. Tlie surgeon testified that the wound appeared to have been made by a sharp instrument, which he judged was a large dirk-knife. Other evidence upon that point tended to show that sh(jrtly before, and on the same evening, the prisoner had in his pocket a jack-knife. The prosecution proved the 'prisoner's con- fession that it was a common pocket-knife, and that he had thrown it away when he heard that the man he had struck was dead; and his mother and sister swore that he carried a small pocket-knife, with two blades, and they did not know of his iiaving an}' otiier knife. The comnanions of the prisoner and another person, all called by the prose- cution, gave testimony as to the circumstances of tlie iK^nicide ; one, a man who lived near the spot, saw the affair from his window. He saw the motion of the prisoner as though striking the deceased, who went a few steps and then fell. He saw no other striking. The two young men who were with the prisoner agreed in testifying that the affair com- menced by tlie ]irisoner running, or, as one of them said, staggering, against the deceased's wife ; and they united in saying that tlie deceased then struck at the prisoner without hitting him. One of tliein said that they, the two witnesses, then took the piisoner away, but he broke from them, came to the deceased and struck tlie fatal blow; the other repre- sented that there were mutual and successive blows between the de- ceased and the prisoner after they had let the prisoner go, and that the latter said he wanted to fight. They both swore that the prisoner hatl drank beer with them twice during the evening ; that he was intoxi- cated, and that they were trying to get him home. The prisoner went to the house of his mother, which was his home, immediately after tlie homicide ; and she and his sister testified that he was then so much in- toxicated th*\t he could not walk, but fell upon the floor, and that tiiey had to undress him and put him to bed. The testimony as to intoxica- tion was given without any objection on the part of the public prosecu- tor, and a portion of it on his examination. Two exceptions were taken to rulings of the judge upon the recep- tion of testimony. The first arose as follows : The prosecution proved, by a boy of the name of Scott, that a few minutes before the homicide the prisoner and his two companions passed by where the witness was standing in the door of a house eating an apple. The prisoner asked him for the apple, and then tried to get something out of his pocket, 40 626 DUUNKEXNESS. People V. Rogers. and the witness saw that he had a Jaek-knife. There was an objection to this evidence by the prisoner's counsel as immaterial, but the objec- tion was overruled, and the counsel excepted. The confession of the l)risoner, wliit-h has been mentioned, respecting the knife, was proved by a New York policeman, who h:id him in custody and who brought him from New Brunswick in New Jersey, where he received liim from a constable at the jail, to New York, without process. The admission in substance was that he, the prisoner, was di'uiik, and killed the deceased with a common pocket-knife. The objection to this testimony conceded in terms that no inducement had been held out to the i»risoner, but it assumed that no admission made by an accused person, when under arrest, could be used against him. The pi'isoner's counsel excepted to the decision overruling tiie objection. The bill of exceptions states that there Avas other testimony on the part of the defendant not set forth in it. In the charge to the jury, the judge stated the definition of murder and of the first and third degrees of manslaughter as con- tained in the Revised Statutes, with some remarks upon the law of the case. lie stated that if the prisoner had tin i to think, and did intend to kill, it was murder, though he conceived the intent but on the instant before the blow was struck ; but if tliey were satisfied that the mortal blow was struck in the heat of passion, without a design to effect death, the offence would be manslaughter in the third degree. There is a general cxcei)tion to the charge. The remainder of tlie bill of excep- tions, ui)on which the most material of the questions in the case arise, is as follows: "The counsel for the prisoner requested the court to charge that, if it appeared by the evidence that the condition of the prisoner from intoxication was such as to show that there was no inten- tion or motive, by reason of drunkenness, to commit the crime of miu-- der, that the jury should find a verdict of manslaughter. But the court refused to instruct the jury in the words of the proposition, but charged that, under the old law, intoxication wav .on aggravation of crime; but that intoxication never excused ciIu . .oU;": it was of the degree to deprive the offender of his reasoning cr. ;iiries; to which re- fusal to charge, the prisoner's counsel excepted " The jury returned a verdict of guilty of murdei", ami tlie court sen- tenced the prisoner to be executed. A writ of error was allowed, with a stay of execution. The record, with the bill of exceptions, was returned to the Supreme Court, where, after argument, the judgment of the sessions was reversed and a new trial awarded, upon which the present writ of error was brought on be- half of the People. PEOPLE V. ROGERS. 627 AUinissibillty of Coufi-sslon. John Graham, for the plaintiffs in error. E. W. Andreics, for the defendant in error. Dexu), J. — I do not perceive that there was any valid ol>jection to the testimony of the witness Scott. The surgeon had testified that tlie injury of which the deceased died was an incised wound. The ol)Ject of the prosecution was to show that it was inllicted by the defendant, and to that end it was prcjved that he struck the deceased immediately before he fell dead ; but the witness who testified to this, did not see any weapon. If it could be shown that the i)risoner had a knife or other similar weapon about his person at the time, such proof wouhl consider- ably advance the case of the prosecution ; and it was this fact which Scott swore to. He saw the handle of a knife in the i)risoner's posses- sion, as the latter attempted to draw it from his pocket, while on his way to the place where the homicide took place, and only a few minutes before that time. The objection to the testimony of the policeman assumes tliat no admission by a person accused of crime to an oflicer who has him in custody can be roi 'ived. It was not pretended that any threats, prom- ises or other induninents to make a confession had been held out to the prisoner, but the objection was placed distinctly upon the ground first mentioned. I have looked carefully into all the cases referred to by the defendant's counsel, in support of that position, and many others and do not find that it has ever been held tliat the single fact of the prisoner being in custody was sufHcient to exclude his declarations, whether made to the oflicer or to third persons. On the contrary, many of the cases, upon the competency of confessions, show that the prisoner was in custody at the time, and the question generally has been whether the confession was voluntary, or was influenced by what was said to him by the officer or by others. In Ward v. People,^ the prisoner made an admission while in the custody of a constable ; and a question having arisen, whether it ought not to be excluded in consequence of promises of impunity, held out by the prosecutor before the arrest, the court held it admissible, and it was received. Commonwealth v. Mosler,^ was likewise the case of a confession made by a prisoner while in the cus- tody of a constable, and the point made by the defendant was, that a caution should have been given, such as is required from examining magistrates ; but the court held it unnecessary, and decided that the evidence was competent. Hex v. Richards,^ was also the case of an admission made to a constable while hc>lding the prisoner in custody, 1 3 Ilili. 395. ■•I 4 Pa. St. 264. 3 5 0. & P., 318. 628 nnUNKEXNESS. IV'oplc r. Rogers. whifli was held to be competent, ii«) inducement having been held out at the time. It is very plain tliat tliis exception cannot be sustained. The principal exception to the Judu^e's charge wliich is now relied on, relates to the consideration which should be given to the i)roof that the j)risonerwa3 intoxicati'd at the time of the homicide. Ti\e commission of crime is so (^ftcn the attendant upon and the consequence of drunk- ciujcss, that wo siiould natur:illy expect the law concerning it to bo well dellned. Accordingly we find it laid down as early as the reign of Edward VI., l')IH, that " if a person that is drunk kills another, this shall be felony, and he shall be hanged for it ; and 3'et he did it through iirnorance, for when lie was drunk he had no understanding nor memorv ; but inasmuch as that ignorance was occasioned by his own act and folly, and he might have avoided it, he shall not be i)rivileged thereby." ' The same doctrine is laid down by Coke in the Institutes, where he calls a, drunkard voluntarious lUvmon, and declares that ''whatever hurt or ill he docth, his driuikenness dotli aggravate it." - So in his reports it is stated that "although he who is drunk is for the time ?*ou (om^ios mentis, yet his drunkenness does not extenuate his act or offence, nor .'urn to his avail; but it is a great offence in itself, and therefore aggravates his offence, and doth not derogate from the act which he did i the laics of England such a person shall have no privilege l\v his voluntarily 1 Plowden, li). - 3 Coke, 40. 3 Beverley's Case, 4 Co, 125 a. ♦ Uule 5. DRrNKKNNESS. (121) The Kni^lish ("asus Ueviowcd. but contracted madness, but sliall have the same judgment as if he were in his right senses." He states two execplions to tlie nde, one wlicre the intoxication is witliout fault on iiis part, as where it is caused by drugs administered by an unskilful physician, and the other, where inchd- gence in habits of intemprrance has produce*' permanent mental dis- ease, which he calls '■'fixed frenzy." ' Coming .lown to uiore modern limes, we lind the principle insisted upon by the enlightened Sir William Blackstone. "The law of England," he says, " considering how easy it is to contract this excuse, and how weak an excuse it is (though real), will not suffer any man thus to privilege one crime by anotlier." - A few recent cases in the English courts will show the consistency with which the rule has been followed down to our own times. In Barrow's Case, •"' the prisoner was indicted for rape, and urged that he was in liquor. IIolhoyd, J., addressed the jury as follows : " It is a maxim in the law if a man gets himself intoxicated, he is answerable to the conse- quences, and is not excusable on account of an}' crime he may commit when infuriated by liquor, provided he was previously in .i lit state of reason to know right from wrong. If, indeed, tlie infuriated state at which he arrives should continue and become a lasting malady, then he is not answerable." A similar charge was given to the jury in the next ease in the same book, where drunkenness was urged upon the trial of an indictment for burglary. Patrick Carroll was tried in LSoo, at the Central Criminal Court, before a judge of the King's Bench, and a judge of the Common Pleas, for the murder of Elizabeth Browning. It appeared that shortly before the homicide the prisoner was very drunk. His counsel, though he admitted that drunkenness could not excuse from the commission of the crime, yet submitted that in a charge for murder, the material question being whether the act was premeditated or done with only sudden heat and impulse, the fact of the party being intoxi- cated, was a proper circumstance to be taken into consideration, and he referred to a case before IIolkoyb, J.,'' where that doctrine was laid down. Pakke, J., in summing up, said: " Iliglily as I respect that late excellent judge, I differ from him, and my brother Littlkuale (the associate) agrees with me. He once acted on that case, but afterwards retracted his opinion, and there is no doubt that that case is not law. i think that there would be no safety for human life if it were considered as law." The prisoner was convicted and executed. ^ It would be easy to multiply citations of modern cases upon this doctrine ; but it is 1 1 Hale, 32. 5 4 Com. 26. 3 Lewln C. C. 75, A. D. 1823. * Reported in 2 Russ. on Crimes, 8 (Bex «'. Grindley). !• 7 C. * P. 145. I).')!) DIMNKKNNKSs. I'f(>lili' ('. KouiTs, unnciesaary, us ihcy jill ii^rcc ii|)()n tho nmin proposition, iiiuncly, that mental iilit'iuition procUicod by driiikiiifj; iiit<)xi(Mtin«5 liiiiKji- fiiinishcs no iinniuiiity for crime. Hex v. Meakin,^ and Rex v. ThoiuoN,^ may he mciiliotied ; and in tliia country, United Slates v. Dreir,'-^ and United iSl( I ten \. MeG'lue,'^ will he found to maintain the principle upon the authority of Judge Stouy and Judge Ciktis, of the Supreme Court of the United States. These last two cases are interesting, not only for stating the general principle, but for conlirniing the distinction laid down so long ago by Sir Matthew IIai.e, that where mental disease, or as he terms it, a "■ fixed frenzy," is shown to be the result of drunken- ness, it is entitled to the same consideration as insanity arising from any Other cause. The first of them was a case of delirium tre)nen,s, and Judge Stoky directed an acipiittal on that account. In the other the evidence left it doubtful whether the furious madness e|fliil)itcd by the prisoner was the result of the present intoxication, or of delirium super- vening upon long habits of indulgence. This state of the evidence led Judge CuKTis to state the rule and exception with great force and clearness. In this State the cases of the People v. Ilammill and the People V. Robinsun, reported in the second volume of Judge Pakkku's reports •'' show the consistencj' with which the doctrine has been adhered to in our criminal courts and in the Supreme Court. The opinion in the last case contains a reference to several authorities to the same effect in the other States of tiie Union. Where a principle in law is found to be well established by a series of authentic precedents, and es- pecially where, as in this case, there is no conflict of authority, it is unnecessary for the judges to vindicate its wisdom or policy. It will, moreover, occur to every mind that such a principle is absolutel}' essen- tial to the protection of life and property. In the forum of conscience there is no doubt considerable difference between a murder deliberately planned and executed b}' a person of unclouded intellect, and the reck- less taking of life by one infuriated by intoxication ; but human laws are based upon considerations of policy, and look rather to the maintenance of personal security and social order, than to an accurate discrimination as to the moral qualities of individual conduct. But there is, in truth, no injustice in holding a person responsible for liis acts committed in a state of voluntary intoxication. It is a duty which every one owes to his fellow-men and to society, to say nothing of more solemn obligations, to preserve, so far as it lies in his own power, the inestimable gift of » 7 O. * P. 297. 2 7 C. & p. 817. 3 5 Mason, 28. * 1 Curtis C. 0. 1. ^ pp. 223, 23S. i)i:rMvi:NNEis.s. 031 V»'li. II K'flcvant on Crimlniil Trial. rea?>()ii. If it is piTverteil or destroyt'd hy fixed tlisoase, lhoii<;li brouf^flit on by his own vices, the law holds him not accountalile. But if by a voluntary act he temporarily casts off the restraints of reason and con- science, no wrong is done him if he is considered answerable for any in- jury which in that state he may do to others or to societj'. Ik'f(jre proceeding to examine the judge's charge, it is necessary to state one other principle connected with the subject of intoxication. I am of the opinion tli t, in cases of homicide, the fact that the accused was under the intlrer.je of liiiuor, may be given in evidence in his l)e- half. The effect vhich the evidence ougiit to iiave upon the verdict will depend upon the other circumstances of the case. Thus, in Hex v. Car- roll, which was a case of murder by stabbing, there was not, as the court considered, any provocation on the part of the deceased, and it was held that the circumstance that the prisoner was intoxicated was not at all ma- terial to be considered. Rex v. 3Ie|)lt! I'. l{»li,'l'IV opinion that it woiilil never be corroft to excliuU! the proof altogether. 'J'liiit it woiihl sometimes be right to advise the jnr}' tliat it ouglit to have no inlliu'nce upon tlie case, is, I think clear from the foregoing author- ities. In a case of lengtiiened premeditation, of lying in wait, or where tlie death was by poisoning, or in the case of wanton killing without any provocation, sucii an instruction would plainly be proper. Assun»ing the foregoing positions to be established, I proceed to an examination of the exceptions to the charge of the judge. It is difll- cult to know i)re('iscly wiiat was meant by the request to charge ; but I think its sense may be expressed thus — that drunkenness might exist to such a digrec that neither an intention to commit munler, nor a motive for such an act, could be imputed to the prisoner. It was, therefore, asked that it siiould be left to the jury to determine whether such a de- gree of intoxication had been shown, and that they should bo instructed that if it had, the prisoner should be found guilty of manslaughter only. We must lay out of view, as inapplicable, the case of a person who had become insensible from intoxication, and was performing an act unac- companied by volition. There was notliiiiu in the evidence to show that the prisoner's conduct was not entircl}- under the control of his will, or which would render it possible for the jury to find that he did not in- tend to stab the deceased with his knife. 'I'ho mind and will were no doubt more or less per%erted by intoxication, but there was no evidence tending to show that they were annihilated or suspended. Assuming, therefore, that the request did not refer to such a hypothesis, the only other i)ossible meaning is, that it supposes that the jury might legally find that the prisoner was so much intoxicated that he could not be guilty of murder, for the want of the requisite intention and motive ; and the request was that they might be so instructed. This would be pre- cisely the same thing as advising them that they might acquit of murder on account of the i)risoner's intoxication, if they thought it suflicient in degree. It has been shown that this would be opposed to a well estab- lished principle of law. The judge was not at liberty so to charge, and the exception to his refusal cannot be sustained. What he did charge on the subject of intoxication was more favorable to the prisoner than he had a right to claim. It implies that if he was so far intoxicated as to be deprived of his reasoning faculties, it was an excuse for the crime of murder ; or, as perhaps it was intended to state, that he could not be guilty of murder. The rule which I have endeavored to explain assumes that one may be convicted of murder or any other crime, though his mind be reduced by drunkenness to a condition which would have called for an acquittal, if the obliquity of mind had arisen from any other I'KOI'I.i: V. \HHiVMS. (;.3n ('(iiiriirriii^ n|)lnliiii of Harris, J. Itogcther. It to have g autlior- or where thout any ced to an It is diffl- ;e ; but I t exist to a motive horcforc, ith a de- lis truftcd Iter only, who had act unac- ihow that s will, or d not in- were nn evidence Sliming, tlie only t legally n(jt hv ive ; and be prc- mun'or cient in 11 ostab- •ge, and 1 charge 'than he ed as to Mime of not be explain though Id have ly other causf. Till' jiKigc uuglit ti) have charged that if a man makes himself voluntarily drunk, thai is no excuse for any crime he may commit while he is so, and that he must take the consequences of his own voluntary act.' Till' charge, therefore, gave the prisoner the chance of an aeijuittal, to which he was not entitled ; l>ut tliis was not an error of which he can take advautagi'. The jiidgiiieiit of the Court of Sessions was reversed by the Supreme Court on the ground, as it appears from the opinion, that tlie judge altogether withdrew the attention of the jury from the considera- tion of the fact that the prisoner was intoxicated. I do not so under- stand the chaige ; all the evidence which was offered to show the prisoner's condition in that resped, was I'cceived wiihouL objertion. Thejmlge refused to charge that it would entitle him to be acquitted of murder, whatever the jury might think of its degree. Upon the ques- tion whether it could be taken into con^/idcration to explain or charac- terize his acts, nothing appears to have been said either bv the counsel or the judge. It does not appear whether the whole charge is given, or only sui'h parts as were excepted to. As I do not find any error in the portions which are set forth, 1 am of the opinion that the judgment of the Sessions ought not to have been reversed on the ground that it is not sufllciently full in other respects. Under the act of 18o5, courts of error arc to order a new trial when they are satisfied that a conviction for murder is against evidence or law, or that justice reipures another trial.- In the exercise of this jurisdiction, I have examined this case with the attention wliich its im- portance to the prisoner and to the public merits. It satisfactorily ap- peared that the prisoner, without any provocation on the part of the dc(!eased, who was a stranger to him, came upon hira and stabtied him to the heart with a knife. The jur}' have found, and upon sufflcient evi- dence, as I think, that the prisoner intended to kill the deceased. The case is within the principle of People v. Clark and People v. Snl- livan.'^ Independently of the question of intoxication, already disposed of, the evidence disclosed a clear case of murder. The judgment of the Supreme Court ought to be reversed, and the proceedings remitted to that court, with . •^ 3 SeH. 385, 396. 034 DRUNKENNESS. Pc'OpU' V. llOglTS. termined by the jury was, whetluT the erinio was inurdor or inan- slaii<>htcr. Upon the law applicable to this question, the juiy were properly instructed. They were told that if there was an intent to kill, even though that intent was conceived but the instant before the fatal blow was struck, the vriine was murder. But if, on the other hand, the blow was struck in the heat of passion, without a design to effect death, the crime was manslaughter. The charge was unobjectionable. The dis- tinction between the crime of murder and that of manslaughter was sutliciently stated. The jury were matle to know that it was their duty to convict the defendant of the one offence or the other, according as they should llnd upon the question of intent. If they should find that there was an intent to kill, they were to pi'onounce the defendant guilty of murder. If they should find an absence of such intent, the}' were to convict of manslaughter only. But there was evidence to show that, when he struck the deadly blow, the defendant ,vas intoxicated ; and the court was asked to charge U;^ jury that, "if it appeared by the evidence that the condition of the prisoner from intoxication was such as to show that there was no inten- tion or motive by reason of drunkenness, to commit the '•rime of murder, the}' should convict him of manslaughter." The court refused so to charge, but, ui)on this point, instructed the jury '' that intoxica- tion never excused crime, unless it was of such a degree a^ to deprive the offender of his reasoning faculties." In the proposition, as; it was thus given to the jur}', there was no error. No rule is more familiar than that intoxicaticm is never an excuse fur crime. There is no judge who has been engaged in the administration of criminal law, who has not had occasion to assert it. p]ven where intent is a necessary ingredient in the crime charged, so long as the offender is callable of conceiving a design, lie will be presumed, in the absence of proof to the contrary, to have intended the natural conse- quences of his own act. Thus, ii' a man, without nrovocation, shoot another or cleave him down with an ax, no degree of intoxication, sh(nt or that which shows that he was at the time utterl}' incapable of acting from motive, will shield him from conviction. This wng, in substance, the doctrine which the jury received from the court iii this case. The defendant had struck a blow with a deadly weapon, which had resulted in immediate death. To this act, the law, without further proof, imputed guilt}' design. If the perpetrator would escape the conse- quences of an act thus committed, it was incumbent on him to show, either that he was incapable of entertaining such a purpose, or that the li r Of man- e properly ) kill, evt'ii fatal blow 1, the blow death, the The dis- £-hter was theii- duty ;ording as I find that lant guilty y were to id\y blow, hargo i^,j on of tile no inteii- "rime of •t refused intoxioa- deprive no error, ccuse foi- listration 'u wliere ti(m of Di.sifiii. act was committed under provocation. Jn respect to tlie latter, there was nothing said by tin; court, n(n- any request to charge. Had it been contended that the blow was struck in the heat of passion, it mighf. then have been proi)er to instruct the juiy that, in determining this question, the intoxicatitm of the defendant might well be considered. No such ground appears to have been taken by the counsel for the defence. There was, indeed, some testimony tending to show th:it the defendant had been struck before he committed the act for wliicli he was tried. But the weight of the testimony is clearly against this theory of the case. It was no doubt judicious, therefore, for the defendant's counsel to refrain from asking the court to cliarge that the intoxication of the defendant might be considered by the jury in determining whether the blow was sti-uck in the heat of passion, or with premeditated design. Had such a request l)een made, I think it would have been the duty^of the court so to charge ; though from the state of the testimony, it is not likely that the result would have been favorable to the defendant. The Supreme Court seem to have understood that, in all cases where without it, the law would impute to the act a criminal intent, drunken- ness may be availalde to disprove such intent. I am not aware that such a doctrine has before l)een asserted. It is certainly unsound. The adjudications upon the question, both in England and in this country, are very numerous, and are characterized by ^singular uniformity of language and doctrine. They all agree that, where the act of killing is unequivocal and unprovoked, the fact that it was committed while the l)eri)etrator was intoxicated cannot be allowed to affect the legal charac- ter of the . xiie. But when the circumstances are such as to raise the (lucstion whether the act was the result of design or impulse of sudden liassion, the intoxicatif)n of the accused is a [ji-oper subject of consid- eration. " Drunkenness," says Paiuvk, B., in li,'. v. Thomas,^ "may i)e taken into consideration in cases where what the law deems sulHcient provocation has been given, l)ecause the question is, in such cases, wliether the fatal act is to be attributed to the passion of anger, excited liy the previous provocation and that passion is more easily excitable in a person when in a state of intoxication than when he is sober." Again, in i^cT; v. J/ea/cm,2 Ai.or.ijsox, B.,says: " With regard to the intention, drunkenness may, perhaps, be adverted to according to the nature of the instrument used. If a man use a stick, you would not infer a malicious intent so strongly against him, if drunk wlien he made an intemperate use of it, as you would if he had used a different kind C. & p. 817. » 7 CAP. 297. (;;)i; DULNKENNES.S. IVople V. UojiLi's. of wt'tipou ; but, where a (huigerous weapon is used, which, if used, must pHnluee grievous bodily hiirni, driuilvenncss can have no effect on the consideration of the malicious intent." This subject has been well considered by the Court of Appeals in South Carolina, in the State \. McCantsA In pronouncing the judg- ment of the court, Wauulaw, J., after referring to the hinguago of Pakkk, B., in Rex v. Thomati, above cited, and what is said on the sub- ject in Russell on Crimes,- says: " To th's doctrine I subscribe, under- standing l)y it that he who is in a state of voluntary intoxication shall be subject to the same rule of conduct, and the same legal influences, as the sober man, but that where a provocation has ])een received, which, if acted upon instantly, would mitigate the offence of a sober man, and the question in the case of a drtinken man is, whether that provocation was in truth acted upon, evidence of intoxication may bo considered in deciding that question. The law infers malice against the drunkard who, in his frenzy, shoots into a crowd and kills, he knows not who, no less than against a sober man for like conduct. And it wouUl be jeopardizing the peace and safety of society to say that he who, by half a dozen glasses, is habitually rendered irritable and fierce, shall be looked upon with more indulgence, when he has barbarously resented a trivial affront, because he had taken the quantity of licjuor requisite to make him a savage." So in Kelly v. .State,^ the defendant had been indicted for murder in killing his slave. It was proved that when the act was committed he was drunk. The counsel for the defendant had asked the court to instruct the jury that they might take the evidence of intoxication into consideration as a proof, more or less strong, according to their view of the circumstances, of the absence of that pre- meditated design re(iuired as an indispensable ingredient of murder. The court declined so to charge. In reviewing the case upon error, the Court of Appeals, in Mississippi, say: "The fact of the party being intoxicated has, indeed, been holden to be a circumstance proper to be taken into consideration, where the sole question is, whether an act wtis premeditated or done with only sudden heat or impulse." In Pennsylvania, Tennessee, and some other States, the crime of mur- der is classified by statute into two degrees. When the killing is " wilful, deliberate, malicious and premeditated," it is murder in the first degree. All other kinds of murder are declared to be murder in the second degree. Where this distinction prevails, it has been held th| del ncl lial tli[ ur qui 1 1 Speers, 384. " 1). 6. 3 Sm. A M. 518. DIUJXKENNE.SS. t* .) — Caiuiot Reduce Ivilliui? to Mansliiu^lilcr. ieh, if used, no effect on f Appeals in iig the judg- languago of i on the sub- ribe, under- ieation shall i influences, n received, ! of a sober iietber that ion may be lice against s, he knows ^'t. And it hat he who, fierce, shall ily resented or requisite it liad been t when the .'ndant had e evidence ss strong, •f that pre- >f murder, error, the ^rty being oper to be an act w:is Qe of mur- killing is mrder in )e murder been held that the influence of intoxication may be consiilered by the jury in detcrniuiiiig whether there had been that deliberation and premeditation necessary to constitute the ciime of murder in the first degree. But it has been repeatedly said, when asserting this ride, that it Ts confined to the question whether the crime is murder in tiie first or second degree under the statute. In such a case, deliberation as well as design is a question of fact to be determined by the jury.' In the case now l>efore us, there was no attempt to show that the act of killing was committed under the impulse of sudden passion. All that the court was requested to do, was, to instruct the jury that if they were satisfied that, by reason of the intoxication, there was no intention or motive to commit the crime of murder, tiicy should convict the defendant of manslaughter only. In refusing so to charge, there was no error. If, l^y this request, the counsel for the dclcndau't meant, :is the recpiest seems to have been interpreted by the Supreme Court, that the jury should be instructed to take into consideration the intoxi- cation of the defendant in determining the intent with which the homi- cide was committed, the proposition is not law. It has never yet been lield, that the crime of murder can be reduced to manslaughter bv sliowing that the per[)etrator was drunk, when the same offence, if committed by a sol)er man, would be murder. If, on the other hand, it w\a3 intended that the court should instruct the jury tliat if, by rea- son of intoxication, the defendant was so far deprived of his senses as to be incapable of entertaining a purpose, or acting from design, the jury were so instructed. This was enough, unless the counsel for the defendant desired to have the jury decide whether the act was not com- Jiiitted in the heat of passion. In that case, his proposition, must have been very differently framed. Ui)on the whole case, I am satisfied that no error has been committed by the court, and no injustice done the defendant. The judgment of the Supreme Court, should, therefore, be reversed, and that of the Sessions atlirmed. Judgment of the Supreme Court reversed and that of the General Sessions affirmed. ' Swan V. State, 4 Humph., 136; Pirtle v. State, 9 Id. 670; Uaile r. state, 1 Id. 154. •18. 638 DUUNKENXESS. Jones V. Commonwealth. INTOXICATION — DEGliEES OF MURDER. Jones v. Commonwealth. [75 Pa. St. 40;5.] In the Supreme Court of Pennsylvania^ 1874. Hon. Daniki. AdNKW, Chief Justice << GkOUOE SHAUSWOOl), IIknuy \V. Williams, Ul.YSSES Mkkci'r, " Isaac (J. Goudon, " Edwaui) M. Paxson, " WaUHKN J. WOODWAKD, Intoxication is no oxcuse for crime; but if it deprives tlie reason of power to think an(f weigh the nature of the act committed, it may prevent a conviction for murder in the flrbt degree. Error to the Court of Oyer and Terminer of Luzerne County. William S. Jones was indicted for the murder of Frances Hughes, and convicted of murder in the first degree. A new trial heing allowed, he pleaded guilty, and the judge sentenced him as for murder in the first degree. AoNEW, C. J. — In this case if we confine our attention to the weapon, its previous preparation, the threat proved by Mr. Crooks, the timo for deliberation, and the circumstances of the killing of JNIrs. Hughes by the prisoner, we might conclude that his crime was murder in the first degree. In this aspect the learned judge of the Oyer and Terminer had sufficient evidence to justify his finding of the degree. But ample time for reflection may exist, and a prisoner may seem to act in his right mind and from a conscious purpose ; and 3'et causes may affect his intellect preventing reflection and hurrying onward his unhinged mind to rash and inconsiderate resolutions, incompatible with the deliberation and premeditation defining murder in the first degree. When the evi- dence convin .;es us of the inability of the prisoner to think, reflect and weigh the nature of his act, we must hesitate before we pronounce upon the degree of his offence. That reasonable doubt which intervenes to pre- vent a fair and honest mind from being satisfied that a deliberate ami premeditated puri)ose to take life existed, should throw its weight into the scale to forbid the sentence of death. Intoxication is no excuse for crime ; yet when it so clouds the intellect as to deprive it of the MUUUKU IN tup: I'lUST DKGKEE. G3!) Elements of this Crime. !r to think anff murder in the unty. is Hughes, ig allowed. rder in the le weapon, le timj for lughes by in the first Terminer But ample 11 his right affect his igod mind 'liberation 'n the evi- etlect and ince upon les to pre- icrate and I'ight into 10 excuse it of the power to tliink and weigh the nature of the act committed, it may pre. vent a conviction of murder in the first degree. The intent to take life, with a full and conscious knowledge of the purpose to do so, is the dis- tinguishing criterion of murder in the first degree; and this conscious- ness of the purposes of the heart is defined by the words deliberately and premeditatedly. Much has been said upon the meaning of these words; some of which may mislead, if we do not consider well the cases in which it has been uttered. In Commonwealth v. O'llara, tried in 1797, Chief Justice McKkan said: "What is the meaning of the words deliberately and premeditatedly? The first implies s°me degree of reflection. The party nuist have time to fiame the design. The time was very short, — it cannot be said to be done coolly. The Legislature must have put a different construction on tlie words delib- erately and premeditatedly. If he had time to think, then he had time to think he would kill. If you are of opinion he did it deliberately, with intention to kill, it is murder in the first degree. If he had time to think, and did intend to kill, for a minute, as well as an hour or day, it is sufficient." The correctness of this charge to the jury will not be doubted if we examine the circumstances, and yet this is essential to understand it properly. O'llara was a journeyman shoemaker, sitting on his bench at work with Ilaskins and others. Aitkins, the deceased, his friend, came upstairs, and said to him : " I have been talking about you belowthis hour." " Yes," said Ilaskins, " about the five sheep you stole." Thereupon O 'Ilara immediately left his work upon the bench, took up a shoemaker's knife by his side, went up to Aitkins and stabbed him in the belly. The act was not thoughtless, for the prisoner had time to lay down his work, take ui) the knife, rise and walk up to his friend, and to strike him in a vital part. Upon every principle of human action, we must conclude under these circumstances, that O 'Ilara in- tended to take Aitkins' Hfe, otherwise the thoughts of man never can he determhied from clear and distinct acts evidencing the pm-poses of the mind. There was an irritation, it is true, heightened by tlie pre- viously existing story about the sheep ; but it was without any just cause of provocation to take life, and therefore, evidenced a heart malignant, and ready to execute a vengeance even upon a friend, in a moment of wicked passion. In such a case, a moment Avas suflicient to form and deliberate upon the purpose to take life, and premeditate the means of executing it. But these words of the Chief Justice are sometimes wrested from their application and applied to cases where reason has been torn up by the roots, and judgment jostled from her throne. 640 DUL'NKENXKSS. Jones V. C'oiiiinonwealth. m: Another case often quotevl and misapplied is that of Richard Smith, tried l)efore President Rrsii in 18 IG. Sniitli iiad become intimate with llie wife of Capt. Carson, and had a dilliculty with him in liis own house. He returned with Mrs. Carson and went witli her into the parlor. Carson came up unarmed, and ordered him to leave. Smith had armed himself, and held one hand under his surtout, and the other in his breast. Carson told Smith he had come to take i)eaceable possession of his own house, and the latter nuist go. Smith said to Mrs. Carson, "Ann, shall I go." She replied, " No." Smith moved into the corner of the room, Carson following him and telling him he must go, at the same time let- ting his arms fall by his side, and saying he had no weapon. Upon this, Smith drew a pistol from luider his surtout, and shot Carson through the head, threw down his pistol and ran down stairs. In this state of the facts, Judge Rush, charging upon the subject of deliberation, said : "The truth is, in the nature of the thing, no time is fixed by the law, or can be fixed for the deliberation required to constitute the crime of murder." Speaking then of premeditation, he says: "It is equally true, both in fact and from experience, that no time is too short for a wicked man to frame in his mind the scheme of murder, and to contrive the means of accomplishing it." We cannot doubt the correctness of these remarks in the case in which they were made, but cases often arise, when this readiness of intent to take life, when imputed, may do great injustice. Hence it was said in Drum's Case : ^ " This expression (of Judge Ri'sii) must be qualified, lest it mislead. It is true that such is the swiftness of human thought, no time is so short in which a wicked man may not form a design to kill, and frame the means of executing his purpose ; yet this suddenness is opposed to premeditation, and a jury must be well convinced upon the evidence that there was time to deliberate and premeditate. The law regards, and the jury must find the actual in- tent, that is to say, the fully formed pur[)ose to kill, with so much time for deliberation and premeditation as to convince them that this purpose is not tlie iiinnediate offspring of rashness and impetuous temper, and that the mind has become fully conscious of its own design. If there be time to frame in the mind fully and consciously the intention to kill, and to select the weapon or means of death, and to think and know before- hand, though the time be short, the use to be made of it then there is time to deliberate and premeditate." This was said in the case of a sudden affray, when the circumstances made it a serious question whether the act was premeditated, or was the result of sudden and rash resentment. ' r.-i I'a. SI. ic. DUUXKENNEtSS. 041 lleh'vaut on QiU'stion of Dcjircc of C'rinio. hard Smith, itimate with in his own ) the parlor. I luul armed n liis breast. 1 of his own "Ann, sliall )f tlie room, ine time let- Upon this, 5on through this state of ation, said : by the law, he crime of '> is equally I short for a to contrive rroctness of cases often ed, may do expression le that such h a wicked executing , and a jury ) deliberate e actual in- ch time for l)urpose is r, and that f there be to kill, and ow before- then there case of a question 1 and rash Thus we must perceive, that at the bottom of all that has l)een said on the subject of murder in the first dcureo, is the frame of mind in which the deadly blow is <>iven, tiiat state of mind which enables the prisont'r either to know and bo fully conscious of his own i)urposo and act, or not to know. AVhy is insanity a defence to homicide? Bccau.-e it is a condition of the mind which renders it incapable of reasoning and judging correctly of its own impulses, and of determining whether the impulse should l)e followed or resisted. Intelligence is not the only criterion, for it often exists in the madman in high degree, making him shrewd, watchful, and capable of determining his purpose, and select- ing the means of its accomplishment. "Want of intelligence, therefore, is not the only defect to moderate the degree of offence ; but with intel- ligence there may l)e an absence of power to determine properly the true nature and character of the act, its effect upon the suliject and the true responsibility of the actor ; a power necessary to control the impulses of the mind and prevent the execution of the thought which possesses it. In other words, it is the absence of that self-determining power, which in a sane mind renders it conscious of the real nature of its own purpose, and capable of resisting wrong impulses. When this self-governing power is wanting, whether it is caused by insanity, gross intoxication, or other controlling influence, it cannot be said truthfully' that the mind is fully conscious of its own purposes, and deliberates or premeditates in the sense of the act describing murder in the first degree. We must, however, distinguish this defective frame of mind from that wickedness of heart which drives the murderer on to the commission of his crime, reckless of consequences. Evil passions do often seem to tear up rea- son by the root, and urge on to murder with heedless rage. But they :ire the outpourings of a wicked nature, not of an unsound or disabled mind. It becomes, therefore, necessary to inquire upon the evidence in this case, whether the prisoner was really able to deliberate and pre- meditate the homicide. William S. Jones had been upon bad terms with his wife. She had become too intimate with another Jones, called Charley. William S. Jones failing to break off the association, got to drinking hard, and finally, after another quarrel with his wife, on the 10th of June, 1871, attempted suicide by taking a large quantity of laudanum. Dr. Davis found him lying on a lounge partly insensible, eyes nearly closed, pupils contracted and face discolored by congestion. Energetic remedies were used and he was so far restored as to be out of danger ; but the effects of the laudanum remained. From this time until the night of the 19th of June, when he took the life of Mrs. Hughes, his mother-in- 41 642 I)Iji:nken\ess. Joni's »). Coiiiinoiiwcalth. law, he was in a constant state of nervous excitement, continued drinkinfj, and had buttles of laudanum about his person, ]\rany witnesses de- scribe him as without sense, constantly tall\ing nonsense, wild in appearance, and incoherent in speech. Some sa}' he acted like a man drinking liard, was iiitoxicated, and once fell from a horse. Otliers de- scribed him as looking crazy, talking to himself, his hands going, his head thrown back, walking to and fro, throwing his head about, swing- ing his arms, and wild, nervous, and excited. lie would jump upon a chair and begin to preacli, and run off upon Charley Jones and his wife ; said he was going to build to a tavern on tlie mountain, and a church beside it ; claimed all the property' about, and was evidently much out of the way. Tliese appearances were particularly noticed on the 19lh day of June, the day of the homicide, lie was then on very bad terms with his wife, 3'et seeking her and remonstrating Avith her, and on the afternoon of that day, he had beaten and abused her, chasing lier down stairs, and into the street, and then striking and kicking her until sep- arated by others. He continued in this condition down into the night of the 19th, when he came to ]\Irs. Hughes' house, between nine and ten o'clock. Stepping inside of the door, he asked Mrs. Hughes if the fuss was settled; said he had comedown to settle it. She rose and told him to go awa}' ; told Lizzie to fetch a poker; said she would strike him if he did not go away. He stepped back. She picked up a stool, and told him if he did not go away she would level him with it. He said, " I'll level you now," pulled out a pistol, stepped forward and shot her. Mrs. Hughes twice exclaimed, " I am shot." and went back into the kitchen ; while Jones was seized by the persons present, and the pistol wrested from his hand. Between him and Mrs. Hughes there had been a state of good feeling before he took tlie laudanum, and she attended him upon the day when he was under its influence. He spoke of her as his best friend. His conduct towards his wife, her daughter, had led Mrs. Hughes to resent it, and some feeling had arisen on tiie part of Jones; but after his arrest, he said he took the pistol to kill his wife, and the old woman had got it. Looking then at the state of Jones* mind from the 10th until the 19th of June, and down to the very moment he fired the pistol, and also at the suddenness of his quarrel, her call for the poker and lifting tlie stool, it seems to us a matter of grave doubt, whether his frame of mind was such that he Avas capable either of deliberation or premeditation. It seems to have been i-ather the sudden impulse of a disordered brain, weakened by potations of laudanum and spirits, and of a distorted mind, led away from reason and judgment by dwelling upon the con- DKUN'KEWESS — DfUJREES OF MIHDER. ()'4;{ Swan V. State, (I (Irinkiiifr, tnesses de- !, wild in like a man Otliors de- going, his •lit, swing- np upon a 1 his wife ; I a church much out n the 19th bad terms lid on the her down until sep- ' the night nine and ;lic3 if the i rose and he would eked up a n with it. ■ward and vent back ■sent, and jhes there I, and she He spoki' daughter, 3n on the ol to kill the 19th id also at ftiug the e of mind ?ditation. ed brain, distorted the con- duct of his wife, influenced by his continued state of excitement It presented a case of the preparation of a weapon, and an undefined pur- pose of violence to some one, where the time for reflection was ample • but where the frame of mind was wanting, which would enable the prisoner to be fully conscious of his purpose, or the resolve to take the life of the deceased, with deliberation and i)remeditation. Yet it was clearly murder, done without sufficient provocation and without neces- sity, and in a frame of mind evincing recklessness, and that common- law malice, which distinguishes murder from manslaughter. There was error, therefore, in ascertaining the degree and sentencing to death. DRUNKENNESS -DEGREES OF MURDER. Swan v. State. [4 Humph. 130.] In the Supreme Court of Tennessee, July, 1843. Hon. Nathan Grrex, on. iNATIIAN (iRREX, "j " William B. Rkksk, \ Judges. " WiLLIA.M B. TUBLKY. -' On the question of the degree of a murder evidence of the drunkenness of the prisoner is relevant. ^ The prisoner, was indicted for the murder of Samuel G. Moore, and convicted and sentenced to be hanged. He appealed. Jarningan, for the prisoner. The Attorney-General for the State. Reese, J., delivered the opinion of the court. * ******* *■**» » With regard to the charge of the court the record informs us as fol- lows : — "The court, it was admitted on all sides, charged the law cor- rectly, with one exception, to wit : counsel for defendant requested the judge to state to the jury, that if the defendant was drunk at the time he inflicted the wound, it would reduce the crime from murder in the first degree to murder in the second degree. But the court stated to the jury that drunkenness was no excuse or justification for any crime, and then read the act of Assembly to the jury, and left it to them to say, in (\U I)Klnki:nnk8.s. Swan t^. Stiitf. the event they should (liul the (h'foiuhint guilty of murder in the first 1 Rus.-^. on Cr. DKLNKENXESS — DEUliEEili OF MLUDKU. (Ilo rirtio V. State 1 the first uiustancc I like nil ess if iminler loss is no F the gen- l and un- hy none ['red to in Y make of leccssit}-, (Ininken- )i' crime, o depend the time, of fact, t for eon- s, wiiat is orniation ictsiiring ^, it may »y ardent IS inatle- aet pro- dilation? }renee to ideration 'Tie, but punishes uired by ditation, li mental !r cause, lie crime ly law, it ohintary when — in act is premeditated, of done only with sudden heat and imptdsc, the fact of the party being intoxicated has been held to be a circumstance i)ropert() be taken into consideration." And in Pennsylvania upon a statute similar to ours,' it has been held that " (b-unkenness does not incaiiaci- tate a man from forming a premeditated design of murder, but, as drunkenness clouds the understaiubng and excites passion, it may be evidence of passion only, and of want of malice and design." But the bill of exceptions informs us that the charge of tiie court was in all re- spects unquestionable except as to the point stated. We are, there- fore, to suppose that the court, when charging upon the nature and character of murder in the first degree, did charge whatever was proper upon the subject we have been discussing; upon the whole, then we have felt it to be our duty to allirm the judgment in this case. DRUNKENNESS— DEGREES OF MURDER - PREMEDITATION— DELIB- ERATION — MANSLAUGHTER. PiRTLE V. State. [y Humph. (K;.^.] In the Supreme Court of Tennessee, April Term, 1849. IIou. N.\TII.\.V Grkex, ^ " WiLLi.v.M B. Ti ui.F.v, ( Judges. " Robert,!. McKiNNEY. j Brunkenness — Relevant on Deliberation and Premeditation. — Drunkt'iines.s works no luitigiitiou of the graiJe of tlic guilt of any one who hits committed a criminal offence ; yet in a case where under the act of 182!), ch. 23, sec. 3, there must be a deliberate and premeditated killing to constitute murder in the first degree, proof of drunkenness is admissible, because it may show that the party accused was incapable, by reason of the state of his mind, of forming a deliberate and premeditated design to take life. As between the offences of murder in the second degree and manslaughter, the drunk- enness of the offender can form no legitimate subject of imiuiry ; the killing voluntary, the offence is necessarily murder in the second degree, unless the provocation were such as to reduce the offence to manslaughter. This is an indictment against Pirtle, in the Circuit Court of Madison County, for the commission of murder in the first degree by stabbing. The defendant was tried by a jury and umler the charge of the i)resid- ' Pennsylvania I'. RIcFall, Add. 237. r>4i; DIM'SKENNKSS. I'lrtli- V. Sliilr iiifjf jmluje (Rkak), lie wiis found i^iiilty, mid llic jiidj^iufiit rendered ngj)iii!st liini. lie aiipetiled. M. liniwn and ToKi'd, fur the plaintiff in error. Till' Attonieif-Gencntl, for the Stale. Ti iM.KV, J., delivered the opinion of the court. The prisoner wiis convicted of the crime of murder in the second de- dcj^ree at the Auijrust term, 1H|H, of the Cireiiit Court of Madison; upon the trial it was jiroved thiit he was intoxicated, from the use of ardent spirits, at the time he committed the offence, and in relation theret(i the .jiidj^e cliargeil the Jury, "• that the fiict of such drunkenness could not be taken into consideration by them, unless the defendant was so far lioiie. as not to be conscious of what he was doinjjj, and did not know right from wrong." Out of this chargi" arisi'S the jioiiit to lie consith'red by the court in this case, and that is, how far drunkenness, in law, is a mitigation or excuse for the commission of offences. This is no new question, presented for the liist time for considera- tion, but one of the earliest consideration in the law of offences ; one which has been again and again adjudicated by the courts of Great Britain and the United States, and, as wc comprehend, with a consis- tent r.nifonnity rarely to be met with in ([uestions of a like interest and importance. Upon the subject we have nothing to di'^cover, no new prlncii)le to lay down, no philosophical investigation to enter into, in relation to mental sanity or insanity, but only to ascertain liow the law upon this subject htis been heretofore adjudged, and so to adjudge it ourselves. Lord IIalk in his History of the I'leas of the Crown,' says: *' The third sort of madness is that which is dementia offvdata, namely, drunkenni'ss. This vice doth deprive a man of reason, and puts many men into a perfect but temporary frenzy ; but by the laws of England, such a person shali h-ive no privilege b}- his voluntarily contracted mad- ness, but shall have tb: same judgment as if he were in his right senses." In the case of Reyig>:r v. Fogossa,- it was laid down as a rule, " that if a person that is drunk kills another, this shall be felony, and he shall Ik; hanged for it ; and 3'et lie did it through ignorance ; for when he was drunk he had no understanding or memory ; but inasmuch as that ig- norance was occasioned b}' his own at-t and foil}', and he might have avoided it, he shall not be privileged thereby." Lord Coke in his first Institute,^ says: "As for a drunkard, he is vohmtaiuiis damou, he hath no privilege thereby : but what hurt or ill soever he doth, his drunken- p. :!2. Plow. lit. p. 217. TllK KAIJLV K.N(il-IMI < A.sKH. or Till' 'rt'imoscc CiM's. t rciulcied loc'ond de- ^liidison ; lie use of n ri'liition inikcniu'ss defcndiint U and did oiiit to be nkennesH, ■s. .'oiisidora- let's; OIK- of Great a. consis- frest and I", no new I* into, ill V the law Ijndgo it n,' says: , namely , II ts many England, ;ed mad- senses." "tlmt if i shall 1h; 1 lie was 1 that ig- ?ht have his first he hath Inuiken- nessdoth aggregate it." In Bpverb/\i Ctiso,^ it was held, " that ulthough he who is drunk, is for tlii' time von covijion iiicntis, yvt his drunkenness dotli not niitigiite his act or offence, nor tiun to his aviiil." Hawkins in his Pleas of the Crown, '-^ says: " lie who is guilty of any crime wliat- ever tlnough his voluntary drunkenness, shidl be punished for it as much as if he had been sober." Blackstone in the fourth book of his Commentaries,*' says: "As to artificial voluntaril}' contracted madness, by drunkenness or intoxication, which deprives men of their reason, and puts them into a temponiry frenzy, our law looks upon this as an aggravation of the offence, ratlier than an excuse for any criminal be- havior. The hiw, considering how easy it is to counterfeit this excuse, and how we-ak an excuse it is, though real, will not suffer any man thus to privilege one crime by another." So Kiissell, in his Treatise on Crimes,* says: "With respect to a person noii cutiqios vientis from drunkenness, a species of madness wliich hns been termed dementia ajj'ectdta, it is a settled rule, that if the drunkenness be voluntary, it cannot excuse a man from the commission of an}' crime ; but on the contrary must be considered as an aixgravatiou of whatever he does amiss? " In the case of Cornu'cll v. State of Tmuiessec,-' the able judge who delivered the opinion of the court, in speaking upon this subject, uses the following emphatic language: "A contr:irv doctrine ought to be frowned out of circulation, if it has obtidned it, by every friend to virtue, peace, quietness, and good govci'nment. All the civilized gov- einments must punish the culprit who relics on so untenable a defence, and in doing so they preach a louder lesson of monility, to all those who are addicted to intoxication, and to parents, and to guardians, and to youth, and to society, than comes in the cold abstract from puliiits." To the justice and correctness of these remarks, all who have had ex- perience in the annals of crime can bear testimony. It is only at the present terra of the court that we have seen it proven that an offender, a short time before the perpetration of a horrid murder, iiuiuired of a groceiy-keeper, what kind of liipior would make him drunk soonest, and swallowed thereupon a bumper of brandy. We have had three cases of murder, and one (;f an assault with intent to murder, before us at this term of the court, in every one of which there were convictions in the Circuit Court, and atlirinances in this ; every one of which is of aggravated character, and in every one of which the perpetrator at the time of the commission of the offence was laboring under dementia affcctata^ drunken- 1 4 Rep. - B. 1 ch. 1, sec. 6. •' p. 26. « Vol. 1, p. 7. '•> Mart. & Yerg. U7, U9. 648 imUNKENNESS. Pirtk- r-. St-it<'. ness ; an awful illustration of the necossity of holding the law, as it has been adjudged uixm this subject. There is, in our judgment, no con- flict of authority upon this i)oint of law ; every case which may have such Ji[)pearancc, heing a case of exception in the application of the rule, or a case of no authority upon the subject. Lord Hale in his work before referred to,' says: "If by means of drunkenness, an . habitual or fixed madness be caused, that will excuse, though it be contracted by the vice and will of the party; for this habitual or fixed frenzy puts a man in the same condition, as if it were contracted at first involuntarily." And it was to this principle the circuit judge was allud- ing when he charged the jury in the present case, that the drunkenness of the prisoner could not be taken by them into consideration, unless he were so far gone as to be unconscious of what he was doing, and did not know right from wrong ; in saying which he put the case most favorable for the prisoner, for a man may be intoxicated so as to be un- conscious of what he is doing and not know right from wrong ; and yet not have contracted an habitual and fixed frenzy, the result of intemper- ance, of which Lord Hale is speaking above. The case of Rex v. Grindle;/, decided at Worcester,- by IIolhoyd, J., not reported, but re- ferred to by Russell in his works upon Crimes, ^ and now insisted upon by tiie prisoner as putting the circuit judge in the wrong in his charge to the jury, and holding different princii)les upon this subject, is ex- pressly overruled by 1*aukk and Littleuai.k, Judges, in the case of Bex V. Carroll,'^ and if it were not, it is an anomalous case ; and perhaps was not intended or considered b}' IIoi.ifOYO, to be in conflict with prin- ciples so well and so long settled. The case as stated by Russell, holds that, " though voluntary drunkenness cannot excuse from the comniis sion of crime, j-et when upon a charge of murder, the material question is whether an act was premeditated, or done only with sudden heal and impulse, the fact of the part}'' being intoxicated is a circumstance ])roper to be taken into consideration." Now, in relation to this principle as thus laid down, it may be observed that Cises may arise even of mur- der at common law, in which it would be proper to receive ruch proof as explanatory of intention. To constitute murder at common law, the killing must have been done with malica aforethought ; the existence of this malice necessarily implies the absence of all circumstances of jus- tification, excuse, or mitigation arising from adequate provocation ; and this malice is either express or implied ; express when it has been per- • Partl.cli. 4. 2 Sum. Ass. 1819. 3 p. 8. < 7 C. A P. 145. DiaMvKNM:.SS NO DErKNCK. (549 The Limits of tlu; Rule. w, as it has nt, no con- h may have tioii of tho Hale in his ciuiess, an 'Ugh it be h1 or fixed ted at first was alliid- "unkenness ion, unless g, and did case most i to be un- ; and jot intemper- )f Hex V. 1, but re- sted upon is charge ct, is ex- ;e of Hex i perhaps nth prin- pll, holds comniis question heal and e i)ropcr iiciple as of mur- ch proof law, the tence of of jus- )n ; and 3en per- petrated l\y poison. l\'ing in wait, or other deliberate and jjremeditated manner, inii)licd from the nature of the weapon, the violence of the as- sault, and the inackniuacy of tlie provocation. It may become impor- tant in a case to kntnv whether poison wliich has l)een iuibibed, was administered knowingly and designedly, or accidentally; and if it be wilful, which it is in the case of the administration of a medicine, there being two on the table, one a poison, the other not, and the poison being administered, is not the fact that the person who administered it, was drunk at the time, legitimate proof for tlio pnrimse of showing that it was a mistake which a drunken man might make, though a sober one would not? This would not be to i)rotect him from the punishment for this crime, but to show that he had not given the poison premeditatedly, '.nd therefore was guilty of no crime. So if the question be wiiether the killing is a murder or manslaughter, the defence being adecpiate |)rovocation, and it be doubtful whether the blow be str.ick upon the provocation or upon an old grudge, it seems to us proof that the pris- oner was drunk when he struck the blow is legitimate, not to mitigate the offence, but in explanation of the intent, that is whether the blow was struck upon provocation, or upon the old grudge ; for the law onl}' mitigates the offence to manslaughter, upon adequate provocation, out of compassion to human frailty ; and therefore, though there be ade- (luate cause for such mitigation, yet if in point of fact, one avail himself of it to appease an old grudge, it is murder, and not manslaughter ; and in all such cases tiie question necessarily is, whether the blow was stricken premeditatedly, or upon the sudden heat and impulse produced by the provocation, and the fact of the self-possession of the perpetrator of the crime, is very material in a conflict of proof upon the subject. If this be the intent of the opinion of Hoi.uoyd in the case of Rex v. Grindley, we are not prepared to hold that it is not law. But if it be understood to hold that a killing maj' be mitigated from murder to man- slaughter in consequence of the drunkenness of the perpetrator, thereby making that adequate provocation, in the case of a drunken man, which could not be so in th^i case of a sober one, we are prepared to lutld with Pauke and Litti.eoale, that it is not law. The case of Siran v. State ^ has also been relied upon as containing doctrine adverse to that as above stated, upon the subject of drunkenness as a defence in crimi- nal cases. This is not so. That case expressly recognizes the correct- ness of the proposition upon this subject as laid down in this opinion, with an exception which necessarily exists under our statute classing ' 4 Hump. 136. 650 DKUNKENNK.SS. I'irtli! r. State. murder into two degrees. The judge who delivered tlie opinion in that case, says: " The court was asked to charge as a matter of law, that drunkenness would reduce the crime of murder in the first degree, to that of murder in the second degree. The court, in reply, said that drunkenness is no excuse or justification for any crime. The legal c-orrectni'ss of the general statement of the court is abun- dantly sustained by a long and unshaken series of authorities in ancient and modern times, and by none more strongly- and fully than by this court, in the case referred to in ]\Iartin's &, Yei'ger's Reports. "What- ever ethical philosophy may make of the matter, such prol)ably for stern reasons of policy and necessity, will ever remain tlie doctrine of criminal courts. But although drunkenness, in point of law, constitutes no ex- cuse or justification for crime, still, wht ii the nature and essence of a crime is made to depend by law, upon tiie peculiar state and condition of the criminal's mind at the time, and with reference to the act done, drunkenness, as a matter of fact affecting such state and condition of the minli'vaiit. ion in that ' law, that degree, to eply, said ime. The . is abun- in ancient all by this 3. Wliat- '' for stern f criminal tcs no ex- ence of a condition act done, iidition of tlie jury. 1 it one of se, by de- g passion . peculiar In such he spirits Q sudden le mental ro regard so, is not [?ther the it of fact crime be icr cause ; excused mitted." r our act IS of poi- ous, ami etratioM, larceny, of mur- 13 draw- ing a distinction unknown to the common law, solely with a view to the punishment; murder in the first degree l)eing punishable with death, and murder in the second degree by confinement in the i)enitentiary. In order to inflict the punishment of death, the murder must have been committed wilfully, deliberately, maliciously, and i)rcraeditatedly ; this state of mind is conclusively proven when the death has been inflicted ))y poison, or by lying in wait for that purpose ; but if neither of these concomitants attend the killing, then the state of niind necessary to constitute murder in the first degree, by the wilfulness, the deliberation, the maliciousness, the premeditation, if it exist, must be otherwise proven ; and if it api)ear that there was sudden provocation, though not of such a character as at common law, to mitigate the offence to man- slaughter, and the killing thereupon takes place by sudden heat and passion, and without deliberation and premeditation, although the com- mon law would presume malice, yet it is under the statute murder in the second degree, and not to be punished by death. Then it will fiequently happen necessarily, when the killing is of such a character as the connnon law designated as mui'dcr, and it has not been perpetrated b^' means of poison, or by lying in wait, that it will be a vexed question whether the killing has been the result of sudden pas- sion, producetl l)y a cause inadequate to mitigate it to manslaughter, but still suflflcient to mitigate it to murder in tiie second degree, if it be really the true cause of excitement, or whether it has been the result of deliberation and premeditation ; and in all such cases whatever fact is calculated to cast light upon the menial status of the offender is legiti- mate proof; and, among others, the fact that he was at the timednnik, not that this will excuse or mitigate the offence if it Avere done wilfully, deliberately, maliciously, and premeditatedly (which it might well be, though the perpetrator was drunk at the time) ; but to show that the kill- ing did not spring from a premeditated purpose, but sudden passion excited l)y inadequate provocation, such as might reasonal)ly be ex- pected to arouse passion and heat to the point of taking life, without premeditation and deliberation. This distinction never can exist except between murder in the first and murder in the second degree under our statute. It is upon such distinction the remarks of the judge in the case of Simn v. State are based, and hy it they are to be confined. Thus far we recognize their justness, but can extend them no further. If a drunken man commit wilful, deliberate, malicious, and premedi- tated murder, he is in legal estimation guilty as if he were sober. If he do it by means of ])oison knowingly administered, or b}' lying in wait, these facts are as conclusive evidence against him as if he had been sober. If from the proof, in absence of such lying in wait, or (i52 DKUN KEN NESS. Cartwri^ht v. State. administering tlie poison, it shall appear that the killing was wilful, deliberate, malicious, and premeditated, he is guilty as though he was sober. But in ascertaining the fact of such intention, all the concomi- tant circumstances shall be heard, in order to enable the jury to judge whether such deliberate, wilful, malicious, and premeditated design existed, or whether the killing was not the result of sudden heat and passion, i)roduced by a sudden and unexpected controversy between parties, but of such a character as not to mitigate the slaying to man- slaughter. As between the two offences of murder in the second degree, and manslaughter, the drunkenness of the offender can form no legitimate matter of inquiry ; the killing being voluntary, the offence is necessarily murder in the second degree, unless the provocation were of such a character as would at common law constitute it manslaughter, and for which latter offence a drunken man is equally responsible as a sober one. We think that the circuit judge committed no error in his charge to the jury in this case, and affirm the judgment. DRUNKENNESS — DEGREKS OF MURDER— DELIBERATION AND PRE- MEDITATION. Cautwkigiit V. State. [8 Lea, 377.] Jn the Supreme Court of Tennessee, December Term, 1881. lion. James W. Dkaderick, Chief Justice. " Peter Ti'rxey, " Robert McFarland, •' William F. Cooper, " Thomas J. Freeman, Judges. Drunkenness — Degrees of Murder — Deliberation and Premeditation. —If a per- son is Ro drunk as to be incapable of foi ining a piemcditated and deliberate intent to kill, ho cannot bo guilty of miiiacr in »iic flrst degree. But where drunkenness does not exist to this extent, the jury mayco. ider itwithalltho other facts to see (1) whether the purpose to kill was formed in pass produced by a cause operating upon a mind excited with liquor — not such adequi e provocation as to reduce the crime to man- slaughter,— but it may reduce it to i, rder in the second degrev. (2) whether the purpose was formed with deliberation and premeditation, for a drunken man may be guilty of murder in the first degree. Appeal in Error from the Circuit Court of Macon County. McCoNNELL, J. N. W. was wilful, igh he was c coiicomi- V to judge ted desiiin 1 boat and ly between ig to man- tbe second in form no ! offence is on were of islaughter, isible as a charge to lND PRE- '81. —It a per- te intent to nncss does (1) whether pon a mind me to man- ■hether the lan may be N. W. CAUTWIUGUT V. STATK (55;} TIk; KiU'ts ill the Case J. L. Roach, and J. C. Guild, for Cartwight. Atlorney-Cien(!ral Lea, for the State. McFarland, J., delivered the opinion of the court. The prisoner appeals to this court from a judgment of death pro- nounced against biin by the Circuit Court of Macon County for the murder of Hugh Sanders. The prisoner was indicted in said court in January, 1879, for stealing a demijohn of wine from a church, was tried and acquitted, in April, 187!) ; the deceased was a witness against him on the trial. Out of this affair the animosity between the paities probably originated. They were both young men, the prisoner living in the town of Lafayette — the deceased within a mile or two of the town. Sometime after the trial — precisely how long is not shown — the prisoner left the county and remained away until a short time before the killing. It is claimed for the defence that be left from fear of the deceased. There is proof l»y several witnesses, that from the time of the trial until shortly before the killing the deceased made threats against the prisoner on several occasions. In only one instance does it appear that the threat was communicated to the prisoner, — this was before he left the county. The threats in some instances were in substance that the deceased had heard that the prisoner was going to charge the stealing the wine on him, and if he did he would kill him. On other occasions, he said they could not both live in the same county; that he expected a diniculty with him and he would be read}^ for him. One threat was proven to have been made the day before the killing; but ns alretuly stated, there is no proof that any of these threats were communicated to the prisoner except in the one instance. One witness proves that a week or ten da3's 1)efore the killing the}' met at a spring in Lafayette, when the deceased made some hostile demonstration, and as the witness thought, was about to draw a knife, and intimated that he would see the prisoner again. The killing occurred on the l.'Jth of Octolier, 1880, in the town of Lafayette. An hour or two before the killing, several young men, including the prisoner and deceased, were in front of Johnson's notel. Thry were engaged in playful conversation. The prisoner had a gun, and in the language of the witnesses "was drinking" or had been drinking. One of the young men asked him " if carrying a gun made him drunk, if it did he would get him one," and deceased said, "■ if it makes you drunk, pass it around and we will all take a spree " The prisoner did not seem to take offence at the language. The company separated, the prisoner and deceased going in different directions. Within an hour or two, deceased and two other j'oung men returned, CiU DUrNKKNNi^SS. Cartwriulit v. State. and with Johnson, the proprietor of the house, were on tl»e pavement in front of tlic hotel, tlie deceased sitting in a ehair leaning back against the house. The prisoner was seen coming towards them, still carrying the gun. Johnson asked deceased if he was not uneasy for fear the prisoner wouhl attack him, he said: " No, we had been at outs, but we liavc agreed to drop it, and we speak when we pass." Prisoner came ui), when near where the parties were sitting, turned a little off the pavement and came ar nind directly in front of the deceased, brought down his gun, and said, "'G — d d n you, I sujjpose you have got something against me," and instantly iired and shot the deceased through the body, from the effects of which he died in a few hours. It is fully proven by the three witnesses present that the deceased was 'Uiarmed and making no demonstration whatever, — the gun was very )se to him when fired. The prisoner walked a short distance, ;i. ji". started to run aeioss a field but was captured and ])rought back. It was proven by nearly all the witnesses that the prisoner was in the hobit < f Vinking too much. The father, mother and sister of the prls- uULr pro^'o Hiai he had been drinking for perhaps three years, and their testimony Indicates that at times he was subject to delirium tremens. They express the opinion that he was not of sound mind ; but the effect of their testimony is that he at times had delirium tremens from the use of ardent spirits. The other witnesses say he was sane on the day of the killing, and in fact was sane at all times. His father says he was wild and very drunk, and out of his mind on the day of the killing, — worse than he had seen him for months. The mother sa3's he at times seemed very much depressed, and said deceased, " charging him with stealing the wine, had put him below the respect of decent people." The witnesses pretty much all agree that the prisoner "was drink- ing" the day of the homicide, but to what extent he was under the influence of liquor tlieir testimony differs somewhat. The witnesses for the State pretty generally say that he was " drinking, but not drunk ; " but that he was to some extent under the influence of liquor fully appears. Prisoner's father, who was postmaster, proves that shortly before the killing the deceased came into his office, and asked for a letter, had his hands in his pockets, looked all around and walked hur- riedly off. In a few moments prisoner came in, witness told him that deceased had been in, had his hands in his pockets, that ho did not like his conduct, and feared mischief, and told prisoner that he had better go home ; he said he would as soon as ho saw Willie Claiborne. He went out and shortly afterwards the killing occurred. A very short DRUXKKXNESS AS A UKFENCE. C55 Cliargf of the Court vement in :'k against 1 carrying r fear the ts, but we ner came le off the , brought have got deceased ours. It ised was was very distance, ht back. IS in tlie the pris- md their tremens, he effect I the use ! day of i he was lling, — at times im with )eople." I drink- ider the sses for •unk;" )r fully shortly i for a k1 hur- ra that ot like better e. He ' short time before the killing, prisoner was seen looking in at Clail)orne'3 store, as if looking for some one. This is a sufllciont outline of the case for a proper understanding of the (juostions presented for our decision. Upon the subject of drunkenness the court charged the jury as fol- lows: "Voluntary drunkenness is no excuse for tlie commission of a crime, but it may be looked to to ascertain whether the offence has been committed or not. We have seen that to commit murder in the first degree the killing must be done wilfully, deliberately, premeditately, and Avith malice aforethought. Tliis reciuires certain states of the mind, and tlie question of the intoxication of the prisoner may be looked to, to see whether at the time of the killing he had these states of mind. Was he so intoxicated that he Avas incapable of giving the consent of his will to the killing, or of deliberating and premeditating the deed ; if he was, then he cannot be guilty of murder in the first degree. But if he was capable of willing, deliberating and premeditating the deed then he is capable of committing murder in the first degree, notwithstanding his intoxication, and it can be no excuse for him. The only effect that voluntary drunkenness can have in any event, is to reduce the crime from murder in the first toniurder in the second degree. It is never ground of entire justification, except it amounts to insanity, as will hereafter be explained to j'ou." Again the judge saj-s: " If you believe, beyond a reasonable doubt, he (the prisoner) shot Sanders in malice, not intending to kill him but (lid do it, or if you find he was so intoxicated that he was not capable of that deliberation or premeditation necessary to make murder in the first degree, or you have a reasonable doubt how this is, you should find him guilty of murder in the second degree." This is the entire charge upon this subject. In the case of Haile v. State, ^ the charge was as follows : ' ' Voluntary drunkenness is no excuse for the commission of crime, on the contrary it is considered by our law as rather an aggravation. Yet if the defend- ant was so deeply intoxicated by spirituous liquors at the time of the killing as to be incapable of forming in his own mind a design, deliber- ately and premeditately to do the act, the killing under such a state of intoxication would only be murder in the second degree." Upon a conviction for murder in the first degree the above charge was held to be erroneous. Judge Green in delivering the opinion of the court, quotes from Judge Reese in Swan v. State,^sis follows: " But al- • a Humph. 154. 4 Humph. 136. 656 DULXKENXKSS. Ciirtwrifihl r. State. though drunkenness in point of hiw constitutes no cxouse or justification for crime, still when the luilnre and essence of the crime is made to de- pend by law upon a peculiar state and condition of a criminal's mind at the time with reference to the act done, drunkenness as a matter of fact affecting such state and conditi(Ju of mind, is a proper subject for con- sideration and inipiiry by the jury. The question in such case is what is the mental status? Is.it one of self-possession favorable to fixed pur- pose of deliberation and premeditation, or did the act spring from ex- isting passion, excited by inadequate provocation acting it may 1)6 on a peculiar temperament or upon one already excited by ardent spirits ? In s'lch case, it matters not that the provocation was inadequate, or the spirits voluntarily drank ; the question is did the act proceedfrom sudden passion or from deliberation or premeditation, what was the mental status at the time of the act and with reference to the act? To regard the fact of drunkenness as meriting consideration in such a case is not to hold that drunkenness will excuse crime, but to inquire whether the very crime which the law defines and punishes has been in fact com- mitted." Judge Green says: " In these remarks the court intended to be understood as distinctly indicating that a degree of drunkenness by which the party was greatly excited, and which produced a state of mind unfavorable to deliberation and premeditation although not so excessive as to render the party absolutely incapal)le of forming a deliberate pur- pose, might be taken into consideration by a jury in determining whether the killing was done with deliberation or premeditation." Judge Green also quotes from Judge Tijui.et, in Pirtle v. State,^ to the effect that it will often b« aquestiou " whether the killing has been the result of sudden passion excited by a cause inadequate to reduce it to manslaughter, but still sufficient to mitigate it to murder in the second degree. ♦ * » In such cases, whatever will throw light upon the mental status of the offender is legitimate, and among other things the fact that he was drunk ; not that this will excuse or mitigate the offence, if it was done wilfuUj', deliberately, maliciously and premeditatedly (which it might well be though the perpetrator was drunk), but to show that the killing did not spring from a premeditated purpose, but sudden passion excited by in- adequate provocation such as might reasonably be expected to arouse sudden passion and heat to the point of taking life without premeditation and deliberation." Judge Green, in commenting on the above extract, in substance and effect says ' ' the degree of drunkenness which will shed light on the mental status of the offender, is not alone that excessive tl I 9 Humph. DEIJUKKS Ol" MlUDKi:. ():)7 Dniuki'iiiu'SM llcU'vaiit. staU- (;f intoxication which deprives the party of the capacity to frame in his mind a design tlehberately and pi eniedilatt'dly to do an act, but in addition any degree of intoxication tiiat may exist, in order tliatthe jury m:>y judge invievr of such intoxication, in c of mind unfavorable to de- liberation and premeditation, altliou^sivc as to render tlio party absolutely incapal)lo of formiiiijr u delilu' nrpose, miUL'NKKNNXt»S NO KXCL.SE. ()(;i Till" Kliy,llsli Cases. O. A. Ballard, WilUam F(irrin(jt(»i and F. W. McOettrick, for the prisoner. Jf. It. Start, an/ Justice " Samiki, Mili.i'.k, Jo.SKl'II P. Bradi.ky, StKPIIKN J. FlKI.D, JouN M. IIari.an, William B. Woods, IIoRACK Gray, Samuel Blatciiford, Stanley Matthews. (( t< << << <( Associate Justices Under a statute establishing degrees of the crime of murder, and providing that wilful, de- liberate, malicious, and premeditated Ivilliiig iE(JI{EES OF MURDER. 665 Kxcoptioii to (.'liiirs't'. ree. But I over, the tention of * * * ukl strike wliich wo e." The ' inurder. r by pur- t dct^rce ; e circiim- h him no requisite not per- ^enuation 881, rilful, de- gree, cvi- nt for the dition of u The Mr. Justice Gray, delivered tlie opinion of tlie court. Tiio plainliff ill error was indicted, convicted, and sentenced for the crime of murder in the first degree in tlie District Cotut of the 'J'hird Judicial District of tlie Territory of Utah, and presented a bill of ex- ceptions, which was allowed by the presiding judge, and from his judgment and sentence appealed to the Supreme Court of the Territory, and tliat court having atrirmed the judgment and sentence he sued out a writ of error from this court. Of the various errors assig.ied we have found it necessary to consider two only. The Penal Code of Utah contains the following provisions: " Every raurdor perpetrated by poison, lying in wail, or any other kind of wil- ful, deliberate, malicious, and premeditated killing; or cinniuitted in the perpetration of, or attemi)t to perpetrate, any i.rsoii, rivpe, burglary, or robbery; or perpetrated from a premeditated design unlawfully ami maliciously to effect the death of any other human being other than him who is killed ; or perpetrated by any act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, is murder in the first degree ; and any other homicide, committed under such circumstances as would have constituted murder nt common law is murder in the second degree." i " Every person guilty of murder in the first degree shall suffer death, or upon the recommendation of the jury, may l)e imprisoned at hard labor in the penitentiary for life, at the discretion of the court; and every person guilty of murder in the second degree shall be imprisoned at hard labor in the penitentiary for not less than five nor more than fifteen years." ^ By the Utah Code of Criminal IVocedure, the charge of the judge to the jury at the trial " must be reduced to writing before it is given" un- less l)y the mutual consent of the parties it is given orally," 3 the niry upon retiring f(;r deliberation, may take with them the written instruc- tions given, •< and " when written charges have been presented, given, or refused, the questions presented in such charges need not be excepted to or embodied in a bill of exceptions, but the written charges or the report, with the indorsements showing the action of the court, form pa. t of the record, and any error in the decision of the court thereon may be taken advantage of on appeal, in like manner as if presented in a bill of exceptions." ^ 1 Sect. 89. ' Sect. 90, Comp. Laws of Utah of 1876, pp. 6S5, 586. 3 Sect. 257, cl. 7. * Sect. 289. 5 Sect. 315, Laws of Utah of 1878, pp. lU, 121, 126. 606 DRUNKENNESS. Ilopt V. People. It appears by the bill of exceptions that evidence was introduced at the trial tending to show that the defendant was intoxicated at the time of the alleged homicide. The defendant's fifth request for instructions, which was indorsed, " refused " by the judge, was as follows: " Drunkenness is not an ex- cuse for crime ; but as in all cases where a jury find a defendant guilty of murder thoy have to determine the degree of crime, it becomes neces- sary for them to inquire as to the state of mind under which he acted, and in the prosecution of such an inquiry his condition as drunk or sober is proper to be considered, where the homicide is not committed by means of poison, lying in wait, or torture, or in the perpetration of or attempt to perpetrate arson, rape, robbery, or burglar3\ The degree of the offence depends entirely upon the question whether the killing was wilful, deliberate, and premeditated, and upon that question it is pi'oper for the jury to consider evidence of intoxication if such there be ; not upon the ground that drunkenness renders a criminal act less criminal, or can be received in extenuation or excuse, but upon the ground that the con- dition of the defendant's mind at the time the act was committed must be inquired after, in order to justly determine the question as to whether his mind was capable of that deliberation or premeditation, which, according as they are absent or present, determine the degree of the crime. ' ' Upon this subject the judge gave only the following written instruc- tion: "A man wlio voluntarily puts himself in a condition to have no control of his actions must be held to intend the consequences. The safety of the community requires this rule. Intoxication is so easily counterfeited, and when real is so often resorted to as a means of nerv- ing a person up to the commission of some desperate act, and is withal so inexcusable in itself, that the law has never recognized it as an ex- cuse for crime." The instruction requested and refused, and the instruction given, being matter of record and subjects of appeal under the provision of the Utah Code of Criminal Procedure,' a))ove quoted, their correctness is clearly open to consideration in this court.^ At common law, indeed as a general rule, voluntary intoxication affords no excuse, justification, or extenuation of a crime committed under its influence. ^ But when a statute establishing different degrees of murder requires deliberate premeditation in order to constitute ! Sect 315. » Young V. Martin, 8 Wall. 354. 3 United States v. Drew, 6 Mason, 28; United States v. McGlue, 1 Curt. 1; Com- mon wealtti V. Hawkins, 3 Gray, i63; People V. Rogers, 18 N. Y. 9. )duced at t the time indorsed, ot an ex- ant guilty les neces- lie acted, t or sober by means Lttemi)t to le offence IS wilful, coper for not upon il, or can the con- ted must ) whether , which, !e of the 1 instruc- have no 2S. The 30 easily of ncrv- is withal as an ex- 1 given, 3n of the 3tness is •xication mmitted degrees institute t. 1; Com- B3; People HOIT V. PEOPLE. 6G7 Nicools V. State. murder in the first degree, the question whether the accused is in such a condition of mind, by reason of drunkenness or otherwise, as to be capable of deliberate premeditation, necessarily becomes a material subject of consideration by the jury. The law has been rei)eatodly so ruled in the Supreme Judicial Court of Massachusetts in cases tried before a full court, one of which is reported upon other points.' And the same rule is expressly enacted in the Penal Code of Utah: 2 " No net committed by a person while in a state of volutionary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration tiie fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act."^ The instruction requested by the defendant clearly and accurately stated the law applicable to the case, and the refusal to give that instruction, taken in connection with the unqualified instruction actually given, necessarily prejudiced him with the jury. [Omitting a point of practice.] For these reasons the judgment must be reversed, and the case remanded with instructions to set aside the verdict and order a new trial. INTOXICATION — NOT RELEVANT ON QUESTION OF MALICE. NicoLS V. State. [8 Ohio St. 435.] In the Supreme Court of Ohio, December Term, 1858. Hon. Thomas W. Bartley, Chief Justice. *' Joseph R. Swan, 1 ♦' Jacob Brinkebhoff, I " JosiAH Scott, }■ Judges. " MiLTOX SUTLIFF, Intoxioation — Malice. — On an indictment for maliciously stabbing with intent to kill, it was in evidence that the prisoner was intoxicated at the time of the act. The judge I Commonwealth v. Dorsey, 103 Mass. 412; and in well considered cases in courts of other states. Pirtle v. State, 9 Humph. (1G3: llailof. State, 11 Id. Ii54; Kelly r. Com- monwealth, 1 (Jrnnt (Penn.),484; Kccnan v. (Jommonwculth, -14 Pu. St. 55; Jones v. Commonwealth, 75 Id. 403 ; People v, Belen- ciii, 21 Oal. 544; People v. Williams, 43 Id. 344; State v. Jolinson, 40 Conn. 136, and 41. Id. 684 ; Pigman t>. State, 14 Ohio, 655, 557. ■ Sect. 20. 3 Comp. Laws of Utah of 1876, pp. 568, 569. 6(58 DliUNKENNESS. Nicols V. Stall!. rcfUHcd to charge tho jury that intoxication " in n circumstanco proper to bo taken into consideration by thcni, and xhould have its just weight in determining tho malicious iuteut." Held, not error. Caleb Nichols was indicted in the Common Pleas of Muskingum County, for maliciously stabbing with intent to kill one Zachariah Riley, lie was found guilty and appealed, Charles C. Godclard and J. Q. Lane, for the prisoner. John C. Hazlett, prosecuting attorney for the State. BlMNKEUHOFF, J. [After disposing of another point.] Did tlie court below err in holding, as it did substantiall}', that, in a case of this kind, the intoxication of the accused had nothing to do with the question of malice? This is a question much more serious and difficult than the preceding, and in respect to which our minds have not been free from doubt ; but, after a long and somewhat anxious deliberation, we have unanimously come to the conclusion that there was no error in the charge of the court below on this point. All the authorities agree that drunkenness is no excuse 'or crime. Crime, when all the acts of hand and mind which constitute it actually exist, is not the less criminal when committed by a person intoxicated. A drunken malice is as dangerous, and maybe quite as wicked, as sober malice ; and it is a sorry consolation to a sufferer from a murderous stab, and to a community which is responsible for his protection, to be told that the act was done b}' a man who was bound in morals to keep sober, and who had the power to keep sober, but had become volun- tarily drunk. Nevertlieless, it has been held, in this State, that where a peculiar knowledge was an clement of the guilty act, requiring nice discrimination and judgment, as in passing a counterfeited bank-bill, knowing it to be counterfeited, and where deliberation and premedita- tion are necessary ingredients of the crime, as in minder in the first degree, evidence of intoxication is admissible, and proper to be taken into consideration by tlie jury, in determining the question as to the guilty knowledge in one case, and as tc the deliberation and premedita- tion in the other. So, if the accused was so drunk as not to know what he was Judges. " GixiRGE Robertson. ) Intoxication— When an Excuse. — A person who designing a homicide drinlss to ex- cess, and then commits il, is guilty of murder. But drunkenness brought on by sensual 1 Com.r. Jones, 1 Leigh, 612; Com. r. Hag- gerly,4{;iark, 1S7; I'iitle r. Slate,!) Ihiniph. 664; Swan V. State, 4 Humph. !:!(>; Haile c. stale, 11 Hnnipli. 1,)4 ; I'eopler. Robinson, 3 Park. 2'2:!-2.!:). CTO UKUNKKNXESS. Siiiith V. ('(HiimoinvL'ulth or Kocial f;ralifli'ation with no criiiiinul intunt iiiii}' reiluce uii unprovoked homicide from iiiurdur to mnnHlaiigliU'r. 2. Burden of Proof — Rational Doubt. — An in.struction Unit, where the Jury, from the ovidencv, ciiterlain a ratiiiiial ddiilit on the (luestion of insanity, tlicy should alwayH dud in favor of sanity, is erroneous. :t. Moral insanity is now as well understood and established as intellectual insanity. 4. Test of Responsibility. — The test of responsibility is whether the accused had suffi- ci(>nt reason to know riglit from wrong, and whether or not he had eufllcient power of control lu govern his actions. ArPEAi. fi-om Jefferson Circuit Court. O. I. and /. Caldwell, with W. F. Bullock and //. Pope, for the ap- pclhint. Julia M. Harlan, Attorney-General, for the Commonwealth. Judge KoBEitTSON delivered the opini ;n of the court. Robert Smith, convicted by the verdiet of a jury and sentenced by the Circuit Court, to be hung on an indictment eiiarging him with the murder of Fi'ederick Laiidaur, appeals to this oui't for a reversal, on the ground that the indictment is insufficient, and that the circuit judge erred in giving and in withholdings instructions on the trial. [Omitting the question as to the indictment.] The court also instructed the juiy " that in case of homicide, without any provocation, the fact of drunkenness is entitled to no considera- tion," and that " temporary insanity, which has followed as the imme- diate result of voluntary drinking to intoxication, is no excuse for crime." In all this we cannot concur. If a man designing a homicide, drink to intoxication, either to incite his animal courage, or prepare some excuse, the killing will be murder. But if sensual gratification or social hilarity, without any premeditated crime, induced the drinking, surely his condition may be such as to reduce even an unprovoked hom- icide from murder to manslaujihter. And, if transient insanity ensue, although it should not altogether excuse, yet it shouhl mitigate the crime of the inevitable act. There was some testimony in this case tending to show that the appellant, when he killed Landaur, was intox- icated, and also that such a condition superinduced moral insanitj', and the jury had a right to weigh that testimony and determine, not only the fact of intoxication, but its actual effect on the mind and will, and consequently on the conduct of tlie appellant. Had they believed that it was neither simulated nor malicous, but, without even producing momentary insanity, prompted a homicide which otherwise would not have been perpetrated, they had a right to decide that the act was not so criminal as murder ; and if, especially, they had been satisfied that the act was the offspring of momentary insanity, they could not as con- >inicido from iry, from thn ould aJways nsanitj-, eil liad suffl- nt power of r the ap- enced by with the ■ersal, on Jit judge , without )nsidora- le imme- cuse for omicidc, prepare nation or ri liking, ed hom- J ensue, :a(c the his case s intox- it3', and lot only ill, and ed that •ducing Jld not i'as not ;d tiiat as con- iu;uoi:\ or ruooF. 071 Riitioiml Doubt, scientious triers have doomed such a victim to the gallows. The instruction tacitly concedes that permanent insanity produced by drunk- enness, may excuse a homicide, and this contrary to the ancient doc- trine, is now universally conceded to be American law. And why is it law? Only because no insane man is responsible for insane acts. And why should an insane act, prompted by transient insanity, have no ex- culpatory or mitigating effect on the question of crime or of its grade? In Lord Coke's day a man could not avoid a contract on a plea of in- sanity on incapacitating drunkenness. That absurdity has been long exploded. And why should its spurious twin — that drunkenness, whatever may ^be its effect, is no excuse for crime — be still recognized as law in this improved age of a more enlightened and homogeneous jurisprudence? We conclude that this instruction did not clearly and distinctly embody the true modern law, and may have been, therefore, prejudicial to the appellant. 4. The next instruction we shall consider is the following, as given to the jury : " When the jury, from the evidence, entertain a rational doubt on the question of insanity, they should always find in favor of sanity." This, too, is not now, either altogether or always, a consistent and true doctrine. Can it be possible, that here and now, a jury is bound to hang a man for murder when they naturally and strongly doubt his ca- pacity to commit any crime ? The "rational doubt," which should result in an acquittal, lest an innocent man might be unjustly punished, is a doubt as to all or any one of the constituent elements essential to legal responsibility or pun- ishable guilt ; and unless they all concur, acquittal is the legal conse- quence. As a sound and responsible mind is indispensable to such guilt, why should not a strong and rational doubt of the capacity to commit the imputed crime favor the acquittal of the accused ? It is true that 2>Wma/ao«e, every man is presumed to be sane, and therefore, the burden of proof to rebut this presumption devolves on the party claiming the benefit of the plea of insanity. But so, too, in like manner, every man charged with crime is presumed innocent, and will be so held until the Commonwealth shall rebut that presumption. But if the testi- mony for rebutting it should leave room for a rational doubt of guilt, " not guilty " is the verdict of the law. Why, if the evidence of in- sanity is strongly preponderating, should not the presumption of sanity be rebutted, and why should the jury be bound to find sanity merely beca se insanity has not been proved with such absolute certainty as to exclude a rational doubt? If this be their duty, then in all cases of partial insanity a case could be scarcely imagined, and perhaps may 072 DKUNKKNNKSS. Sinilli r. Comnionwralth. never arise, in which a plea of insanity can be made available. A doubt of sanit}'^ is essentially different from a doubt of insanity — the former should always avail, the latter never. When the proof of insanity is ever so strong, there may, and generally will be, a doubt whether, nev- ertheless, the accused was not sane ; this is a doubt of sanity which should never convict, but should always acquit. " Belief " is of differ- ent degrees of certainty and assurance. On such a metaphysical ques- tion as that of partial insanity no proof of it can impress the jury with moral ccrtaintv. The preponderating i)robability of insanity may boas assuring as that on which they individually act in the affaiisof ordinary life ; and therefore, they nuiy be said to " believe " the alleged insanity, and yet may feel some rational doubt of it. Such a doubt in such be- lief may compel a rational doubt of resiwnsible sanity. And so doubt- ing, the jury ouglit not to convict. But wlien the evidence strongly preponderates in favor of sanity, a doubt whether, nevertheless, the ac- cused was not insane, should never acquit. And that is what we mean by a (!(Hibt of insanity. The instruction does not discriminate between the two classes of cases, but compounds them ; and it was therefore misleading. And this conclusion is not at all inconsistent with the princii)le of the case of Gmhcnn v. Commonwealth.^ In that case the instructions adjudged indefensible, assumed the sufficiency of a doubt of insanity, not of saiiit}-, and the decision of the question thus pro- pounded was all that was judicial in the case. The last instruction we shall notice is in the following words : "To es- tablish a defence on the ground of insanity, the accused must prove that at the time of the killing, he was laboring under such 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, he did not know he was doing wrong. " All this ma}' be true in most cases of intellectual insanity. This spe- cies of insanity, as first defined by Erskine and illustrated by the sus- tained verdict in Iladjield's Case is " delusion," arising from a partial eclipse of the reason, or from a morbid perversion of the percipient fac- ulties, which present to the abnormal mind, as accredited realities, images of objects that have no actual existence, or a false and distorted aspect of existing objects. Whether the true theory of the human mind be i)sychological or only physiological, spiritual or material, man is cer- tainly so constituted as to be compelled to believe the testimony of his own senses. Tliis is tiie ultimate test of all human knowledge, and necessarily has the force and certainty of intuition, which no reasoning ' in n. Mon. 5!)1. MORAL INSANITY. 07.'] Tho Doctrine Aiiiiotiiu-cd. the ac- can ovori'ome or impair. The intcllectnal monoinaiiiac may reason lop:- ically, but he reasons from false premises which liis niorhid mind as- sumes, with intuitive conlidence, to be undoubtedly true. His false conclusion may result, not from " defect of reason," as assumed in tlu^ instruction, but from an insane assumption of false i)rcmises. To piui- ish a homicide, committed by the insane victim of such delusion, ami under its resistless influence, would be punishini^ for what every other man in the same condition would ever do in defiance of all penul conse- quences ; and, therefore, such i)unishraeiit would be usch'ss, and incon- sistent with the preventive aim of all criminal jurisprudence. Although he had an abstract knowledge of " right and wrong," and knew that crime is justly punishable, nevertheless he did not know tiiat his act was criminal, but felt sure that it was lawful and righteous. But if he knew that he was doing wrong, he was not imi)e]led by delu- sion, and his act was criminal. As the intellectual was the only species of monomania recognized for many years after the tiial of Jladjidd, tlie doctrine repeated in this instruction, excepting only the " defect of reason " which it seems to presuppose was esta])lished as applicable to all pleas of insanity in criminal esses ; and until lately it had been ap- I)lied to a class of cases which are not within the scope of its philosophy. Moral insanity is now as well imderstood by medico-jurists, and al- most as well established by judicial recognition as the intellectual form. Mentally, man is a dualism consisting of an intellectual and a moral nature. It is this peculiar nature that exalts him above the animal, and makes him legally and morally a responsible being. The animal has neither reason to guide, nor a moral will to control its passions. Pas- sion governs and instinct alone guides its conduct. It is therefore not responsible to the criminal law. But a proijcr man, in a sound and moral state, with '■'■ a mons sano in corj)ore sa)io," has peculiarly and pre-eminently the light of reason to guide him in his jiatlnvay of duty, and also has a free and rational presiding will to enable him, if lie so choose, to keep that way in defiance of all passion and temi)tation. It is this intellectual and moral nature alone that makes him, in the proba- tionary sense, a man, and holds him responsible for his voluntary con- duct. And it would be as useless and cruel to hold him accountable, either criminally or morally, for an act done without a free, rational and concurrent will, as it would be, if his reason had been in total eclipse. The common law progresses with all other sciences with which it is affiliated as a growing and consistent whole. And consequently, as the science of man's moral nature has developed the phenomenon of in- 43 • t;7t DUrNKKNNKSS. Siiillli ''. ( 'oiiiinoiiwi'.'iltli sane affoclioiis, craolionH, iiiul passions, wliicli either neiitrali/e or sul>- Jiigiite tiie will, iiuMlical jiirispnHleiice iimm ionizes tiiis morbid and over\vhclmiiia- ent power of control to govern his actions." The instruction we have been consid' a this case ^ is, therefore, not only inapplicable to the species of -unity relied on by the appel- lant, but was radically defective in princip!' . Deeming further amplitude unnecessary, ami. Ihcrefore, unbefitting. we conclude that, for the foregoing errors, the verdict and judgmen n this case ought not to stand. Wherefore, the judgment is reversed, the verdict set aside, and the cause remanded for a new trial. iMJi \m;.\m;>s may i:i:i>i ( i; t ijimk. c?;. Idiiiiiii i\ ( 'ciiiiinoiiwi'iiltli. DRUNKENNKSS MAY IJKDIT'K OHADK OF CRIME. Blimm V. Commonwealth. [7 Bush, ;!2n.] In the Court of Appeals of Kentucky. Summer Term, 1870. Hon. QKonoK Robehtson, Vhicf Justice. " MOKDKCAI IIaKUIN, \ " BKi.VAmiJ.l'K'rKfisA Judges " William Lindsay, j Drunkenne*. may, unrh,r peculiar cirrumatanc.s repelling malice, reduce the grade <.f the criinu from murder tu niausluutflitcr. Appeal from IJooiie Ciix'iiit Court. .S-. .1. JIayerty, George (J Drane iiiid John L. Scott, for appellant. John Rodman, Atloriiey-CiciiLM-al, for uppclloc. Cliit'f-Justiee Robkhtson dolivorcd tlic opinion of the court. 'J'lie appellant, Peter Blimm, clmi-ired with the wanton murder of a little white lH;y, wit!i(,ut any known provocation or apparent motive, was indicted, tried and sentenced to the gallow.s at a special tei-m of the P.oone Circuit Court, onlered only a few days after the homicide and commencing on the eighth day after the ordei- was mad(! in VMcation. (Omitting an exception taken on a question of jurisdiction. ) The only contestai.le question in tlie i-eeord within tiie range of our appellate power is involved in instructions, and that is confnied to the liypothesis assumed in the testi.n(jny that when the homicide was perpe- trated the appellant was drunk, which fact, according to the case of Smith V. CommonweaUh,^ to which we adhere, may, imder peculiar cir- cumstances rei)elling malice, reduce the grade of the crime from mur- der to manslaughter. But this mitigating tendency of intoxication is not allowable when that condition of mind has been produced for the purpose of stimulating a meditated felony, or even when it is known to excite homicidal or other destructive passions, because such an inebri- ate, hostis humani generis, evinces express malice. But when, in the absence of any such aggravating circumstances, a responsible being, drunk from accident or mere sensuality, takes human life without rational motive, and which he never would have attempted, but always would have revolted at, when sober and self-poised, the principle of the decision in Smith v. Commonwealth, allows the jury to consider the ab- ' 1 DuT. 224. 676 DHINKEXXESS. Bliinin v. Coinmouwciilth. normal condition of the mind and passions so supcrindncod as a cir- cumstance whicli, while it should not excuse, may tend to repel the implication of malice essential to the crime of munUM*. In this case it appears that the appellant, on the day of the homi- cide, had gone to Burlington, and there, driiiking much liquov and try- ing to buy the tincture of cantharides, he acted and talked strangely ; and, returning homeward, cut the boy's throat, witliout any imaginable motive, unless he killed him to conceal a meditated crime on another. But there is now nr»thing sufHcient in the evidence to allow the imputa- tion of such a horrible motive. Proof that he was drunk was pertinent, in this state of case, as a circumstance helping to account for an act otherwise mysteriously inexplicahle ; and the jury had a right to weigh that fact and give it its proper effect on tlie question of motive. If the jury, on all the facts, had believed that when he killed the boy the appellant had no at'tual motive ; and also, that without know- ing or having from experience cause to apprehend that what he drank that day might instantly produce delirium, or so inflame the passions or unhinge the mind as to jeopard human life, which would have been in no danger from his hand had he been perfectly sober and self-possessed ; and also that he drank the intoxicating liquor merely for sensual grati- fication or exhilaration, and not for stimulating some meditated crime, then they might, and, perhaps, ought to have found, that there was? no implied motive, and that, therefore, the appellant was not guilty of murder for which he should be hung, but of manslaughter only, for which he should be sent to the penitentiary. This we consider both sound philosophy and good law, and when pru- dently applied, illuft tes the general principle recognized in Smith v. Commomvealth. On the trial several witnesses testified that when much excited by liquor the appellant became partially delirious, gave way to violent pas- sions and insane delusions, often imagining that " somebody was afttr him," and twice attempting suicide. On the foregoing facts, combined with strong proof of the homicide by the appellant, the Circuit Court by its instructions accurately defined murder, and exculpating insanity without any definition of manslaughter, or any other allusion to the appellant's mental condition, than that im- plied by the instruction on insanity as an excuse for homicide, and Avhich was more favorable in one aspect than the appellant was entitled to expect on the facts and the law ; for transient insanity produced by bia voluntary act would not, as the instructions implied, excuse, but at the utmost only extenuate the homicide from murder to manslaughter. DKINKENNESS. G77 Mav IlodiiLc (iradi! of Crime as a cir- repcl the he homi- aiul t?y- rangely ; lagiiiable another. ; imputa- lertinent, or an act to weigh killed the ut know- he drank issions or been in assessed ; iial grati- }d crime, e was no gnilty of only, for hen pru- Smith V. cited by lent pas- ras al'tiv homicide y defined anghter, that im- ;ide, and entitled need by ;use, but aughter. Proof of his being drunk could be available to him only for suih ex- tenuation, whether his intoxication caused temporary delirium or not. Without resulting in technical insanity, it might, however, have been such as to reduce the grade of a crime so unaccountable by helping to repel implied malice. What he needed most, therefore, was a specific and full instruction on the subject of mitigation, and not of excuse. But the instructions as given excluded from the jury any consideration of that subject, and consequently the court's pretermission of it was misleading, and the verdict as rendered was the inevitable consequence, unless he was insane. According to the Criminal Code, the presiding judge should, when asked for instructions, give the whole ':. .v api)licable to all the facts ; and this Avas peculiarly proper in a case s > sudden and huiried, and es- pecially as the court, having appointed counsel to defend, should have presented, sua sponte, to the jury all the law to which the appellant was entitled. But thouy:!! the argument in this court has not discussi d the mitigating principle, nevertheless the appointed counsel offered on the trial the following ins;truction : "The jury are instructed that if they believe from the evidence, beyond a reasonable doubt, that the piisoner (lid the killing charged, yet if they believe that he was drunk at the time, they may mitigate the offence from murder to manslaughter. That proposition might have been misunderstood or misapplied with- out some qualification as to tho degree of drunkenness, and also as to the counteracting hypothesis of getting drunk to stimulate crime, or of the appellant's knowledge of the probability that delirium or destructive [)assion would be the consequence. But the court rejected it without suggesting any modification or giving any other instruction on tliat sub- ject. In this there was an inadvertent omission which may have been prejudicial to the appellant. When intoxicating liquor inflames and perverts the passions, and blinds the reason, as it often does, a good man may witlujut provoca- tion be unconsciously precipitated into a crime which he had never meditated, and which he never could have attempted when properly sober and self-possessed. To hang him would be a cruel penalty for being drunk — to excuse him would be to encourage vice and disturb social order and security. lie should be punished, but not as the secret assassin or highway robber. The crime in that case, by whomsoever perpetrated, was signally monstrous and mysterious. The perpetrator may have been unconscious of the act, or of its guilt, or it may have been i)rompted by momentary illusion or blind passion beyond control. Why else was the brutal act done? And if so done, the gallows is not, luit imprisonment is, the legal retribution. (378 DRUNKENNESS . State r. Donovan. Tlieii we think that the CiiTuit Court ought to have defined maliee express and implied, and disMiminating between murder and man- slaughter; and tlu'ij instnic-ted the jury, in substance and effect, that if the accused cut the boy's tliroat, his being drunk at the time is un legal excuse, nor even uiitigatiny circumstance, if that condition, how- ever stultifying, was tlie offsi)ring of meditated crime, or was known to be the i)arent of [)assions or delusions dangerous to the lives of other persons ; and also that, if not so intended or so known, then if the jury should believe that it was the cause of the homicide, which otherwise would not have been per[)etrated. the}' might consider it, with all the other facts conducing to show the existence or non-existence of malice, or fixing the grade of the crime ; and that if they should then rationally doubt the imputed maliee. they should convict of manslaughter, and fix the period of conlineuicnt in tiic penitentiary. If thus substantially instructed, the verdict, whatever it may ha\c been, would have been more satisfactory to all concerned, and far more assuring that justice had been fairly and fully done according to tlif law of the land. What<'\er he may be. or wliatever shall or ought to l)e his doom, it is the uuty of this court, as the last judicial resort, to take care, in deli- unee oi' all contingent consequences, that he shall have a fair and delib- erate tiial .'U'cordiiig to law. The Connnonwialth wants no more; her interest requires that much, and our duty to her, as well as to him, demands it. Wherefore the judgment of conviction is reversed, and the cause re- manded for a new trial. INTENT— DRUNKENNESS RELEVANT OX TROSECUTION FOR ASSAULT WITH INTENT TO COMMIT HAI'E — ERRONEOUS INSTRUCTIONS. State v. Donovan. [U; N. \V. Rop. 20G.] In the /Supreme Court of Icnva, June, 18S3. 1. DnuikenneHB — Oflfer of Evidence -- Remarks of Judge. — On an offer to prove th.' priyinnv's intoxiciition lit the lime of tlie rdninii; ^un\ of llie uUeged crime, the court re mari.cii : " If you offer it us ii defence I think it is imniiitcriul, because I shall inntrucl the jury that drunken ncBi> is more of an aj^gravation than an excuse." Held, error. 2. An instruction which slates that there \va.« some cvldem^e tending to show that llie defendant was drunk is pii.'iloading. -. On a trial f:r assault with intent to commit rape, if the prisoner was M iliuiik as to be iiic;i)ialil.' of fm hhiijj: mii nilenl to r:ivi>h, he .' prove thi- le court re all inntruct (, error. show that er wa8 i«i) cd. UUUMvKXXKS.S. 679 Uelevant on Question of Intent. Appeal from Hardin District Court. Tie defendant was convicted of an assault with intent to commit a rape, and appealed. ./. H. Scales and J. S. Robertu, for appellant. McPherson, Attorney-General, for the State. Beck, J. — 1. The evidence clearly shows the assault committed by the defendant upon the prosecutrix. Hut there was evidence tending to sliow that defendant was drunk at tlie time. During the trial, upon an offer of evidence tending to show defendant's condition, the court remarked in the presence of the Jury, referring to the evidence: "If you offer it as a defence, I think it iniinaterial, l)ecause I shall tell the Jury that drunkenness is more of an aggravation than an excuse." N. :!i>; .lohnson r. State, Id. W); Loza v. State, Id.iSi. ENTElilNG DWELLING HOUSK WITH INTENT. C.S.J Iiitont Miitcriiil to tlu; Criiiif e IS inno- malicious a want of iscrimina- tlio oeca- iminating Hind of a tention in J inferred intent to we have {, but tlu! drunk to )efore the itructions ianded. rT. ling house admi.isiblo The indictment eliargos the crime of entering, on tlie night of, etc., the house of, etc., wiih intent to commit the crime of larceny. There was testimony tending to sliow that defendant was a man of good moral character and had never before been charged witli crime ; tliat on the evening before tlie alleged burglary — New Year's eve — he went with some friends and acquaintances and drank witli them until about eleven o'clock, and was drunk when found in the house, where he was arrested and taken to jail. Tlie court instructed the jury, that, '• if defendant entered the house with intent to commit tlie crime of larceny, it malces no difference in law whetlier, when he so entered he was drunk or sober. Drunkenness is no excuse for the commission of crime, unless it has been-of so long duration as to amount to a fixed insanity, or to such an extent as to render the party accused incapable of acting or thinking for himself." Tiiis instruction, asked by defendant, was refused: " If you find from tlie evidence that at the time defendant was found in the house he was drunk, and got in there tlirough drunkenness, without knowinp- where he was, and with no intent to steal or commit crime then you should acquit." To reverse tiie conviction following this instruction and refusal, defendant prosecutes this a|)peal. Hall and B'lhln-in for the appellant. H. O'Connor, Attorney-Genei-al, for the State. Whigiit, J. — The offence here charged is defined by tlie statute to be the entering, without breaking, a dwelling-house, in the niglit time, tolth intent to commit a felony, i The iidant to commit a felony is, then, one essential element, and without it the offence would not be com- plete. Starting with this fundamental position, it seems to us. in viov, of the instructions given and refused, that his conviction cannot be sustained. That given, — though, perhaps, abstractly correct. — w:is scarcely just to defendant, and was calculated to mislead, — and espe- cially so after the nf usal of that asked by defendant, inasmuch as it, !:. effect, treats as unimportant, or f.^ils to present in its proper and ai)pr' priate place, the material fact upon which defendant relied for hi exculpation. To say, that if the intent existed, it would make no diffc i- ence whether the accused was drunk or sober is correct enouo-h : and yet, the true inquiry was, whether, under the circumstances, there could have been the criminal intent. This intent, it is granted, may exist in the mind of one under the influence of intoxicating liquor, and if so, ite, /(/. idi. Hev. Par. 42:',2. 684 DRUNKENNESS. State r. Bell. intoxication is no excuse. But, instead of thus presenting tlie case to tile jury, tliey wore left to deduce, as a conclusion of law, not as a. fact to be found, tiiat whicii constitutes tlie ■wliole crime. If defendant's drunlienness was such as talvc from his act the criminal intent, tlien the act was, as to tliis offence, not criminal and the jury should have been so told. If, however, this instruction could be overlooked as possibly not prejudicnig defendant's riglits, there still remains that refused, whicli, in our opinion, asserts tlie law, was applicable to the facts, and under tlie circumstances sliould have been given. Without the felonious intent, as already suggested, the crime charged was not oomplete ; and if defendant was so drunk — there being no prior criminal intent — as not to know where ho was and with no intent to commit a felony, he was not guilty. If, under such circumstances, he has taken the property of another, there being the absence of the requis- ite spc'cilic legal intent to steal, it could not have been larceny ; and if not, noitlier would the entering be l)urglaiious within tlie moaning of the statute. From tlie very nature of the offence, there must be the criminal intent, and this cannot exist in the mind of one who is too drunk to entertain a specific intent of any kind. The doctrine as thus stated, we do not understand to be controverted by the Slate, the issue being as to its applicability, or whether the refusal could possibly have worked prejudice to defendant's rights. In our opinion, the instruction was applicable, and the principle involved was not covered by the instructions in chief. Of course, we are not holding that defendant would be excused if he was capable of and did conceive the design to commit this offence or, as the same thought is sometimes exjiressed, he would not be exculpated if he was possessed of his reason, and capable of knowing and determining whether his act was criminal or otherwise. If, too, the drunkenness was voluntary and defendant had in view this, or any other felony, he would not be protected. The drunkenness, however, is a proper cir- cumstance and should be weighed by the jury in determining whether there existed the specific intent to commit the felony charged. Wiiether he had the intent charged, whether he was capable of conceiving it, or whether he was so completely overcome by his debauch as to be incap- able of forming any purpose, were questions for the jury. If, as claimed by defendant, he blundered into his house through a drunken mistake, under such circumstances as to show an entire absence of reason, or such as would indicate the inability to form any definite purpose, and especially of committing a larceny, then there was no VOLUNTARY DRUXKEWESS NO DEFENCE. 685 Aliter wlicro Intent must be Proveil. le case to t as &fact Pendant's then the lave been isibly not refused, acts, and 3 charged being no no intent ances, he lerequis- ; and if 'ailing of it be the lo is too ! as thus ;he issue bly Imve principle jrse, we [mble of lie same he was irmining uess was ony, he per cir- whether Whether git, or e incap- If, as Irunken ence of definite was no guilt, at least not the offence here charjjed. The accused may have been guilty of a very great fault, l)ut there is in reason and law a very clear distinction between this and the intentional injury or crime con- templated by the statute. 1 The general doctrine is, of course, conceded, tliat voluntary intoxi- cation furnishes no excuse for crime committed under its influence. And the rule is just as reasonable, and b3' no means in conflict with that stated, which declares that if an offence, from its peculiar nature, is only committed when tiie act is joined with the intent, then if by one wif'out the intent, who by drink is incai)ablc of entertaining it, and never yields thereto the sanction of his will, the particular offence is not committed ; for of whatever defendant is guilty, he is not of this, because of the absence of an essential ingredient. Or, as the same doc- trine, general and special, is stated elsewhere: ''Intoxication is no ex- cuse for crime, when the offence consists merely in doing a criminal act, without regarding intention. But when an act done is innocent in itself, and criminal only when done with a corrupt or malicious motive, a jury may, from intoxication, pKcsume there was a want of criminal intention." ^ Or, as in another case, '' where the nature and essence of a crime are made by law to depend upon the peculiar state and condi- tion of the criminal's mind at the time, and with reference to the act done, drunkenness, as a matter of fact, affecting such state and condi- tion of the mind, is a proper subject for consideration by the jury. The question in such a case is, what is the mental status? " ^ The law docs not jmply the intent in cases of the kind, from the breaking and entering, or entering without breaking. If life, however, be taken, by the use of a deadly weapon, the law implies malice, and there would hence be murder, though the perpetrator was di-unk. This is the more evident when we know that one may be guilty of murder without intending to take life, as lie may in other cases intend to take life and yet not commit a crime. Or, still again, drunkenness may quite supply the place of malice aforethought, which may be general, not special ; but it cannot that of a specific intent.'* We confess that the doctrine touching cases of this character is not placed upon the clearest ground in the books. Looking at the question, however, from the standpoint of reason and principle, unassisted by authority, we be- lieve the instruction should have been given, and the judgment below is, hence. Reversed. 1 Say's Med. Jur. of Ins., ch. 25, and see sects. 453, 455, 456. !! United States v. Roudenbnsb, 1 Bald. 614. 3 Swan V. State, 4 Humph. 136. * Bishop's Cr. Law, vol. 1, paragraphs 389, 490, 491 ; notes and cases there cited. <;8«) DRUNKKNNKHS. Scolt V. Stiili'. DRUNKENNESS — KELEVANT ON QUESTION WIIETIIEH CHIME WAS committed. Scott v. State. [12 Tex. (A|)i).);il.] Inthe Court of Appeals of Texas, 1S82. Hon. John P. Whitk, Presiding Judge " CMXTON M. WlNKLKK, \ r,, 7« , " Ja.mksM. Ihui, 'K«dflr.'.v Drunkenness cannot excuse or Justify crime, Imi it may ht- .>ilio\vn in order to de- tci'iiiiiie wliL'ther any i rime or a iiarliciilar ciiine ha- ln'cn commiltiMl at all. Af'pkal from tho District Court of Dallas. Triod before Hon. George N. Aldrich. Crawford & Sriiith, W. B. Gano and J. 11. iSkiles, for appellant. JI. Chillton Assistant Attorncv-General for tlie State. IlruT, J. — The appellant was convicted for an assault with intent to rob. There Avas evidence tending to show that Scott was drunk at the time of the assault. Upon this subject the court beloAV charged as follows :" Voluntary drunkenness fiu-nishes no excuse or justification for crime. However, if you find that defendant did make the assault as ciiarged in the in- dictment, and if 3'ou find that when he so made said assault, he was so drunk that he did not know what he was doing, n\u\ was unable to form the criminal intent necessary to commit the crime charged, then you will acquit him. But any amount of voluntary drunkeiuiess which does not reach the .sfafK.s' above indicated, would not furnish any excuse or justification for the commission of it." The learned counsel for appellant, in the ])rief and argument, insists that this charge is not the law, and that therefore the judgment should be reversed. We listened with attention and great pleasure to the argument of counsel for defendant, but arc forced to the conclusion that this charge is not obnoxious to the objections urged against it. The main attack is made upon this part of the charge: " If you find that when he so made tlie assault he was so drunk that he did not know what he was doing. " This, we think is correct ; for if he knew what he was doing he knew that he was trying to rob (the converse of the propo- sition), and in law and in morals he sliould be held culpable. But this part of the charge should not be detached fr(jm that which is directly c.uuiected with it. It proceeds, '• and was unable to form the criminal STATUS OF MINI). 087 Drunkenness to lie Looked '|'o. iiilontiiocessary to commit the crime clmrgcil, then you will acquit him." The court l)elo\v admitted evidence of drunketniess, and ai)i)li(>d tiic true i.rinciples of law thereto l»y instructing the jury in effect, tiiat drunk- enness could 1)0 looked to in passing uimn the ability to form the crim- inal iiitPid. For this purpose, and this alone, can drunkenness he shown in a case like this. Drunkenness can lie looked to in passing upon (he statm^ of mind in murder trials. Where the question is whether the mind \\i\r, sufliciently calm and sedate to form the desire to kill, anxieatioii will not excuse acls which constitute an offence. Where, lu.weviM, the oireiicc chaiKeil i.- an act combined with an intent to mn DIUNKFANr.SS. Uolicrts r, Pt'oplo. cnininil nil otTunco not antunlly coinniittcil, If tlif jirisonor wnH romlored by intoxication InRiipublo of uiiturtalniiiKliio intent, hu i^ not ruBponrilblu. 2. Same. — If a ))ersnn Iiuh tlio capiu'ity to form tho Intunt to l liability to inrtaiiity from tlio cauHO, and luiii siitlicirnt nitjiitul iwipuciiN lo form an intunt. 4. Insanity Resultinfr from Intoxication. — Hut intimity (of whicti a pcrnon in ignor lint) rosultiiig from voluntary into.\i(;ali>>n will render a person not respoiihibh! wliore be does not know what he is doing or wliy lie in doing the act, or if coiimcIous of llii.s, Ik- IH not conscious of any object in doing it, or if tbo diN(>ased mind has bo pervortud hia reaHou tliiit be does not know thiil what he in doing is wrong. Ekkou to Calhoun Ciri'iiit Court. D. D. Ilufjhcs, for plaintiff in en-or. Dwiijht May^ Attornoy-General, and J. H. Lodge, for the People. CiiRisriANcY, J. — Thedefendantwa.'i tried in the Circuit Court for tho County of Calhoun, upon an information charging him with assaulling with intent to nuiider one Charles E. Greble, by shooting at him with a loaded pistol. Exceptions were taken to several requests to charge and to the charge given. To take ui) the several exceptions separately, many of wiiich embrace similar j)ropositioiis in different forms, would lead to prolixity and be less intelligible than to consider the several questions really raised by the exceptions. And as the bill of exceptions, includ- ing the evidence, will accompany the report, it is unnecessary to report them here. The first question presented by the record is, whether, under this in- formation, the jury could properly find the defendant guilty of the assault with the intent charged, without finding, as matter of fact, that the defendant entertained that particular intent? We think the general rule is well settled, to which there are few if any exceptions, that when a statute makes an offence to consist of an act combined with a particular intent, that intent is just as necessary to be proved as the act itself , and must be found by the jury, as matter of fact, before a conviction can be had. But especially, when the offence created by the statute, consisting of the act and the intent, constitutes as in the present case, substantially an attempt to commit some higher offence than that which the defendant has succeeded in accomplishing by it ; we are aware of no well founded exceptions to the rule above stated. And in all such cases the particular intent charged must be proved to the satisfaction of the jury ; and no Intent in law, or mere legal pre- sumption, differing from the intent in fact, can be allowed to supply Intoxication iM UMud, his cro thuruliy le purson i^i ciiiincii} ic) on iH i);nor Kiblo wlierc s of tlii«, III' rvertuU hiit DOplo. rt for the ssmiltiiig im with a ge and to sly, many d load to questions i, inc'liid- to report this in- of the of fact, few if )f an act ry to be atter of offence istitutes higlier plishing i stated, oved to gal pre- > supply WHKN sPKCII'ir INTENT UKgUISlTK. The rrosuniptloii from the Act. i\H\) the i»lac'e of the latter.' This eas , so far as regards the intention to iiill, i.s not identical witii niurdrr. To (Ind the defendant guilty of tlio whole charge, it is tru*', the Jury inuHl find the inti-nt to kill under cir- cuinslaiices which would hiivc made the killing murdiT — and it in not denied that had death ensmd in the present case, it would have been murder. lint the converse of the jjioposition does not necessarily fol- low: that because the killing would have been nuirder, therefore there must liavc been an intt-ntion to kill. Murder may be and often is com- mitted without any spetilic or actual intention to kill. See instances stated in 1 Bish. Cr. Law.'- And no such specific intent is therefore necessary to be found. This difference was recognized iu Maher v. Peo- l)h\ above cited. By Baying, however, that the specific intent to murder, or (which, under the circumstances of the case, would l)e the same thing), the in- tent to kill, must be proved, we do not intend to say it must be proved by direct, positive, independent evidence ; but as very properly remarked Ity niy biother Caaii-hkll in Peoplp v. Srott,^ the jury "may draw the inference, as they draw all other inferences, from any facts in evidence which, to their minds, fairly prove its existence." And in considering the question, they may and should take into consideration tlie nature of the -i case, the intent cliarged, if the defendant was at the time incapable of entertaining it, and did not in fact entertain it. We think this reasoning is entirely sound, and it is well supported bv authority. ^ 1 Vol. 1, eect. 489. 8 17 Mich. '.)-i9. 3 See Uog. V. Cruise, 8 0. & F. 641 ; Reg. v. Moore, 3 C. & K. ol9; Pigmap v. Stale, 14 Oliio, 5r)5; United States »). Uoiidenbush, 1 Bald. 514; I'irlle v. State, ',t lliiiiiph. ()(>;{; Uuile V. State, 11 lluinpli. 154 ; Swan v. State, 4 Id. 136; Mooney 17. State, 33 Ala. 419; Kelly ti. State, 3 S. &M. 518; People v. Robinson, 2 Park, 236; People v. Ilanimill, 2 Iii.2£\, Keenan v. Com., 44 Pa. St., 56; People r^ lielencia, 21 Cid. 544; and Bee 1 Bieh. (Jr.L.i .sects. 490,492. did not J volnn- l at the lo of en- alid de- nt liable ation of a his re- while in \(1 at the nation to J offence I cfAsued op in his eu a man while to(i ,he inteiil eonibina- stcd that lo excuse company - ertain it. proof of People V. Qself into tend the equencos lot in thi.^ apable of )orted by 1.419; Kelly Uobinson, 2 2 Id. 2-2;'. . ; People r- Bish.Ur.L., ASSAULT WITH INTKNT. 691 KviUeucc of Drunkenness lielevaut. In determining the question whether the assault was commiUed with the intent charged, it was therefore material to inquire wliether tlic de- fendant's mental faculties were so far overcome by the effect of intoxi- cation as to render hhn incapable of entertaining the intent. And for this purpose, it was the right atid duty of the jury — as ui)on tlie ques- tion of intent of which this forms a pa t — to take into consideration the nature and circumstances of the assrult, the actions, conduct, and de- meanor of the defendant, and lis acclaration before, at the time, and .'ifter the assault ; and especially to consider the nature of the intent and wliat degree of mental capacity was necessary to enable him to entertain the simple intent to kill, under the circumstances of tiie case — or, which is the same thing, how far thu mental faculties must be ob- .scured by intoxication to render him incapable of entertaining that par- ticular intent. This last question involves, as I tiiinlv, in connection with the evidence, a principle of law which I shall presently notice. Some intents, such as that to defraud, wlwn the result intended is more indirect and remote, or only to be brought about by a series or combi- nation of causes and effects, would naturally involve a greater number of ideas, and require a more complicated mental process, than the simple intent to kill by tho discharge of a loaded pistol. The question wc are now considering relates solely to the capacity of the defendant to entert a this particular latent. It is a question rather of the exer- cise of the will than of reasonisig' powers. And as a mutter of law, I think the jury should have been instructed, that if his mental faculties were so far overcome by the intor.ica*;ion, that he was not conscious of what he was doing, or if he did know wliat he was doing, but did not know why he was doing it. u' that his actions and the means he was using were naturally adapted or calculated to endanger life or produce death; then he had not sullicient capacity to entertain the intent, and in that event they could not infer that intent from his acts. But if he knew what he was doing, why he was doing it, and that his actions with the means he was using were naturally adapted or likely to kill, then the intent to kill should be inferred from his acts, in the same maimer and to the same extent as if he was sober. But that, on the other hand, to be capable of entertaining the Intent, it was not necessary that he should so far have the possession of his mental faculties as to be capable of appreciating the moral qualities of his acticns, or of any intended result, as being right or wrong. He must be presumed to have intended the ol)scuration and perversion of his faculties which followed from his voluntary intoxication. He must be held to have purposely blinded his moral perceptions, and set his will free from the control of reason — to (592 DRUNKEXXESS. Roberts v. People. have suppressed the guards and invited the mutiny, and should, there- fore, be held responsible as well for the vicious excesses of the will, thus set free, as for the acts done l)y its promi)ting. There is no ground upon which a distinction can safely be made in such cases, between the acts of his hands and those of his will, which have set in motion and directed the hands. He must, therefore, be held equally responsible for the will or intention, as for the act resulting from it. But he is not to be held responsible for the intent, if he was too drunk for a eonscion;-, exercise of the will to the particular end, or, in other words, too drunk lo entertain the intent, and did n"< entertain it in fact. If he did entertain it in fact, though but iuv the intoxication he would not have done so, he is responsible for the intent as well as tlu' acts. Wheii the question is one rather of guilt}'- knowledge than o*' • .)ar- ticular intent (as in United States v. Rondenbvsh and Pigman v. /o. 'e, above cited), there may be more reason for holding that a defendant, in such eases, should be caijable of appreciating the moral fjurlity of his actions to render him responsible ; and so, possi1)ly, when 1 he ;;ec don^- is innocent in itsell', or only becomes at all criminal by reason of fl:e particular intent chai-ged ; upon such cases I express no opinion. But where, as in this case, the act committed if itself criminal, without the particular intent, and especially when the manner in which the act was committed and the means and instruments used are naturally and obvi- ously adapted to j)ro(luce death, anil dangerous to others, whether he intended to kill or not; a rule which siiould hold him incapal)le of entertaining the intent, unless lie was at the same time cognizant of the moral quality of his actions, would be just as dangerous as if the same rule was applied to acts committed under the influence of intoxication, and would pi-actically render intoxication a substantial )>rotection to crime. But the Circuit Court held in effect that no extent of intoxica1i";i could have the effect to disjjrove the intent, treating the intent as an in- ference of law for the court rather than i question )f fact for the jury. In this we think there was error. Thus far we have considered the question of intent, as affected by the voluntary intoxication alone. But the question of insanity, as jif- fecting the intent, was also raised, and this upon the evidence is projiei to be considered under three aspects. There was evidence tending to show that the mother of the defen'l- ant, who was living, was insane, with lucid intervals, and had been ^'> for the preceding five years; that in her lucid intervals she was a kinu I EVIDENCE OF INSANITY. (')fl3 Iiitoxlciitioii. I, thoro- the will, re is no h cases, e set ill equally m it. was too (1, or, in ertam it )xicatioii ell as tlu' Df oar- V. >o. 'C. iidant, in ty of liis net dor/? )n of tl.o on. Bui. liout tlic act was nd ol)vi- lether lie pa1)le of nt of tlie ;he same xi cation, [^ction to oxicatinn as an in- the jury. I'ctcd Ijv y, as !if- is pr as a kiii'i and quiet woman, but that paroxysms of insanity were brought on by any excitement, and that she was then very violent towards her family and friends, and that defendant's maternal grandmother had died in- sane. Thei'e was also evidence tending to show that the disease of insanity was hereditary, and that in families where it Avas hereditary it might lie dormant in the individual member of the farail}' for years and then manifest itself ; and that intoxicating drinks and exciting al- tercations were prominent and usual causes of its development, and tiiat it was moi'e likely to be hereditary on the maternal than i)atcrnal side. But there was no evidence tending to prove that the defendant him- self had ever previously exhibited any indication or symptcmis of insan- ity, except what might or might not be inferred fioiu the effects produced upon him, on a single occasion of intoxication, or the drinking of intoxicating litpior':., when two ordinar}' doses or drinks of whiskey had been administered to him for neuralgia, by which he was deprived of the use of his mental faculties and became ungovernable, insisting that he must go to the State of New York immediately, where he had formerly lived, although he had not contemplated going there before he took the whislce3^ Nor was there any evidence tending to show any form or degree of in- sanity, distinct from and indeiiendent of the effects of intoxication, on the (lay of, or after, the assi.ult, unless the high degree of excitement and vindicliveness aroused by the verbal altercation with Greble before the intoxicr.tion, can be considered as such evidence. But if the mani- festations of mental disturbance from drinking the whiskey on a former occasion alluled to, can be considei'cd as tending to show anytiiing more than the effeci'is of intoxication upon r^ sane mind somewhat easily affected, in one among the almost inlinite sarieties of form, in which those effects exhibit themseo es in men of lifferent mental and physical organizations, whose minds are otherwise sane — if it can l»e considered as tending to show that, auove and beyond the effects of intoxication upon a sane mind, a dormant tendency to i'.isanity had been aroused into action, it would still tend, in this ca&c only o show — not the ef- fect of insanity alone, as independent of or contra-distinguished from intoxication, but the effect of some unknown degree of insanity com- l)ined with and produced by the intoxication and disiqipcaring with it, and which but for that intoxication would not have occurred. If, therefore, the intoxication was voluntary on his part, as all the evi dence tended to sliow, unless he had become insane before he resorted to drinking, as [/lesently cxplain<.'d — ajiy degree of insanity thus pro- U r>\)\ DRUNKENNESS, Roberts v. People. duccd would be a part of the consequences of such voluntary intoxica- tion. And if from his past experience or inforraution, he had, while sane and before drinking, on that da}', good reason to believe that, owing to a dormant tendency to insanity, intoxication would be likely to produce an extraordinary degree of mental derangement beyond the effects likely to be produced upon persons clear of any such tendency, he must be held to have intended the extraordintuy derangement, as well as the intoxication and the other results produced by it. And the same degree of mental incompetency would be required to render him incapable of entertaining the intent, whether caused by the intoxication combined with the insanity' thus produced or by the intoxication alone. And the same princii)le alread}' laid down in rc>ference to the question of capacity, as affected by intoxication alone, would apply with equal force to tliis aspect of the case. But if he was ignorant that he had anj' such tendency to insanity, and had no reason from his past experience, or from information de- rived from others, to believe that such extraordinary effects were likel}' to result from the intoxication ; then he ought not to be held responsible for such extraordinary effects ; and so far as the jury should believe that his actions resulted from these, and not fi-om the natural effects of drunkenness or from previously formed intentions ; the same degree of competency should be required to render him capable of entei'taining or responsible for the intent, as when the question is one of insanity alone, which I now proceed to consider. If it should be found from the evidence that the defendant inherited a peculiar tendency to insanity, which was liable to be aroused by slight causes, and that in consequence of this, and l)efore he resorted to drinking on that daj', the verbal altercation he had with Gre])le in the forenoon had aroused this diseased action of his mental faculties, to such an extent that he did not know what he was doing, or, if conscious of this, he yet was not conscious of any object in doing it; or, if he did iiot know that what he was doing, or the means he was using wen- adapted or likely to kill ; or, though conscious of all these, yet if the diseased action of his mind had so far overcome or perverted his reason that he did not know that what he was doing was wrong ; then he was not responsible either for the intoxication or its consequences. And if he continued thus incapable up to the time of the assault, either from this cause alone, or combined with the supervening intoxication, he was neither riiorally nor criminally responsible for his acts or intentions. The other justices concurred. A new tridl miisf be awarded. LARCENY INTENT — INTOXICATION. 695 People V. Cmuraius. intoxication — intent — lallceny — instructions. People v. Cummins. [47 Mich. 334.] In the Supreme Court of Michigan, January Term, 1882. Hon. Isaac Marston, Chief Justice. Benmamin F. Gravks, 1 Tut)MA8 M. CooLKY, I Associate JusUccs. James V. Campbell, j 4( 1. Larceny — Intent — Sanity. — A person cannot bo guilty of larceny whose mind oan- not comprehend all the essential ingredients of the oiTence, and recognize; their exist- ence. Therefore an instruction lluit one who knows he has been taking property not his own is sane enough to commit the crime of larceny is error. 2. Duty of Court to Instruct. — A prisoner on trial is entitled to have the theory of his defence clearly reeognized in the charge of the court. 3. Drunkenness — Temporary Insanity — Injury to Brain — Instructions. — Where the defence of temporary insanity proceeds upon the theory that it was induced by the operation of strong drink upon a mind rendered unsound by an injury to the brain, it is error to leave the question of criminal responsibility to be determined upon the facts of injury and mental unsoundness alone, or upon the effect of intoxicating li(iuors apart from the other facts. Exceptions from the Recorder's Court of Detroit. Van Riper, Attorney-General, for the People. Brennan and Donnelly, for the prisoner. GuAVES, J. — Cuinrains was convicted in the Recorder's Court of Detroit on a charge of larceny from the person and he comes here for a review on exceptions. ********** The point seriously controverted was the defendant's criminal ca- pacity, and tlie ground was taken by testimony tending to prove it, that some years prior to the act in question the defendant's brain had suf- fered injury, which made him sul)ject to spells of strunge and ptiinful feelings in his head, and moreover rendered him liable on drinking liquor, which he sometimes did, to become temporarily insane, and that having been drinking on this occasion, it had produced this crazing ef- fect, and to such extent that he was not conscious of any thievish pur- pose and was not able to form one. When the court came to deal with this question of criminal responsibility, he instructed the jury, as the GOO DRUNKENNESS. Piioplo V. Cmnmins. record tells us, that if the defendant '-knew ho had been taking prop- erty that did not belong to him, he was sane enough to commit this of- fence." By this instruction the defendant's legal accountability was made to depend on his having seen and understood that the property he took was not his own ; and certainly such is not the law. Where tlio case depends on the sanity of the accused he cannot be convicted of larceny unless the jury are satisfied tliat his mind was suf- ficient to see all the essential ingredients of tlie offence, and acknowl- edge their exist jc, and the bare recognition of the one fact tliat the pro[)erty belonged to another, would be only one among several such ingredients. No enumeration of tiie required constituents is needful. The text books will supply the information. The remaining consideration is more general. On taking into view what instructions were denied and what were given there is reason to apprehend the jury were led to suppose that the question of criminal re- sponsibility was to be solved by looking at the question of mental sound- ness and brain injury, and the question of the effect of liquor and intoxication as separate and unconnected factors. But it was not the theory of the defence that either the injury or mental infirmity on the one hand, or the drinking and intoxication on the other, distinctly and separately considered, brouglit about the alleged incapacity. The posi- tion of the defence was that the alleged state of insanity and inca- pacity was superinduced through the conjoint but consequential operation of the liquor and the brain disorder. And the defendant was entitled to have this theory clearly recognized in the charge. I tiiink the court should be advised to set aside the conviction and order a new trial. Campbell, J., concurred. CooLEY, J. — The record in this case is very confused, and I am not cer- tain that we understand the Recorder's charge as piinted in it as it was understood by the Recorder himself and the jury. But if, as the record seems to say, he instructed the jury that the plaintiff in error could be guiltv of larceny in taking the property of another when he was so in- sant as not to know what he was about, he was clearly in error. Lar- ceny implies a taking with felonious intent; and when that intent is impossible the crime is impossible. The other justices concurred. VOTING TWICE AT FLECTION. 697 ytatc V. Welch. INTOXICATION — VOTING TWICE AT ELECTION — INTENT — DRUNK- enness no excuse. State v. Welch. [21 Minn. 22.] In the Supreme Court of Minnesota, August, 1874. Hon. S. J. R. McMillan, Chief Justice. " John M. Bekiiy, ) " GEOKGE B. YULNG.J'^"'^^"*- Votingr Twice at Elect "on— Intent — Intoxication no Defence. — It is no defence to an indictment for illegally voting more tlian once at the t^ame election tliat tlie prisoner was so drunk when he gave his second vote that he did not know what ho was doing and did not know that he liad already voted. The prisoner was convicted in tlie District Court of Washington County, and sentenced to liard labor in the State prison for six months. He appealed. James N. Castle, for appellant. George P. Wilson, Attorney-General, ^'or the State. Young, J. — The indictment chai-j^es the defendant with the crime of voting more than once at the genera) municipal election of the city of Stillwater, hold April 1, 1873 — the defendant's first vote being cast in the First Ward of which he was a resident, and the second in the second Ward. ■«:* *********** At the trial the prisoner testified : "I drank considerably during the day of the election. I don't recollect voting at any of the polls that day. I might have voted three times and not known it. I must have been very drunk. Don't recollect what occurred after morning." Other evidence was introduced, tending to show that the defendant was much intoxicated at the time of the second voting. Evidence was offered, and excluded as immaterial, tending to show that defendant was a lumberman, and on the election day had just returned from a six months' absence in the woods ; that he did not know that more than one polling place had been provided ; that he did not know who were the candidates to be voted for, was not a partisan, and took no part in the election, except by voting. The exceptions taken to the exclusion of this evidence, and to the refusal of the court to give the third, sixth, and seventh instructions asked by the defendant, present the same fiOS DRUNKENNESS. State V. Wclcli. question under two aspects. The defendant's intoxication is relied on as a defence, first, as rendering the defendant incapjible of foiining the intent to commit a crime ; second, as rendering him ignorant of the fact that lie was doing the act for which he is indicted. His counsel insists that " the essence of an offence is the wrongful intent, without which crime cannot exist." This is true; but in cases lilvc the present, where the law declares the act done by the defendant to be a crime, the only question is, did the defendant intend to do the act which tiie law has forbidden? He does not ai)pear to have cast his vote by accident, or under the constraint of sui)erior force. His act was and must have been wholly voluntary. Eveiy man is conclusively presumed to intend his own voluntary acts. As the defendant must have intended to cast the second ballot, he must have intended to com- mit the offence charged. The cases cited by his counsel, except one in California, arc cases where the crime of which the prisoner was accused, consisted not merely in the doing of an act, with intent simply to do that act, but in the doing of an act, with intent thereby and by means thereof to compass a crim- inal end, to accomplish an unlawful purpose. Thus, in prosecutions for larceny, the act of the prisoner — the mere taking — does not constitute the offence, but the act coupled with the Intent to steal ; and the ques- tion is not, did the prisoner take and intend to take the goods? But, did he take them animo furnndi? So, in trials for murder in the first degree, the question is not merely did the prisoner intend to inflict the blow (or do any other act), which resulted in death ? But, had he a pre- meditated design to effect the death by means of the act done? And in St((tev. Garcey,^ the question was not, did the prisoner intend to make the assault? but, did he also intend to do great bodily harm? In such cases, where the crime consists not alone in the act done, and intended to be done, but also in the intent of the prisoner to effect certain re- sults by means of the act, courts have sometimes admitted evidence of the prisoner's intoxication, as affecting his mental condition and the possibility or probability of his forming a i)remeditated design, or even an intention, to perpetrate, by means of the act done, the crime where- with he is charged. 2 So, in another class of cases — for instance, prose- cutions for i)assing counterfeit money — wliere the prisoner's knowledge of its falsity is the essence of ll.e offence, he has been permitted to ' 11 Minn. 154. 2 Swan V. state, 4 Humph. 136 ; PirUe »• State, 9 Humph. 60,!; State v. Schingeii, 20 Wis. 74; State f. Bell, 29 Iowa, 316; Roberts r. Peoplo,19Mich. 417, where many cases arc collected. And see State v, (Jut, 13 Minn. 361. VOTINU TWICE AT ELECTION. (lt»U Dniiikuuia'.ss no l/cfiiicc show that, when he uttered the money, he was so drunk as not to know that it was counterfeit.^ But it is obvious that sucli cases have no analogy to the case at bar. This defendant's motive and purpose in voting are alike immaterial. His offence is tlie same, although his two votes were cast for oppositig candidates, so that the second neutralized the first. Here, the only question is, did the defendant, having voted in the First Ward, intend to vote a second time at the same election? In no case can a defendant, |jy proof of intoxication, rebut the legal presumption that he knows and intends his voluntary acts. In the instances above cited, the pris- oner cannot show that, by reason of intoxication, he did not intend to take tlie goods he is charged with stealing ; to strike the blow which re- sulted in death ; to pass the money which proved to be counterfeit ; nor can he show that, l)y reason of his intoxication, he did not know that he took the goods, struck the blow, or passed the money. It is claimed that the defendant was so drunk when he voted the sec- ond time that he did not remember that he had already voted, and that the act was innocent, because done in ignorance of this material fact. But this plea of want of mem(n'y is like tlujse of want of intent and want of knowledge. The defendant had first cast his vote l)ut a few hours before. In the ordinary course of tilings, had he remained soIxt, it would be no excuse for his offence, that ho had forgotten, at three o'clock in the afternoon, that he had voted in the morning. It is not })retended that he i^ not a man of ordinary memory, and he must be hold to the reasonable exercise of the power of mcmoiy that he possesses. A man is not the less responsible for the reasoiuible exorcise of his understanding, memory and will, because he has enfeebled his mem- ory, perverted his will, and clouded his understanding, by voluntary in- dulgence in strong drink. A drunken man, equally with a sober man, is presumed to know and intend tlie acts which he does, and to remcm- I'cr the acts wliicli ho- lias done. There is^ ncf'or.ling'.y, no reason why this case should form an exception to the general rule of the criminal law, that " an intoxicated man shall have no privilege by his voiuntarv contracted madness, but shall have the same judgment as if he were in his right senses." '^ In People v. Hdrris,^ cited by the defendant's co'insel, the prisoner was indicted, under a statute similar to our own, for the offence of which this defendant stands convicted. It was held that evidence of ' Pigman V. State, 14 Ohio, 555. = Hale P. C. :i2; 1 IJisli. Or. Law, sect. 489, and cases cited ; People v. Garbutt, 17 Mich. 9. 3 29 Cal. 678. 700 DUUNKENNESIS. State r. Wflcli. his intoxication could b(^ admitted upon tiie question of his intent to commit a crime, ami wlieliicr a crime liad in fact been committed ; but tlie opinion was strongly expresseil, and often reiterated, that " a state of intoxicatiijn can be of no avail as an excuse for crime." It seems to us that a prisoner would have no need for an excuse for an act which his intoxication made innocent, and no crime. There can be no practi- cal difference in the result between holding that intoxication is an excuse for crime, and holding that the acts of a man sudiciently intoxicated cannot be criminal. In either case, a man would be exempted from criminal responsil)ility f. To the indictment he pleaded not guilty. V\)on the trial he was found "•uilty, and sentenced to be imprisoned in the State prison for one year. It is provided by statute that any person who shall vote more thtm once at any election shall be deemed guilty of a felony, and, upon conviction, shall be imprisoned in the State prison for a term not less than one year nor more than five years. ' Tlie evidence shows that the defendant voted at the election i)olls of the Fifth District of San Francisco at about ten o'clock in the fore- noon of the day above mentioned, when his right to vote was challenged on the ground that he was not a resident of the district. The challenge being withdrawn, the defendant voted. About two or three o'clock in the afternoon the defendant returned to the same polls very muili intoxicated and again offered to vote. The s > person who had chal- lenged his right to vote at that place in the m(. -uiig informed hiin that he had voted before, and that he would get himself in troul)le if he ' Laws 1S,')S, 11)). lti.">, 16S. w ^, IMAGE EVALUATION TEST TARGET (MT-S) A ^ J"^ K// ' *«» >.^ b> i%^<^ m 4?. 1.0 1.1 £! lit Z vs. Ui 12.2 L25 mu Dig Photographic Sciences Corporation 23 WIST MAIN STRIET WEBSTER, N.Y. UStO (716)872-4503 iV iV ■n>' :\ \ rv C/j o 702 DKUNKEXNESS. I'foplc r. Harris. voted again. The defendant, in reply, vehemently protested that he had not voted, and declared his willingness to so make oath. The oath prescribed by the statute was tlien administered to him by the proper officer, to wliich ho responded in the affirmative, and then voted the second time. When the cause was submitted to the Jury, the court charged them as follows : " The indictment charges that the defendant, at an election for members for the State Senate and Assembly, held on the sixth day of September, 1865, in the Fifth Election District of this city and county, did, knowingly, unlawfully and feloniously, vote more than once at the same election. The language of the statute upon which the indi.^tmcnt is framed is, ' any person who shall vote more than once at ."I »' c oction * * * shall be deemed guilty of a felony.' The word knov ■' hj Is not in tiie statute, and although used in the indictment, yet it may be rejected as surplusage, for the State is not bound to suppi*' by proof the allegation in the indictment, that the act of double votiiig wad knowingly done. The statute makes the act of voting more than onoo at the same election, and not the act of voting knowingly more than once at any election, a crime. If, therefore, you are satis- fled from the testimony in the case that the defendant, at an election for members of the State Senate and Assembly, held on the sixth day . f September, 18G5, in the Fifth Election District in this city and county, voted twice, then, althougii the defendant may at the time have been under the inttuence of intoxicating liquors, it is your duty to bring in a verdict of guilty against him ; for drunkenness is no excuse or justification for the commission of a criminal act, Jind evi- dence of voluntary intoxication is properly admissible as affecting crime only in those cases in which it is necessary to ascertain whether the accused was in a mental condition which enabled him to form a deliberately premeditated piu'pose, and this is not one of those cases. The counsel for the defendant requests me to charge you that every crime involves a union of act and intent or criminal negligence. This is true. Tlie law does not punish a man for his intention, nor for his act disconnected from his intention, but act and intent must unite to constitute a crime." At the conclusion of the charge the counsel for the defendant requested the court to witlidraw that portion of it which stated that the act of double voting need not be knowingly done, which the court declined to do. The defendant's counsel excepted to each and every portion of the charge except that given at the request of the defendant's counsel, and COXSTITUEXTS OK CRIME 7();{ Act uiul Intent inn ;, I'nite. 2d that he The oath the proper voted the rged them in election sixth day city and than once tvhich the in once at The word dictment, bound to of double ;ing more nowingly ire satis- election Jixth day city and tlie time our duty ss is no and evi- affec'ting whether ) form a ie cases, at every J. This for his unite to quested } act of Icclined also excepted to the refusal of the court to withdraw the portion of the charge which stated that the actt of double voting need not be know- ingly done. The defendant's counsel asks for a reversal of the judgment, on the ground that the jury were misdirected by the court in relation to the knowledge which it was necessary the defendant should have as to what he had done and was d >ing when he voted the second time, and he insists that the error of the charge was not cured l)y the instructions given at the defendant's request, "that every crime involves a union of act and intent or criminal negligence." The theory upon which it was souglit to exculpate the defendant of criminality was, that he was in such a condition meiittilly when he voted the second time as not to know that he had already voted, but, on the contrary, believed that he iiad not done so. It is laid down in the books on the subject that it is a universal doctrine that to consti- tute what the law deems a crime, there must concur both an evil act and an evil intent. Actus nonfacit reum nisi mens sit nK.^ Therefore the intent with which tlie unlawful act was done must be proved as well as the other material facts stated in tiie indictment ; which may be by evidence either direct or indirect tending to establish the fact, or by inference of law from other facts proved. V'iien the act is proved to have been done by the accused, if it be an act in itself unlawful, the law in the first instance presumes it to have been intended, and the proof of justification or excuse lies on the defendant to overcome this legal and natural presumption. ^ Now, when the statute declares the act of voting more than once at the same election by the same person to be a felony, it must be understood as implying that the interdicted act must be done with a criminal intention, or under circumstances from which such intention may be inferred. The defendant's counsel at the trial seems to have apprehended the true rule of law on the sub- ject, and to have regarded the burden as on the defendant to show by evidence that the act of his voting the second time was not criminal, and for this purpose evidence of his intoxicated and excited condition was submitted to the jury, in order that they might determine under the rules of law governing in such eases whether the defendant was conscious at the time of having voted before at the same election. The question was fairly before the jury whether the defendant knew what he was about when he voted the second time. From the evidence I of the iel, and ' 1 Bish. Cr.Law, BcctB. t2", 229; 3 Grcenl. Ev.,HiT.t.i3. - 3 CJreenl. on Ev., seels. 13, 14, 18. 704 DRUNKENNESS. People V. Harris. in the case it appears lie was very ranch intoxicated, but whether to a degree sufficient to deprive him of all knowledge of having already voted was for the jury to decide. Tlie law does not excuse a person of a crime committed while in a state of voluntary intoxication. In Hex v. Thomas,^ Pauke, B., said to the jurj': " I must toll you that if a man makes himself voluntarily drunk, it is no excuse for any crime he may commit whilst he is so ; he takes the consequences of his own voluntary act, or most crimes would go unpunished ; " and to the same effect is the language of Aldeijson, B., in Hex v. Meakiu; ^ aiies ilie act e election Lit of him vhich the Million he ne. felonious lird stand Has given link to be 3xc'luding lefendant )nd time. rdered. MALICE. Vovember ered by the elly and Jack, a 1 negro man, the slave of the said Arcliihald Kelly. On the IGth of April, 1H.|4, th) prisoners were aniti<,Mied and pleaded " not gnilty," and on the 20lh of April wore convicted by tlie finding of the jury of nianshuighter in the first de^Mee, and were sentenced to confinement to the penitentiary fur seven yciirs. Foote and Swan, for the prisoners. Mr. Justice Tiiaciikk delivered the opinion of the court. (After passing on other questions raised on the appeal.) The court below declined to ehaige the jury as follows: " In deter- mining whether the act of killing was or was not murder, if the jury find, from the evidence, that the defendants were in a state of serious intoxica- tion, they are entitled to regard this fact as elucidatory of tlio point of intention, as evidence, more or less strong, according to tluirvlew of the real circumstances of the case, as proof of the absence of that, premeditated design, required by our statute in its first description of murder, as an indispensable ingredient of murder." As, in this case, the finding of the jury was manslaughter, no injury accrued to the prisoners from the denial of the charge by the cou't. It is true that our statute' has enacted that no person can l>e punished for an offence committed in a state of insanity; but, in doing so, it has done no more, as all writers on criminal law show, than to re-enact the coinraon law. it is to be noticed that the instruction under review has reference only to a single instance of intoxication, and has no reference to well-defined and unmistakable insanity, produced by along-continued or excessive use of intoxicating stimulants. Legal writers, from the earliest times to the present, agree that mere drunkenness is no extenu- ation or excuse for crime in the view of the law. "He who is guilty of any crime whatever, through drunkenness, shall be punished for it as much as if he had been sober." 2 i^j^ drunkard," says Lord Coke, "is voluntarius dvemon, and hath no privilege there'ny." Judge Stouy, commenting on the same sulgeet says: " If persons wilfully de- prive themselves of reason, they ought not to be excused one crime by the voliuitary perpetration of another." In this connection it is insisted by counsel that, as our statute in one of its definitions of murder, declares that it must be perpetrated from " a premeditated design to effect the death of the person killed, or some other person," and as intoxication "steals away the brain," such is a circumstance to infer the want or absence of a premeditated design to commit a felonious act. The fact of the party being intoxicated has, ' II. & II. 722, imragraph 2. 1 Hawk. P. C. 708 DKLNKENXESS. Won/, V. Sttite. indeed, been hoklen to be a circumstance proper to be taken into con- sideration where the sole (iiieation is, wiietber an act was premeditated or done with only sudden heat and impulse. The same may as truly be naid of the passion of anger, or any other excitement arising from sud- den i)rovocation or peculiar circumstances. But how slight that con- sideration should be in the instance of intoxication, is readily conceived from the as equally just presumption that the design to commit a crime may have previously existi'd or been contemplated, and the intoxication have been employed " to screw the courage to the sticking-place." Hence it is that the law discriminates between the delusion of intoxication and the insanity which it may ultimately produce. For, if the mere fit of drunkenness is always to be held as an excuse for crime, there is at once established a complete emancipation from criminal justice. And, gen- erally, to sustain a defence on the ground of insanity, a comparison of the best authorities concludes that it must be clearly proved that, at the time of committing the act, the party accused was laboring 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 understand them, that he did not know he was doing what was wrong. Judgment reversed on another ground. INTOXICATION — INTENT — LARCENY. Wenz V. State. In the Court of Appeals of Texas, 1876. [I Tex. (App.) 3G.] Hon. M. D. Ector, Presiding Judge. " C.M.W.XKLEH,W " Jonx P. WuiTii, i Drankenness — Intent. — 1» cases which involve intention, as well as acts (as theft, etc.), evidence of the drunkenuesg uf the prisoner at the time of the commission of the crime is relevant. Appeal from the District Court of Bexar County. Before Hon. GeOR(IK II. NOONAN. C. K. Breneman, for appellant. A. J. Peeler, Assistant Attorney-General, for the State. ?■ UK.NZ v. STATK. 7()!> Facts of the Casa. into c'on- noditatcd } truly be 'rom sud- that con- jonceived it a crime oxicatioii " Hence ation and 2re fit of is at once Ind, gen- arisou of at, at the nder sucli be nature hem, that ground. heft, etc.), t the crime re Hon. WiNKLEU, J. — The appellant was tried and convicted in the district court of Bexar County on an indictment cliarging that lie "' unlawfully, fraudulently, and feloniously did steal, taki-, and carry away fr( in tiu' house of Juan Flores, and from the possesssion of Juan Flmis, ono shawl, of the value of three dollars, the property of Juan Flores, witii- out the consent of said Juan Flores, and with the fraudulent and felon- ious intent to deprive the said Juan Flores of the value of said shawl, and to appropriate said shawl to the use of him, the said Jacob Wenz, contrary," etc. On the trial the accused requested certain charges to be given to the jury, which were refused. A motion was made for a new trial, on tho part of the defendant, in which two grounds are alleged as a reason why the motion should be sustained. " 1st. The court erred in refusing to charge the jiu-y as to the law applicable to the case, as requested b}- the defendant in the charge ui)on file, and part of tlie record herein. 2d. The verdict is contrary to law and evidence." The motion for a new trial was over- ruled, and the defendant in open court gave notice of appeal. The appellant assigns as error the refusal of the judge to give the charge ret after breakfast; the ownership of the shawl and house, and that the defeiKhuit did not have permission to entiT liis house and take the shawl ; that tlu-re was no person in the house when the defendrnit took the shawl. He proved the venue as in Bexar County, and he sliited that tlie door vos intrtialhj closed. On this statement of the facts, was the charge asked by the defendant a proiMT one to have been given to the jury? From the evidence introduced on the trial, and the charges refused, it seems that the theory of the defence was that, at the time the house was entered and the shawl taken, the defendant was too drunk to know what he was doing. It is not contended by the counsel that drunken- ness is an excuse for crime ; but that, inasmuch as the question of intent is necessarily an ingredient of the crime of tiicft, if the defendant, r.t *he time he entered the house and took the shawl, was too drunk to know what he was doing, he had not sullicient mental capacity to form a felonious intent to take the property of its owner and appropriate it to his own use. To what extent one accused of crime may screen himself from the penalty attached to the crime alleged, by the plea of drunkenness, ap- pears not to be laid down in our system of criminal procedure, and, in fact, ought not to be prescribed. Shoidd such a thing be attempted, the vicious would doubtless take advantage of it to screen themselves from the just consequences of their crimes. Our own laws being silent on a given subject, we are required to go to the common law for a rule by which to be governed.' When we go to\ the common law, as treated by Lord Coke and Sir William Blackstone, we are met at the ver}'^ threshold of investigation by such expressions as the following: ".Vs to artificial madness, volun- tarily contracted by fi, ankennets or intoxication, which, depriving men of their reason, puts them in a temporary frenzy, our own law looks See art. 27 of the Penal Code; Pasc. Dij;., art. -Ml);}; and (;alvin v. State, 25 Tex. 795. INTOXK.'ATIOV AND INTKNT. 7X1 Wi'iiz V. Stiitr n bcfort' he »use. The m off to a cry drunk, discharged lat he had somethini: 's witness, morning of diip of the fuission to son in the ennc as in 'osed. On ;fcndanl a s refused, tlie house k to kncjw . drunken- iiestion of lefendanl, drunk to y to form u'iutc it to from the nness, ap- c, and, in t tempted, hemsclvcs Lws being )n law for c and Sir ^stigatiou 5S, volun- A'ing men law looks upon this as an aggravation of the offence, rather than an excuse for any criminal misbehavior." ' "A drunkard, who is vrduntarions dumon, hath no privilege there])y ; but what hurt or ill soever he doctli, his diunkemiess doth aggravate it."- Yet, notwitlistanding these strong expressions of tim autiiorf quoted, and whicli go to tiie foundation of tlie generally received opinion tliat drunkenness will not, ])<'.r nc, excuse the coMunission of crime, we are not prepared to say that, in a charge involving act and intention both, as is the crime of theft, there are not cases in which it may be proper to iiKpiire into the mental condition of the accused in order to test iiis cajjacity to distinguish between right and wrong.-' It should be borne in mind, however, that the learned judge who de- livered tlio opinion in Carter v. State did not decide, but merely dis- cussed, the question. From the investigation we have been able to give the subject, and with- out intending to lay down as a rule as to how far the condition of drunk- enness may be inquired into, as tending to show the mental condition of a person accused of crime at the time the act was committed, we are of the opinion that these are matters which ought to be 8ul)mitted to the jury unler proper instructions; and that the propriety of giving or refusing charges asked on the proposition must necessarily depenil upon the peculiar circumstances attending each particular case, as developed by the evidence adduced on the trial. We are also of the opinion that, testing this case by the light afforded in the statement of facts, the court, in favor of liberty, might with pro- priety have submitted to the jury the question of the capacity of the accused to judge between right and wrong at the time he took the shawl, as asked in the charge refused ; or, if the charge asked did not, in the mind of the judge, express the law a[)plical)le to the facts, that he should have made the proper qualification, thus calling attention to this point.'* "NVe are of opinion the court erred in refusing to charge the jury on this proposition, and in overruling the defendant's motion for a new trial; and for these errors the judgment is rcverscvl and the cause remanded. Reversed and remanded. 1 4 ni. Coin. '.'V. »1 Inst. 2«7. ' Ferrell v. State, 43 Tex. 503; Carter v. State, \1 Tex. iiOO. * Paso. Dig., art. 30C1. ex. 795. 712 UUUNKKNNE88. liigulltt V. Statu. INTOXICATION — HELEVANT ON CAl'ACITV TO COMMIT LARCENY. I NO ALLS V. State [4H Wis. lu:.] Jn the Supreme Court of WiseotiHin, August Term, 1879. Hon. Edwakii (J. Hv\s,Ckiff Justice '• OusAMf.s Cmi.i;, " ^Vm....a.m 1M.v.,n, ^ " |)\MI> TXYI.MII, ^ '• 1L\K1.<»W S. okton. Intoxication — Bar^lary -'Capacity to Commit.— It in compoient to show as a detenne to acriniit tlittl thu priHonfr wits in hiicIi u physical coiKlitiDii iix toromlcrit iinprobublu thai he ininittewai{1>, ^ ■ Justices " Jamks TnoMi'Sox, '• William Stuonc, " John M. Rkak, Intoacloation — Provocation — Degree of Crime. — On a diargo of murder, the fact thill, the j)ris()ner \v;is intoxicjited will iidt make iiii inadtMiuate provocation an ade- quate one, uiilcsa it was sufllcient to render him unable to form a wilful, deliberate and premeditated design to kill or incapable of judging of his acts and their legitimate conBequeuces. Error to the court of Oyer and Terminer of Allegheny County. This was an indictment against Thomas IJ. Keenan, for the murder of John A. Obey, on tlie 5tli day of July, 18()2. Obey was conductor on one of the cars of the Citizen's Passenger Railway Company, running to Lawrenceville. The defendant, with some seven others, entered the car, all more or less intoxicated. They were noisy and boisterous in the car, sitting on each others knees, talk- iuf^ loudly, and using improper language. The conductor admonished them to be quiet " as there were ladies in the car ; " but they c(»ntiniied on as before. Several persons left the car in consequence of the bad conduct of the party, and walked on the pavement. After twice advis- ing defendant to be q let, without effect, save to elicit threatening replies, the conductor took hold of him to put him out. The defendant struck the conductor and was struck in return, and then in the scutlle 7i<; DKUNKENXKSh. KecQiin V. Cominoiiwealth. which followed drew a knife and stabbed the conductor three or four times, which caused his death soon after. Immediately after the stabljing the defendant was arrested, and taken before a magistrate. No knife was found upon his person, nor did any witness present at the trial testify as to his being intoxicated. Some days afterwards, a knife answering the description of the one seen in his hand when the act was committed was found in or near the cushion of the car in which the parties were at the time. Under the ruling of court below (Stekrett, P. J.) the defendant was convicted of murder in the first degree. The case was, thereupon, removed into this court, where the answers of the court below to certain j)oints which had been propounded by the counsel for the defendant were assigned for error, all which arc sufficiently presented in the opinion of this court. The case was argued by SwartzwaUler and Marshall, for the defend- ant, and by Miller, Hampton and Howard, for the Commonwealth. LowRiE, C. J. — Our statute adopts the common law definition of murder, and then distinguishes it of two degrees, defining the first degree specially by certain enumerated cases, and generally by the words, ' ' another kind of wilful, deliberate and premeditated killing. " It is this general part of the definition that we have to apply in the present case. A careful study of our jurisprudence on this subject clearly' reveals the fact that such terms as a deliberate purpose or a deliberate and pre- meditated intent to kill, or a specific intent to take life, are sometimes substituted for the words of the statute ; yet our reported jurisprudence is very uniform in holding that the true criterion of the first degree is the intent to take life. The deliberation and premeditation lequired by the statute are not upon the intent, but upon the killing. It is deliber- ation and premeditation enough to form the intent to kill and not upon the intent after it has been formed. An intent distinctly formed even " for a moment" before it is carried into act is enough. What the definition requires, therefore, is a distinctly formed intent to kill, not in self-defence, and without adequate provocation. It re- (luires the malice prepense or aforethought of the common-law defini- tion of murder to be, not a general malice but a special malice that aims at the life of a person. This distinctly formed intent to take life is easily distinguished, in general, from the instinctive and spontaneous reaction of mind and body against insult and injury, which is often the result of no distinctly formed intention ; and also from those eases of previous and deliberate intention to kill, Avhich may override even what, without it, would be adequate provocation given at the time of tiie kill- ing. DEGREES OF MlIiUKK. 71; lutoxiciitioii. ^e or four and taken or did any id. Some ne seen in le cushion 5 ruling of of murder his court, had been for error, e defend- lalth. inition of st degree le words, It is this lent case. y reveals and prt- jmetimes prudence degree is [uired by 1 deliber- lot upon aed even d intent . It re- w deflni- hat aims ve life is itaneous fton the :'ascs of 'n what, tiie kill- Keeping this common understanding of the definition in mind, wc shall also get clear of the iiilluence of the eases in oilier States, where the terms deliberate and premeditated are applied to the malice or in- tent, and not to the act, and thus seem to acquire a purpose brooded over, formed and matured before the occasion at which it is carried into act. Under such a delinition of tlie intention, all our jurisprudence by which malice and intent are implied from the cliar-^.^ter of the act, and from the deadly nature of the weapon used, would be set aside ; for we could not, from these, imply such a previous and deliberate, but only a distinctly formed intent, and this involves deliberation and premedita- tion though they may be very brief. We should therefore blot out all our law relative to implied intent or malice, and require it to be always l)roved as express. And this wouUl be a most disastrous result ; for the most deliberate murderers are usually those who know how to con- ceal their intent until the occasion arises for the execution of it. And still keeping in mind our usual understanding of this general part of the definition of murder in the first degree, we are further i)re- pared for an intelligent appreciation of the influence which the fact of intoxication may legitimately have on the degree of criminality and in the formation of the intent to kill, and in the ascertainment of it. The learned judge of Oyer and Terminer charged the jury that the prisoner's intoxication was not sucli an excuse as would allow a less than ordinarily adecpiate provocation to piilliate liie offence, unless it was so great as to render him " unable to form a wilful, deliberate, and premeditated design to kill," or as he afterwards expressed the thought "of judging of his acts and their deliberate consequences." Tlie first of these expressions had already been very correctly and adequately explained to the jury, and tlie second plainly means that, in using a deadly weapon in a deadly way, the prisoner is charged with the ordin- ary consequences of his acts ; if he was not so drunk as to be unable to judge that such would ordinarily be the co'isequence of such acts. The two forms of expression are cherefore the same in their meaning. We discover no error in this instruction, and think it is in substan- tial accordance with all the best considered judicial precedents, and if we keep clear of the peculiarities found in other States, arising either from misapprehension or from a differently worded statute, we shall have little difficulty in recognizing its correctness. No one pretends that intoxication is, of itself, an excuse or palliation of a crime. If it were, all crimes would, in a great measure, depend for their criminality on the pleasure of their perpetrators, since they may pass into that state when liiey will. But it is argued that, because 718 DULMvKNNESS. Kecnau v. Conimouweulth. intoxication produces a state of mind that is easily excited by provoca- tion, therefore the crimes committed under such intoxication and provo- cation are less criminal than when committed in a state of sobriety under the same provocation. We are very sure that no statute will ever an- nounce such a rule, and that we are not authorized to announce it in in- terpreting this statute. Stated in its most general form, it amounts to this : that because the mind usually receives provocation with an intensity proportioned to its own excitement or excita^iility, therefore the act of provocation must be measured, not by its own character and its ordinary effect, but by the state and habit of the mind that receives it. Then measured by this rule, the crimes of a proud, or captious, or selfish, or habitual!}' ill- natured man, or of one who eats or fasts too much, or of one who is habit- ually quarrelsome, covetous, dishonest, or thievish, or who by any sort of indulgence, fault or vice renders himself very easily excitable, or very subject to temptation, are much less criminal than those of a mod- erate, well-tempered and orderly citizen, because to the former a very small provocation or temptation becomes adequate to excuse or palliate any crime. If such were the rule, a defendant would be much more liable to injure than benefit his case, by showing a good character, and the law would present no inducement to men to try to rise to the stand- ard of even ordinary social morality. Of course it is impossible that such a principle can be a rule of law. If it were admitted, it could not be administered, for no judicial tribu- nal can have time or competence for such a thorough investigation of the special ciiaracter or state of each individual mind as the rule I'equires, and therefore it woultl necessarily jump to a conclusion such as the caprice, or prejudice, or other influence of the moment would dictate. Indeed, if we admit the principle, and carry it out logically, wo shall abolish law entirely as a compulsory rule of civil conduct ; for we shall measure all crime and all duty by the conscience of the individual, and not by the social conscience, and no contract could be binding, no debt collected, no duty enforced, and no crime punished, unless where the d fendant's conscience feels that it ought to be, and thus courts would be useless, and social organization impossible. No such principles can stand before man's natural ti'udency to social organization, or before tlie i)'>wer and right of an organized society. Individual or even social charily may often act upon the principle, but law excludes it from its si)liere. ^'ery few persons practically admit it. Even those individuals, ser men who degrade themselves below the ordinary level of social morality, by bad conduct or habits, do not thereby relieve themselves from having theiV acts and duties judged by the ordinary rules of social action. °They cannot set up their own vices as a reason for being set into a special class that is to be judged more favorably than other persons. The prisoner was somewhat intoxicated when, with six or seven com- panions, he entered the passenger car, and lie and they seem to have behaved badly and noisily, and used very i)rofane language there, so that several persons pr^ fom^d walking and left the car. Though they were twice n^quested by the conductor to be quiet, the prisoner used abusive and threatening language in reply, and his companions and he persisted in their ill-condu'-t, and he expressed his ditermination to remain. Then the conductor took him by tlie lapel of his coat, and was proceeding to put him out, when he struck the conductor, and was struck in returnf and then his companions joined in the scuffle, and he drew a knife, and by several strokes of it, mortally wounded the con- ductor. It is to such evidence as this that tlie judge's charge relates, and it seems to be entirely relevant, adequate and correct", and free from any invasions of the functions of the jury. And we say this witli special reference to those parts of the charge which say that the pris- oner ouglit to be taken to have intended the natural and usual consequences of the act of using the knife in the way he did ; that a conductor had a right to put out a passenger so misbehaving; that the prisoner's resistance and the blow struck by him were his o\vn provoca- tion of the struggle, in which he used the knife, and neither the struggle nor the ])low received in return can be any excuse for its use. None°of the other points need any special notice. Nor do we find any error in impanelling the jury or in the admission or rejection of evidence. "We 720 DRUNKENNESS. I'imiian v. State. have considered the prisoner's ease with all the caution and concern which its terrible penalties are calculated to inspire, and it is with niucli sorrow on his account, that we are compelled to say that we discover no vaUd ground for granting him a new trial. Sentence affirmed, and record remitted DRUNKENNESS — PASSING COUNTERFEIT BILL — KNOWLEDGE. PiGMAN V. State. In the Supreme Court of Ohio, January Term, 1846. [H Ohio, 555.] Hon. Reuben Wood, Chief Justu i;.? of excep- tions, is that the court ruled out evidence offered :e laid out of view. Tlie question is, was there timi- for a rea3onal»le man, in like circumstances, to have cooled, not a drunk- ard or a madman? and it is to tiiis view that the third ground of appeal excepts, for the report sliows tiiat whilst the intoxication, if found to be proved, was submitted as a matter fit for consideration, upon the ques- tion whether the prisoner acted from a former grudge or in a sudden heat of nt'W i)rovocation, it was declared to be unlit for consideration in deciding whether there was reasonable time for cooling, A i)()rtion of this court is of opinion that instructions to the jiiry ex- actly in the form assumed by the third ground would have been correct ; and that the prisoner has therefore, no reason to complain that his intox- ication was permitted to enter into the consideration of only part of the case, when it should have been excluded from tho whole. Old as the common law, and, of necessity, in almost all civilized nations, is the doctrine, founded upon obvious considerations, that drunkenness shall be no excuse for crime. The text of Kuss. on Cr. ' contains this pass- age : " Tl'ough voluntary drunkenness cannot excuse from tho commis- sion of crii.ie, yet where, as upon a charge of murder, tho material question is whether an act was premeditated, or done only with sudden heat and impulse, the fact of a party being intoxicated has been holden to be a circumstance to be taken into consideration." Reference is made to the JMS. case of Rex v. Grinclley, before IIolkoyd, J., at the Worcester assizes in 1811). And the American editor has added a refer- ence to Pennnijlcania v. McFall.'^ In the case of Rex v. Carroll,'^ Jus- tice Park, sitting with Justice Littledalk and tho recorder, in the Central Criminal Court, read the case decided by Justice IIolkoyd, which had been cited to them, and observed : — " Highly as I respect that late excellent judge I differ from him and my brother Littledai.e agrees with me. He once acted upon that case, but afterwards retracted his opinion, and there is no doubt that that case is not law. I think that there would be no safety for human life if it were to be considered as law." The authority cited by Russell is thus over- thrown. In the case cited by the American editor, INIcFall being in- dicted for a homicide, committed Avhilst '.lO was drunk, his counsel contended that he could not be guilty of murder in the fust degree, which, under the Pennsylvania law, is premeditated, because by his drunkenness he was incapacitated to form any previous purpose of mal- ^ Ail.i. 257. " 7 C. & 1*. 110; .",.' E. C. L. R. 471. DFUNKM.VXKSS. 725 Till! Casi's Kevlcwcd. imstanccs, Idcniiijj; or there timi' )ta(lriink- of appeal >iin(l to be I the quos- a sudden isidoration jury cx- n correct ; his intox- art of the >ld as the 3ns, is the ness siiall this pass- e comniis- e material th sodden en holdcn •c is made ., at the d a rcfcr- oll,^ Jus- r, in tho lOLUOVD, n and my case, but \t case is f it were nis over- |)eing in- counsel degree, R by his of mal- ice, but could only be guilty of murder in the second degree — a killing in passion, and not of malice. Addison, pri'sidcnt of the courts in the Fifth Circuit, held that " drunkenness does not incapacitate n man from forming a premeditated design of murder, but frequently suggests it ; that a drunk man may certainly bo guilty of murder, but as drunken- ness clouds the understanding and excites passion, it may be evidence of passion only and of want of malice and design." This was left to the jury, who found a verdict or murder in the first degree, and the prisoner was hanged. Our own cases of State v. Toohey * and State v. Ferguson,^ are strong authorities to sustain tho liability of the drunken man for mur- ders committed in his state of voluntary madness. It is a doctrine es- sential to the safety of society, and entirely reconcilable with the ordinary principles of punishment administered by human tribunals, when the consequences, as well as the motives of acts, must be regarded, and the punishment of two offenders bo made widely to differ, because of different results by accident, although both may have intended, and, so far as they could control results, actually have perpetrated like of- fences. In the case of Rex. v. Meakin,^ which was an indictment for stabbing, with intent to murder, Baron Ai.dekson, at the Worcester assizes, in 183G, in summing up said: "It is my duty to tell you that the pris- oner's being intoxicated does not alter the nature of the offence. If a man chooses to get drunk, it is his own voluntary act ; it is very dif- ferent from a madness which is not caused by a'ly act of his. That voluntary species of madness, which it is in a party's power to abstain from, he must answer for. However, with regard to intention, drunk- enness may perhaps be adverted to, according to the nature of the in- strument used. If the man uses a stick, you would not infer a mali- cious intent so strongly against him, if drunk, when he made an intem- perate use of it, as you would if he had used a different kind of weapon ; but when a dangerous instrument is used, which if used, must produce grievous bodily harm, drunkenness can have no effect on the consideration of the malicious intent of the party." The observations here made, as to the influence of drunkenness upon the question of in- tention, where a stick or weapon not dangerous, has been used, were wholly extra-judicial, the instrument proved in that case having been a deadly one. But from these observations it may be collected, that at \ MS., 2 Rice's Dig. 106. * 2 UiU, «19. » 7 C. & P. 297, (32 E. C. L. R. 614). 72f; DIJl NKKNXKSM. Sliili) J'. MfCiiiits. the moiiu'iit tliore was n doubt in tlic Hnron's miiid wlu-llicr, in tlie ciisc of what limy be called involuntary boniicido, wlu'n death Inis ensued from blows without a legal provociition, but the want of intention to do werious boilily harm may bo coUeet^-d from the nature of the instru- ment, and the uianner of its use, drunkenness might not be urged as an excuse for a more intemperate use of the instrument than wouUl seem pioper in a sober man ; a doctrine which, in its application, would proba- bly lead to most dangerous indulgcncies of brutal feeling excited by licpior, and which should not be readily admitted. In the case of Hex. v. John Thomas,^ before IJaron 1'akkk, at the assi;«es, in IH.')?, upon an iiulictment for malicious stabbing, the Baron used the following lan- guage: " 1 Hujst also tell you, that if a man makes himself voluntarily drunk, that is no excuse for any crime he may conunit whilst ho is so ; he must take the consetiueiices of bis own voliuitary act, or most crimes would otherwise be uni)unished. But drunkenness may be taken into consideration in cases whore what the law deems sultlcient provo- cation has been given, because the question is, in such cases, whether the fatal act is to be attributed to the passion of anger excited by the previous provocation ; and that passion is more easily excitable in a person when in a state of intoxication, than when he is sober. So when the question is, whether words liave been uttered with a deliberate pur- pose, or are merely low and idle expressions, the drunkenness of the person uttering them is proper to be considered. But if there is really a previous determination to resent a slight affront in a barbarous man- ner, the state of drimkenncss in which the prisoner was, ought not to be regarded, for it would furnish no excuse." This doctrine seems to me the same as that laid down in Russell ;2 if by "sudden heat," as used in Russell, be understood such beat as the law notices, heat ex- cited by a legal provocation ; and to the doctrine I subscribe, under- standing by it that he who is in a state of voluntary intoxication shall be subject to the same rules of conduct, and the same legal influences as the sober man ; but that where a provocation has been received, which, if acted on instantly, would mitigate the offence of a sober man, and the question in the case of a drunken man is, whether that provocation was in truth acted upon, evidence of intoxication may be considered in deciding that question. The law infers malice against the drunkard who, in his frenzy, shoots into a crowd and kills he knows not whom, no less than against a sober man for like conduct. And it would be jeopardizing the peace and ' 7 C. * P. 753 (32 E. ('. L. R. 751). 'p. 8. DIM'NKKNNKSS NO KXCfSi: r« MJ CIMMi:. 7i»7 Notes. ill the CMso HIS ensued itiou to do tlic iiiHtni- •g»'(l as an ixikl 8ocm ijlilprobti- uxcitcd by of Hex. V. 8.'>7, upon Dwing laii- oluiitarily he is so ; , or most y be taken nt jirovo- 3, whether led by the table in a ►So when crate pur- ss of the c Is reall}' 3ns nian- . not to be ms to me leat," as heat ex- e, under- tion shall nfluences received, a sober ther that 11 may be y, shoots t a sober eace and safety of .socifly to ssiy lliiit he who, liy half a d t-n nhisscs, is habit- ually ren(h>r(Ml irrltalile and fierce, shall be looked upon with more indul- ji;('iu'o when he lias barl)arously n-Hcnted a trivial affront, boeauso he had taken the cpianlity of liipior requisite tf) make him a sava^je ; or tliat he who lias never been known to fjrow cool after a transport of wrath ex- cited when he wjis in a state of intoxication, unlil sleep had sobered liim, shall, in the application of the circumstances to determine what time for coolinj^ is reaHonal)le, be allowed a lonjjer time, because, on the occasion in question, he had volun'.arily encountered the hazard which drinking was known to bring upon himself and all around him. (Omitting a ruling on other grounds.) KiciiAUDsoN, O'Neall, Kvans and Bltleu, J J., concurred. NOTES. § 60. Drunkenness no Excuse tor Crime. — It isa wcll-settlod rulcof tlio com- mon law that voluntary driuikeuuess does not excuse a crime committed wliiie iu that statu. ' ' State f. Konth, sn N. C. 626 (ISfiO) ; Corn- well r. state, Mart. & V. 117(1827); Stale t>. McCants, 1 .Spears, 3',t3 (1H43) ; U. S. v. Mc- (iliie, 1 CuTt. (". C. 1 (1X51); IT. S. v. Drew, Italdw. 28 (182S); Ilosweli v. Com., 20Gratt. 1^00 (1871); State r. Mullen, It La. Ann. 590 (18.')9) : Rafferly t'. People, (!6 111. 118 (1872) ; Mclvenzie v. State, 23 Ark. 33,5 (1870) ; People V. Williams, 43 Cal. 344 (1872) ; State v. Hur- ley, 1 IIouBt. Cr. Cas. 28 (18r)8) ; Mercer v. State, 17 (ja. 146 (1854) ; Shannalian v. Com., 8 Ihisli,4G3; 8 Am. Uep. 465 (1871); Schaller r. State, 14 M». 502 (1851); State v. Harlow, 21 Mo. 446 (laV)); People v. Cummins, 47 Mich. 334 (1882) ; State v. Grear, 28 Minn. 42G (1881) ; Kelly v. State, 3 S. & M. 518 (1844) ; Kenny v. People, 27 How. Pr. 202 ; 18 Abb. Pr. 9 ; 31 N. Y. 330 ; O'Brien v. People, 48 Barb. 274 (1867) ; 36 N. Y. 280 ; People v. Itogers, 18 N. Y. 9 (l&'iS) ; People v. Garbutt, 17 Mich. 9 (1808) ; Goldenv. State, 25Ga. 627; State v. Paulk, 18 S. C. 314 (1882); State t-. Grear, 29 Minn. 221 (1882) ; Scott w. State, 12 Tex. (App.) 31 (1882). InKenny v. People, 18 Abb. Pr. 91 ;27 How. Pr. 202 (1SG3). It was laid down that intoxica- tion was no excuse for crime. In the Court of Appeals this ruling was afllrmed. Kenny V. People, 31 N. Y. 330 (1865). The same was ■ub9C<|ucntly held in People v. O'ConncIl, G2 How. Pr. 4;i6 (18S1) ; aflirmiid by the Court oJ Appeals in the next year, O'Connell v. Peni)lc, 87 N. Y. 377 (1882) ; People f. Uogcrs, 18 N. Y. 9 (18.'58) ; reversed in the decision o( the Su))rcnio Cniirt in the same case, in which it had been held that the trial judge had erred in not instrnuling on the defence of drunkenness, as requested by the prison- er's counsel. Ueported as Kogcrs v. People, 3 Park. 6.',2 (1858). That drunkenness may re- duce a killing from murder to manslaughter, was held in Kentucky in Itlimm r. Com., 7 IJush. 325 (1870), and Smith f. Com., 1 Puv. 224 (1864) ; but these case* were partially overruled in the latter case of Shannahan r. Com., 8 Bush, 464. In Tyra v. Com., 2 Mete. (Ky.) 1(1859), it is said: "The instruction given by the court to the effect that drunk- enness, or the temporary insanity occa- sioned by the act of the defendant in getting drunk, constituted no justiflcation or excuse for the commission of crime, was, we think, entirely unobjectionable, in view of the facts of the case. Such is the well settled principle upon this subject. Any other doc- trine would result inconsequences fatal to tlie peace and safety of society." 728 DRUNKENNESS. Notes. In liespublica v. Weidle it was said: " Drunkenness is no justifloation or ex- cuse for connnitting tlic offence (treason); to allow It as such would open tlie door for tlio practice of the {greatest enorniities with impunity." ' In U. S. v. Claupool'^ it wa:i said: " DrunkeuucsH is no excuse for crime, and in tlie in- stances in whicli it is resorted to to blunt moral respousibility it heightens the culpability of the offender*' In Co»i. V. 7/ai-nt was said: " Intoxication is rather an aggravation of than an excuse for crime. If recognized as a defi-nce, all men intending to perpe- trate crime could readily shield themselves from punishment by simply becoming inebriated. When reason is destroyed, when a man has not the jjower to dis- tinguish right from wrong, or lacks the power to adhere to the right and to aij- stain from wrong, he is not accountable to the criminal laws." ' In Comviomcealth V. Dourjhertij, the court said : " Previously to saying anything on the general facts or on the law, suffer ns to remark that the intoxication of the prisoner at the time he killed the deceased and the subseciuent expressions of sorrow for his conduct are not, in the eye of the law, the slightest excuse or palliation of his crime. It would seem, indeed, as If all ages and nations concurred in the sen- timent. It is recorded in history that Alexander the Great killed his friend Clitus in a lit of passion and drunkenness, yet Alexander has always Ken sup- posed guilty of murder. Ilstorians, therefore, when they relate this event, unifonnly speak of it as the murder of Clitus by Alexander the Great."* In U. S. v. Forbes,^ it was said by Randall, J., in charging tlie jury : ''The artificial voluntarily contracted and temporary madness produced by drunken- ness is rather an aggravation of tlian an apology for a crime committed during that state. A drunkard is a voluntary demon, and his intoxication gives him no privilege. If, however, an habitual or fixed frenzy is produced by this practice, though such madness is contracted by the vice and will of the party, it places the man in the same condition as if it were contracted at first involuntarily. The wisdom of the law in refusing to recognize drunkenness as an excuse for crime is plain; nothing is more easily counterfeited, no state so irregular in itsoperation." In Com. V. J/atc/itns,* the chief justice instructed the jury thus: "The rule of law is that although the use of intoxicating liquors does to some extent blind the reason, and exasperate the passions, yet as a man voluntarily brings it upon himself he cannot use it as an excuse or justification or extenuation of crime. A man because he is intoxicated is not deprived of any legal advantage or pro- tection; but he cannot avail himself of his intoxication to exempt him from any legal responsibility which would attach to him if sober." In State v. Boicen, it was held that the trial court liaving left the qucticn to the jury on all the evi- dence in the case, the appellate court will not, after conviction of murder in the first degree, iJu aside the verdict and grant a new trial, because the jury were not instructed that if they believed that at the time of committing the a^^ the prisoner was so much intoxicated as to produce a state of mind unfavorable to deliberation or premeditation, it would reduce the grade of the offence from murder 1 Rcspublira V. Weidle, 2 Dall. 88 (1781). ' UFeil. Hep. 127 M8S2). 3 Com. V. Hart, 2 Brcwst. 646 (1868). (1807). 6 Crabbe, 559 (1845) « 3 Gray, 463 (1865). Dougherty, 1 Browne X3", DRUNKENNESS NO EXCUSE. 729 In People V. Fuller; Marshall v. State; Estes v. State. in the first to murder in the second degree under the statute.' InPcoplev. Fuller,^ tried in New York in 182;',, the prisoner was iudieted for the murder of .Vudrew Fish. On the trial «' the counsel for the prisoner offered to prove tliatlie was intoxicated at the time of the commission of the offence. The court decided that the evi- dence was improper; that intoxication was a voluntary deprivation of reason; that if a person under the influence of licpior docs an act which would l)o u crime if he wt;rc sober, the intoxication is an aji^ravation of the offence, and cannot be given in evideiK^e in mitigation of the guilt of the pri.soncr." In Marshall v. &"tate,^ the prisoner had shot the decea.scd wiiiiout provocation. Tiie prisoner had been driukiug during the day (the homicide took place about eleven at night) and in the afternoon Avas in a long drunken sleep. After getting up from that the evidence indicated that he was not deeply intoxicated. Shortly before the homicide he appeared to be drinking, but was not very drunk. He outran a per- son who pursued him, and his running was pretty straight. lie was convicted of murder. The Supreme Court in allirming the judgment said: " The degree of drunkenness shown by the evidence as existing at the time of the homicide was not great. But had it been the utmost possible degree c 4 Humph. 136. DRUXKEN'NESS NO EXCUSE. 7-M Tidwcll V. Stato: f'ross r. State. premeditation, hence drunkenness which excluded such condition of tlie mind as was necessary to constitute the statutory offence was allowed to he considered by the jury not as an excuse for the crime, but to show it had not been com- mitted. ♦ * * Whether the offence committed was the result of a precon- ceived determination to kill and murder or was induced by the voluntary intoxication of the prisoner, lie is nevertheless guilty, and must suffer the penalty denounced by the statute against .such as violate its provisions." In Tidioell v, State,^ tlie following; Instruction was asked and refused: "If the jury though believing beyond a reasonable doubt that one or more of the defend- ants killed said Ford, still believe from the evidence that it is probable that the parties doing the killing were so drunk as to be incapable of forming an intent or design of committing murder, then the defendant must be acciuitted." On appeal the ruling was sustained. "Drunkenness of itself," said the Supreme Court, " when voluntarily produced does not excuse oi palliate an offence. In cases of homicide it may be material in determining the degree — whether it is murder in the first or murder in the .second degree. ' Wilfulness, premeditation and deli!)era- tion must concur with malice to constitute murder in the flr.st degree. These in- volve an inquiry into the state of mind of the accused at the time of the killing- and of consequence it is proper to inquire whether he was then drunk or sober; and if drunk whether the intoxication rendered him incapable of premeditation and deliberation. Mere drunkenness, a mere temporary tit of intoxication, cannot excu.se a liomicide. The vice of the charge requested, in reference to the drunk- enness, is apparent. If given, it would have authorized an acquittal, though the jury may have been satisfied the homicide was malicious and voluntary." In Cross v. State,^ the prisoner was indicted for assault with intent to murder. The trial judge said to the jury: ".\.s you have heard stated and read from books, drunkenness is no excuse for crime." On appeal it was said by the Supreme Court: " This certainly has been very often said by the most learned jurists, and has received the sanction of the highest and most learned courts. But it is urged by the learno.i counsel for the plaintiff in error, that although drunkenness is no excuse for crime, the fact that the accused was in a state of intoxication at the time may be considered by the jury in determining whether the accused intended to commit the crime with which he is charged, and that this is especially so where he is charged with an assault with intent to murder or commit some other felony. For this puri)ose most courts have held that the fact that the accused was drunk at the time of the connnission of the act with which he is charged is admissible evidence. This rule is not inconsistent with the one stated by the court, 'that drunkenness is no excuse for crime.' The evidence when admitted is not admitted as an excuse for the crime but as tending to show that the accused did not commit the crime charged. In this case the court permitted the accused to show that he had been drinking intoxicating liquors at the time and was to some extent intoxicated. The learned judge also charged the jury that if they believed the accused Avas frenzied from the use of liepior, so that he was incapa- ble of knowing what he was doing, they would be justified in acquitting him. ' You are to take all the circumstances together and see whether he has acted with deliberation.' If the counsel desired any more definite instructions as to ' 70 Ala. 33(1881). » 65 Wis. 261 (1882). 732 DRUNKENNESS. Notes. what force should be given to the fact of the drunkenness of the defendant at the time of tlie sliooting, ho should have called the attention of the court to it l)y a request to instruct more fully and particularly upon the subject. The instruc- tion given sul)initted the fact of the drunkenness of the defendant in general • terms to the jury as a fact which they might consider in determining the ques- tion of the coolness and deliberation of the defendant's acts; and it cannot be allegeil as error that he did not instruct them more at length on the subject, unless he was requested so to do." (rt) Intoxication no Excuse — Friery v. People. — In Friary v. People,^ the prisoner was tried for the murder of one Henry Lazarus while drunk. The following charge of the trial judge on the subject was approved on appeal. " In regard to intoxication I shall not attempt to lay down any new law or state any views of my own, because it is settled in this State, as it is in Pennsylvania. I shall content myself by reading you the law as stated by the courts. In the case of People V. Ro'jcr.i,' it was said: 'We must lay out of view, as inipplicablo, the case of a person who had become insensible from intoxication, and who was performing an act unaccompanied by volition. It is not claimed in this case that the i)risoner at the l)ar was a person who had become insensible from intox- ication, and who was performing an act unaccompanied by volition ; therefore you must look at the prisoner, not as a man in that state, but merely as one who was more or less under the inihicnee of li(iuor. The degree of intoxication you may determine in your own mind, if you can. If you consider him as a man who was intoxicated, but yet sensible and able to do an act in accordance with his will, the huv is very plain. The courts have laid down this rule. No rule is more familiar chan that intoxication is never an excuse for crime. There is no judge who has been engaged in the ailministration of criminal law who has not had occasion to assert it. Even where intent is a necessary ingredient in the crime charged, so long as the offender is capable of conceiving a tlesign, he will be presumed, in the absence of proof to the contrar, , to have intended the natural consequences of his own act. Thus, if a man, without provocation, shoot an- other, or cleave him down with an axe, no degree of intoxication, short of that which shows that he was at the time utterly incapable of acting from motive, will shield him from conviction. In this case the defendant had struck the blow which caused the death, and to this act the law, without further proof, would impute guilty design. If the perpetrator would escape the consequences of the act thus committed, it was incumbent on him to show either that he was incapa- ble of entertaining such a purpose, or that the act was committed under provo- cation. The adjudications upon the question, both in England and this country, are very numerous, and are characterized by a singular uniformity of language and doctrine. They all agree that, where the killing is unequivocal and unpro- voked, the fact that it was committed while the perpetrator was intoxicated, can not be allowed to affect the legal character of the crime.' There is nothing in our statute, gentlemen, which gives us reason to say that the Legislature in- tended to be understood as altering the rule laid down by the court in the case of People V. Sogers: nothing to lead us to believe that the Legislature meant < M Barb. 319 (1865) ; 2 Keyes, 434 (1866). « 18 N. Y. 9. i INTOXICATION' NO EXCUSE. 733 People r. Robinson. to say that, because a man was intoxicated when he (losifinctlly took the life of anotlier, his crime was to l)e redueeil to nuirder in tlie second dejjcrt'e. In the recent case in Pennsylvania, the same doctrine is snhstantially laid down, where the court says: 'No one pretends that intoxication is of itself an excuse or palliation of a crime. If it Avcre, all crimes would, in a jrrcat measure, depend for their criminality on the pleasure of their jjcrpetrators, since they may pass into that state when thoy will. IJut it is ar;^ued that, because intoxication pro- duces u state of mind that is excited by provocation, therefore the crimes com- mitted under the influence of such intoxication and provocation are less criminal than when committed in a state of sobriety under the same provocation. We are very sure that no statute will over announce such a rule, and we are not author- ized to ainiounce it in interpreting the statute.' The courts allow evidence of intoxication to be given to the jury, and the reason is very Avell stated by the court in case of the People v. Itogcrs, and has been very well stated by the counsel here to-day. It is proper for the cf)nsideratiou of tlie jury in several aspects: First, as bearing upon the question of intent. A man may be so drunk as to be incapable of forming any intent. That may be the case. What would be the law in such a case is unnecessary to discuss any further than 1 have done. Evidence in regard u> intoxication is admitted for the purpose of giving the jury an opportunity to say how much weight is to be attached to expressions made immediately before and after the occurrence. The evidence of this man's intox- ication is material, in determining what weight or importance is to be attached to the act of sticking the knife in the counter and the declaration accompanying it, or the expression used in the sleigh, ' the man is dead anyhow,' or to the ex])ri'sslon used by him, ' I will dance at the wake.' Such expressions would have more force with the jury if made by a sober than by an intoxicated man. Courts allow such evidence to come in and to be considered by a jury; but although they allow it to be considered, they declare intoxication is no excuse for crime, unless it exists in the degree before mentioned. JS'ow, gentlemen, among the various propositions which have been submitted by the counsel for the prisoner, I find one or more to this effect, — that to convict the prisoner of murder in the first degree, it is necessary for tlie prosecution to show allirmatively, beyond reason- able doubt, that the prisoner had an intent to kill the deceased. Of course that is so, and I have so charged. It must be shown beyond a reasonable doulit that he intended to kill, but if the intention exists a moment before flie i)l()w is struck, as I have already told j'ou, it is enough. The other proposition, ' that the prose- cution must afllrmatlvely prove that the prisoner's nund was in a condition to form the intent,' is involved in the geni'rai propositions which I have snl)mitted to you. The other propositions in regard to intoxication, and in regard to the purpo.se for which evidence of intoxication is allowed to go the jury, also in regard to the presumptions of the law, and the general proposition that the pris- oner is entitled to every reasonable doubt, I have already charged." (b) Drunkenness — Homicide — Insanity — People v. Robinson — In the Trial Court. — In Peoi^e v. Jiubinson,^ the prisoner, Henrietta Kobinson, was charged with murder by poisoning. She was tried in the Court of Oyer and < 1 Park. «M9 (1854). ^ 7M OltUXKENNES.s. Notes. '''.> Tonniner for KcnsscliU'r County, New York, iuid. " It certaiuiy was not straiifre tliiit tlic accused and tliis youna; girl sliould l)e luutuaiiy pleased wltli each otlicr. The accused, willi an ardent temperament which demanded society, was so situated tiiat she was compelled (o live alone; she had sou.nlit companionship amoiujc tliose who liad no tastes or sympathies witli her own, and wiiom she rev;arded, proi)al)ly witii contempt. It was a relief to her solitariness, therefore, to meet witli Miss Di'lon; a younuj witless, iniaj;- Inativegirl, with wlioin she could at least talk. Tuere was much, too, in the air and manner and romantic stories of the accused, to please the taste for romance which this younj; j!;irl seems to have possessi-d. She says she was ph-ased witli her conversation, thouf^h she adnuts tiiat licr ear was sometimes offended by expressions botii of profanity and obscenity. IIow far the testimony of this girl tends to establish tlie defence, it is for you to consider. It is upon this tes- timony, supported, as it is, by some other kindred but less important evidence, tliat tlie counsel for tlie defence chiefly rely. *' The theory of the defence is, that the accused had become apprehensive that she was aljout to. be al)andoned by one who had bien iier friend ami suptiortcr, and that this apprehension operating on her nervous, excitable temperament, with the recollection of her own former position, from which slie had so sadly fallen, had unhinged her mind, and that the eccentricities wliich marked her con- duct about the period to which our iurpiiries relate, were but the outbursts of in- cipient madness. To sustain tins theory the testimony Of Mr. Urownell was introduced, to whom it seems, early in May, the accused had described her griefs and apprelieusions. "Thus far I have only noticed the testimony which relates to occurrences whicli happened before tlie arrest of the accused. What her coniluct was afterwards is only important as it sheds light on her previous condition. Her conduct after she was committed to prison was indeed strange. How far this conduct was produced by the enormity of the charge preferred against her, and a sense of the condition in which she found herself; and how far by being suddenly deprived of the stimulants in which she had evidently been indulging so freely; or how far by disordered intellect; are questions which I suggest for your consideration. In this connection, too, it will be proper to consider the opinions of the two pliysicians wlio had the opportunity of seeing lier in jail, and who say that, in their opinion, she was not rational. Such opinions are allowed to be given in evidence not as by any means controlling your own opinions, but to be consid- ered by the jury, who are to give them such weiglit, as in their judgment, having regard to the experience, and opportunities for observation which those Avho express the opinions have enjoyed, such opinions deserve. "And now, gentlemen, I have noticed what I regard as the principal points and features of the case before us. I liave not thought it fit to review at length the evidence presented, as I am sure tliat it is all fully within your recollection. " Here my duty ends, and yours begins. I am conscious liow imperfectly I have discliarged my duty, and yet it has been my single aim to administer the law with a steaily and unswerving hand. In tlie discharge of your duty be faithful to your own high obligations. Deal justly with tills poor, unliappy woman, whose destiny is now committed to your hands. Deal mercifully with her, too. This PEOPLE V. UOBIXS prlsomr wa.s ho much hitoxicutud as to 1)0 ijcrijft of her si'usi's or unconscious of whiit slie was doing. On the con- trary, di'slgn was apparent throu;j;liout tlio whoio transaction. WhcthiT that dL'si;^ti was conceived and enti'rtalncd by u mind, sober or excited l»y strong drlnli, was not material, and whether l)y a mind sane or insane, was a proper subject for the consideration of tiie jury. The whole charge tal^en toj^ether shows, I think, tiiat when the judge said the law would still hold the prisoner responsible for her act, tliou;ih she was intoxicated to such an extent as to be unconscious of what she was doing, he liad reference, not to a state of insensi- bility, but to a state of excitement or madness, the Iminetllato conseqnenco of Indulgence In strong drinks. For after putting a case by way of illustration. In- consistent with the consiructlon claimed by the prisoner's counsel, and then stating that If it appeared tliat by tlie inscrutable visitation of Providence the faculties of a man had become so disortlere«l that he was no longer cajiabie of discriminating between right and wrong in respect to the act he had committed, then the law would pronounce him innocent of crhne, he added: 'But If his derangement bo voluntary — if his madness be self-invited — the law will not hear him when ho makes his intoxication his plea to excuse him from punish- ment.' The whole of this charge taken together and the explanation contained in the other part of the charge excepted to show very satisfactorily that the judge Intended to charge, that self-inflicted insanity, tiie Innnedlatc consequence of drink, would constitute no di fence; and It could, I think, have been under- stood by the jury In no other sense. "To that extent the rule has been long established at common law. 'Adnink- ard,' says Lord Coke, 'hath no privilege thereby; but what hurt or 111 soever he doeth, his drunkenness doth aggravate.' * Russell says,* with respect to a person non compos mentis from drunkenness, a species of madness which has been termed dementia affectata, It is a settled rule, that if the drunkenness be voluntary, it cannot excuse a man from the commission of any crime, but, on the contrary, must be considered an aggravation of whatever he does amiss.' ' Nam omne crimen ebrietas incendit et detegit,^ has become a maxim of the law.* The rule is otherwise when the drunkenness is not voluntary; as if a person by the uuskllfulncss of his physician, or by the contrivance of others, and with- out auy volition on his own part, «.:afc ci drink such a thing as causes frenzy, this puts him in the same condition nsotiier insane persons, and equally excuses hlm,^ and in cases of delirium trcii.f ns, or mania potu, the Insanity excuses the act, the frenzy being, not the inuuedlate effect of Indulgence In strong drink, but a remote consequence superinduced by antecedent drunkenness.* These general principles are fully recognized in the modern English cases,' and also in decls- 1 4. Coke, 125 ; 1 Co. Litt., 247; 1 Hale, 31; 4 Black. Com. 26. » Co. Litt. 247. » 1 Russ. on Cr. 7. * 4 Black. Com. 26. « Barb. Cr. L. 268. • Barb. Cr. L. 268; Dean's Med. Jur. 681; 3 Am. Jur. 0, 20. ' Rex V. Patrick, 7 C. & P. 146; R. v. Meakin, Id. 297 ; Burrow's Case, 1 Lewin 0. C. 76 ; Rennie'a Case, Id. 76; R, v. Tbomaa, 7 0. A P. 820. I'KOPLK l\ ItOHINSON. 741 III tlR' Appt'lluli' Court. Ions 111 llils country,' In tlie latter nise Mr. Judmi.' Siniiv rcitoniles and np- provi's nil till! ruli'> aliovu (piotod at counnoii law, tlicrufore, tluTo can bu uo (loulituf the ('onci'tucss of ilii; rliar;;*; on tliU point. " Uut it i.s supposed our Ntatutuhus so far t-liaii^od thu common-law dtlliiitlon of murder as to lie liieonsistfiit with tlio iiropositioii, that druukunness diios not fxi'use, i)Ut aj?;;ra\ iirs the crinie. " In those States In which uiurdcr has been divided by statute Into decrees, It has been liild, thill if the accused was Intoxicated to sucli an extent as to de- prive him of the power to form a desijin, the offence would be no more than mur- der in the second dcfirce. In IVnnsylvania, murder in the first deirrce, Is where the offence is perpetrated by means of poison, or by lyiiiji In wait; or In perpe- trutiugor uttemptiuK to perpetrate any arson, rape, roiibery or biir-riary, or by any other wilful, deiilierate and premeditated kiHini;, and is i)uuisiial)le with deatli. Murder in the second degree, in that State embraces 'ail other kinds of murder,' and is punishable liy solitary conllnemeiit, at labor in the penitentiary .i In that State it was held in tlio case of /Idijijrrt;/, tried at tlie Lancaster Oyer and Terminer in 1847, that the i»rlsoiier could not be convicted in the llrst deiiree, if deprived by voluntary iulo.\ication of the power to form a delilierate desij^n to perpetrate the act. The very able eharire of the learned president juil;:c lii tliat case will be found reported at ien*rth in Lewis' IJ. S. Cr. Law.* A simihir opin- ion was expressed by Mr. Justice 1)a.mi;i, in Commomoealth v. Jones,* the stat- ute of Virginia, on tlie subject of murder beimj substantially like that of Penn- sylvania.* In Tennessee also, where a like division of murder Into dei^recs is made by statute, It was held In Ilttile v. State,'^ that in all cases where the ques- tion is between murder in the llrst degree, and murder in the si-cond dcLrree, the fact of drunkenness may be proved, to shed light ui)on the state of mind of the defendant, so as to enable the jury to determine v liether the killing sprung from a premeditated purpose, or from passion excited by a,le(|uate provocation; and the degree of drunkenness need not be such that it deprives the defendant of the capacity to form a deliberate and premeditated dexign to take life. All these cases proceed upon the principle expressly declared by Judge Kki.sk In Swan v. State,'' that although drunkenness, in point of law, constitutes no excuse or justification for crime, still when the nature and essence of a crime are made to depend upon the peculiar state and condition of the criminal's mind at the time, and with reference to the act done, drunkenness may lie a proper subject for the consideration of the jury. "All these decisions to wliich I have referred, as being made in States, where, by statute, murder is divided into two degrees, were made in cases where death was caused by violence and where it became necessary to ascertain wliether the ' McDonough's Case, Rran Med. Jur. 2!)4 ; cases cited in 1 Heck's Med. Jur. 627; ISeii- nett V. State, Mart. & Yerg. l.TS; Cornwell V. State, Id. 147 ; Schaller v. State, 14 Mo. 602; 6 Law Rep. (N. s.) fi63; 1 Wright's Ohio Rep. 80 ; 8 Ired. 330 ; Wilson'i; Caee and Bird- eall's Case, reported in Ray's Med. Jur., sects. 405, 406; Kelly r. State, 3 Smed. A M. 618; U. S. V. Clarke, 2 Cranch 0. C. 158; t'. S. r. McGIue, 1 Curt. C. C. 1; Stater. Jolin, 9 Ired. 330; U. S. v. Drew, 6 Mason, 2a. 2 Penn. Stat. 1784. 3 p. 402. < 1 Leigh, 612. '■ Virginia Stat. 1796. « 11 Humph. 154. ' 4 Humph. 136. i I I 742 DRUNKENNESS. Notes. act Wiis (li'lihoratu and (jninoditatod, so as to fall within tiic first (loi^roe. I am l)y no iiR-aiis prepared to hold that it niijiht not he jiroper nnderour own statute to show the di'uree of drunkenness of the accused for the i)iirpose of ascortain- iiig whether lie had the power to i)reineditatc tiie act, thonuli in tlie (^asc of Jla;/fj(!rt>i above cited, Li'.wis, J., expresses the opinion that it is only in tliose States where murder is divided into dej^crees, tliat drunkenness can he set up as a defence.' Our stalufe has not divided the crime of murder into dcjireos, but It has limited and delined the offence; and a case cannot he hrotif^ht within the first sul)dl vision of the section unless tliere he a premeditated Uesijin, in fact, to effect the death of the person killed or of some liuman heing. The i)roposition laid down in JSiOcn v. Side seems to me lo he iucoutrovertihle and to he univer- sally applicable, vi ',. : that where the nature and essence of the crime :r under our statute, any more than at common law, can drunkenness he alleged as an excuse for the act. " If I am riixht tlierefore in the construction I have ptit upon the language of the charge, no error was committeil." The judgment was allirmcd. 1 Lewis Cr. I,. Any • liex r. tiriii(ilc_v, 1 nuss. on Or. 7, sul)se- queiitly iiui'stioncd in l!ex r. Carroll, 7 C. & V. 145; I{i'j?. r. Moon-, citcil t) Law lU'p- fs. s.) .501 ; :M:irsliairs Case, 1 l.ewiii. (.;. f. 76; ll'g. I'. C'm>v. S C. & r. ."i41; I'igninn t-. State, U Ohio, .'),-)5; Uex r. Thomas, 7 C. & r.S17; Uox r. Meakin, /^.2!)7; rirlle r. State, 9 nunipli.eo;!; I'ennsylvania »-. McF.'ill, Add. 2.57 ; Wharton'sLawof Homicide, 369; Whar- ton's Cr. L. 92. VOLlIXTAltY INTOXICATION NO DEFKNCK. 743 Stiitc V. ThoinpKou. (<0 Voluntary Intoxication — State v. Thompson. — In State v. Thomp- son,^ the dufendaut wuh convicted of niurdor in tlie llrst dojirei; in killing onu William McRavy and appealed to the Supreme Court. The opinion of Lkonaud, J., who delivered the opinion afllrniing the ju(l Bishop's Grim. Law. sect. 400. « 1 Curtis, C. C. 13. « Cornwell v. State, Mart. & Yerg. 147. • M Cal. .131. • 43 Cal. 345. ' 2 Park. 19. i.\to.\i(;ation no dkfence. 745 I'lTJury — Bliispliciiiy — Arson. tions that the intoxication of tlie accnscd is no dofonce and forms no excuse for tlieconunis.'sion of a crinio. It has hecn frc(|iiontly so decided even in tiie case of murder, though Juds^e Vax Nkss once permitted the fact of intoxication to be proved to reijut tlie presumption of malice where a man had been Ivilled in a sudden affray, and to sliow tliat tlie act was the effect of sudden passion and not of premeditation. But the correctness of that decision has been much doubted. This can be nothing in a case of barefaced i)er jury like the i)rcsei!t to take it out of the general rule. There must be some mistake aljout the ease sahl to have been decided by Chief Justice Si'kxcku. JJut even if he did so decide, it was contrary to the uniform decisions of courts in relation to such a defence and therefore cannot be the law." The prisoner was convicted. (/) Blasphemy — Intoxication no Defence — People v. Porter. — In People V. Porter,^ the prisoner was indicted in New York for blasphemy. Ills counsel offered to prove that he was so beastly tlriink that he did not know what he said: Walwoktii, J.— "That is no excuse, and only aggravates the offence." (g) Arson — Intoxication no Defence — People v. Jones. — In People v. Jones'^ the prisoner was indicted for arson. In charging the jury the .Judg(! said: •' It was urged and was attempted to be proved that at the lime he was too drunk to know Avhat he was about. Now, though the rule is well established that intoxication voluntarily imposed is no excuse for or extenuation of crime, yet it is proper to consider it in cases where the intention is the main element of the offense, as in homicide, whether there is an intention to kill, and in passing counterfeit money whether it was known to bo counterfeit. In such cases, it may with great propriety be asked whether the mind was in a condition to have the requisite intention or knowledge? But there was no such element in this case, for when it was clearly made out, as it was here, that the firing the house was wilfully done, it was of no consequence what was the motive for, or the in- tention of the act, nor was it even necessary to prove that the prisoner knew that the building was inhabited. The fact that it was so was all that the law re- quired to be made out. The motive of the prisoner then for perpetrating the offense, or his condition of intoxication, were alike excluded from consideration by the language of the statute delining the crime. How far it might be just or wise to establish so severe ii rule was not for the court or jury to determine; it was enough for them that the law, which it was their duty to administer was thus written." § GO. Does Drunlcenness Aggravate an Offence.— There are some j udicial dicta in the reports that drunkenness is an aggravation of an offence.* In Mclntyre v. P«opZe,* the court said to the jury: "Drunkenness is no excuse for crime, but rather an aggravation of it." In passing upon this instruction the Supreme court said: "We are aware that text-writers frequently say that drunkenness is no excuse for crime, but rather an aggravation of the offence. That it is no excuse is cer- ! 2 Park. 14 (1823). « 2 Edm. Scl. Vi\B. 88 (1840). » Com. r. Hart. 2 Brcwst. 546 (18C8^. U. S. v. Forbes, Crubbe, 559 (1846); U. S. r. Clay- pool, 14 Fed. Rep. 127 (1882) and casea pasHm. * 38111.515(1865). 74(1 DUUNKENXESH. Notes. tiiinly true, but that It should be held iu law to aggravate crime is not, we con- ceive, a correct proposition. In ethics it is no doubt true, but how it can aggravate a wilful, deliberate murder perpetrated with malice preconceived, and deliberately perpetrated, we are unable to comprehend. Or that it will aggra- vate what, in law, is only manslaughter, if perpetrated by a sober man, into murder if committed by a drunken man, is not, we conceive, true. Or that it increases a minor offence to one of a liiglier grade is not true. Whilst it is not ground for reversing a judgment, it is perliaps calculated to prejudice the de- fendant's case, and a court migiit well omit to give it, or at least to modify it before it should be given." In Ferrell \. State,^ it was sti'u\: " The counsel for .appellant asked of tlie court tlie following instructions, viz. : ' While intoxica- tion is no excuse for crime, yet tlie jury must, in this case, take into consideration the intoxication of tlie defendant in determining whether ho was in a condition to entertain a malicious design.' And also: " In considering the attack (if j'ou find that any was iiuule by the defendant on Scroggins), you will take into con- sideration iiie physical condition of the defendant, and whether from tliat con- sideration he was physically unal)le to use the hoe handle in a dangerous manner.' Both of which the court refused, without pausing to determine whether these instructions were in all respects strictly accurate, or whether they should have been given iuthe precise form in which they were asked; for be this as it may, we think they were entirely sulllcient to call tlie attention of the court to the phase of the case sirggested by them; and if they should not have been given in the precise form in whicli they were drawn, to which, however, we see no serious ol)jection, such instructions as were approjjriate and suitable to the aspect of the case suggested by them should have been given. This, however, was not done. The court not only refused to give the charges asked, but instead thereof instructed the jury, * tluit drunkenness is no excuse or justification, or even palliation for crime, but must be considered rather an aggravation of the offence, and you Avill apply this principle of law to this case.' ', it is a startling idea tl. t the bare fact of one being in this condition when the homicide is committed converts murder in the second into nuinler in the llrst degree, or will authorize If not re(pilre the jury to impose the penalty of death or confinement for life instead l43To.\. 503 (1875). DIM .\K1:NM:SS no ACUiUAVATlON. 747 Intoxicatiiiii no Defence — Kxeoptious to tlie Kiilo. of u term of jours. This would bo direct ly tlic reverse of tlio rule laid down by the Code, iind would make the fact that the; homicide was committed when the perpetrator was iucai)able of a deliberate intention and formed dosifj;u to ta'o life, or do otlior serious bodily injury for want of a sedate mind, au aggravation instead of a nutigatiou of the hcinousness of the offence. "The correct rule upon tlic subject is that, although drunkenness neither ag- gravates nor excuses an act done by a i)arty while under its influence, still it is a fact which may affect both physical ability and mental condition, and may be essential in detorininiug the nature and chui-acter of the acts of the defendant as well as the puri)ose and intent with which thoy are done. Evidently, therefore, the fact of intoxication at the time the niattor in le of forudng a design while in a state of intoxication to such an extiMit as to be incapable of cool reflection, the fact of intoxication is then of the utmost importance: for if it is clearly shown that the purpose to take life hud its inception and was carried into effect wiule the defendant is in a state of mental confusion, wiiether from drink or other cause, wliich renders him incapal)le of calm reflection or of forming a dolilierate design to take life, the offence committed cannot be murder in the tlrst degree." § (!I. Exceptions to this Rule. — To the general rule that voluntary drunken- ness cannot excuse or palliate a crime, and evidence that the prisoner was intox- icated at the time is therefore irrelevant, there are several exceptions, viz. : — § C2, Insanity Produced by Intoxication. — Where the habit of intoxication though voluntary, has been long continued, and has produced disease which has ' People r. Eastwood, i Kern. .■?!!■.'; liishop's (r. I.mw, :;oo, «^ scr/. 748 DKIXKENNESS. Notes. porvertetl or dt'stroyed the mental faculties of the accused so that he is iiicapa- l)le at the time of the commission of the allejjed crime, on account of the disease, of acting from motive, or distinuuisliing rii!;iit from wronjr, when sober — in short, insane — he will not be held accountable for the act charged as a crime committed while in such condition.' In a Delaware case it was said: "The frenzy of drunkeiniess is no excuse, but there is a disease of insanity called mania apotii which Uuiy l^e the result of a condition of the system produced hy habitual intoxication, and yet Is not the frenzy of drunkenness. The condition of insanity must 1)0 taken with this (jualitlcation, that if there be a partial degree of reason, a competent use of it to restrain the passions w hich produced the crime, a faculty to distinguish the nature of actions, to discern the difference between moral good and evil, then the party is responsible for his actions. The question must always be, did lie or did he not know at the time he committed the act that he was doing an immoral and unlawful act? " ' In another case in the .s;u ' ', tiie judge said to the jury: "This brings us to what was said by I'li >t; •' 'or the prisoner in regard to his defence on the ground of mania a poll , i tij that subject the court would say to the jury that if they were satisfied and believed from the evidence which they heard that the prisoner was at the time he conmiHted the act affected with, and lal)oring under an attack of that disease v maiuiy, ant' a brief and temporary nuidness or insanity, the re- sult of protracted imrd drinking of spirituous liquors for several weeks imme- diately preceding the commission of the act, and that he was thereby rendered positively unconscious of what he was doing, and incapable of distinguishing between right and wrong with reference to the act he was then committing, it would constitute in law a complete and entire defence to the whole prosecution and he should be al)solutcly acquitted. But that was a matter of defence not to be presumed, but must be proved like any other matter of defence in this case to the satisfaction of the jury ; otherwise, it could be of no avail to the prisoner."' And in a later case in the same State it was said: "The rule of law being that drunkenness or intoxication is no excuse for crime, unless it is so great as to render the party unconscious of what he is doing at the time." * In Burrow'' s Case,^ tried at the York assizes of 1823, the prisoner being in- dicted for rape, urged that he Avas drunk. Holhoyd, J., charged the jury as follows: " It is a maxim of law that if a man gets himself intoxicated, he is liable to the consequences, and is not excusable on account of any crime he may commit when infuriated by liquor, provided he was previously in a fit state of reason to know riglit from wrong. If, indeed, the infuriated state at which he arrives should continue and become a lasting malady, then he is not amenable." In liennie^s Case,^ the prisoner was indicted for burglary, and urged in mitiga- tion that he was drunk. Holkoyd, J., to the jury : " Drunkenness is not insan- ity, nor does it answer to what is termed an unsound mind, unless the 1 Fisher v. State, 64 Ind. 435 (187S); Bradley v. State, 31 Ind. 492 (1869); Cluck ». State, 40 Ind. 263 (1872); Carter v. Btate, 12Tex. 500 ; Beasley v. State, 50 Ala. 149 (1873) ; O'Brien r. People, 48 Barb. 274 (1867) ; Erwin V. State, lOTex. (A. j. ; 700 (1881) ; and gee post, pp. 873, 874. : State V. Dillahunt, 3 Harr. (Del.) 651 (1840). 3 State V. Hurley, 1 Iloust. Cr. Cas. 28 (1858). * State V. Till, 1 lloust. Cr. Cas. 233 (1867). s Lewin, 75. « Lewin, 76 (1825> i INSA.MTV CAUSKD nV DRUXKENXESS. 741 > Tho Kniilish Casos, derangement which it onuses becomes fixed and continued by the drunkenness being habitual, and tliereby rendering tlie party incapable of distinguishing between right and wrong." In Reg. v. Dixon,^ on an indictment for murder, it being proved that the pris- oner, a soldier, shot his omcer through tlie head, the oidy evidence for the de- fence being that the act was sudden, without apparent motive, and that he had been addicted to drink, and had been suffering under depression. Smith, J., charged the jury that there was no evidence of insanity, and the prisoner was convicted and sentenced to death. In Seg. v. Leigh, 2 tried before Ehle, C. J., in 18GG, the prisoner was indicted for the murder of Harriet Ilarton. It a|>peared that he had been engaged in some service in China, and on his return home had married tlic sister of tlie deceased, and kept a public house. He was a young man of intemperate and irregular habits, and he had entered upon a course of senseless extravagance and dissipa- tion, accompanied with a great degree of eccentricity and absurdity, but with no lack of sense or intelligence when he chose to exercise his faculties, and though he drank excessively it did not appear to affect his head at all. He rapidly ran through his business and was sentenced to imprisonment for wilful injury to his house. When he came out of prison a ruined man, he went down with his wife to Brighton to see his sister-in-hiw, tha deceased, and it appeared pretty plainly from the sequel that his wife had complained to her sister of the prisoner's con- duct, for on his appearance at the house of his sister-in-law, she showed the strongest aversion to admit him, an aversion mixed with apprehension. She knew that he went about armed, and she evidently regarded him as a dangerous character, for it appeared that on the day but one before the murder, he and his sister-in-law were heard talking together, and she was heard to say: "You shan't come in unless you are searched, for you have flre-arnis about you;" to this he replied : " What is that to you, if I choose to carry them to protect my- self?" She said to him: " You shan't come in here; you are a thief, a pirate, and a murderer." Upon this the prisoner turned to his wife, who was present, and said angrily: " Who told your sister, but you?" It was plain, therefore, that the deceased, at this time, regarded him with aversion and apprehension^ and it appeared that It was in this spirit they parted. This was on the Tuesday, the 30th of January, and on the night of the 1st of February, shortly after mid- night, the prisoner went to the house with a loaded pistol or revolver, and at once going up to his sister-in-law, standing within two feet of her, he fired at her through the body. She cried: " Save me, save me! lam killed!" he fired at her again and shot her in the body. His victim fell mortally wounded and died the next day; the prisoner, after his victim had fallen, left the house, and shortly after, two of the chambers of the revolver being still loaded, he resisted apprehension in the most determined manner, and attempted to shoot the police of- fflcer by whom he was arrested. In speaking to the police, he avowed premedita- tion. Forthe defence, insanity was set up; no medical witnesses were called to support it, and all the evidence to sustain it was that of one or two witnesses, who had known the prisoner for some years, and who spoke to senseless and ec- centric extravagances of conduct, pulling his house to pieces, putting his horse in < llOoz, Ml (1869). MF.ftF.915. 7iA) DIIUNKKNNESH. Notes. it (there being no stiibliufi), and tlie lilic. But tliis evidence ratlier sliowcd ex- cesses, tliu result of self-induljJteiice, tliau any natural defect of intelligence, and for some of tlieni, for instance, ills pulling the house to pieces, he was prosecuted and punished. These acts, indeed, were mostly committed when lie was drunk; and aItlioU!;;h au attemjjt was made to show that l)y drinli lie brought on fits of delirium tremens, the evidence failed to show either that this was per- manent, or that there was a lit at the time. On the contrary, the medical evi- dence for the prosecution showed the prisoner's brain was not weakened, and expressions were proved to have Ijcen uttered by him which proved premeditation and design, and the medical otllcer of the government proved that while he was in jail he had shown no symptoms of insanity. Eui.K, C. J., thus sunmied up the case to the jury. " This," he said, ** was an indictment for wilful murder, and the prosecution luul called before them all the eye-witu" scs of t!ie fact, whose evidence clearly proved the commission of the crime, and our law was, that, if a person did an act which amounted to that of- fence, it was tlie duty of the jury to lind a verdict of guilty, nidess the prisoner could show that the crime was not one of murder. The evidence of the eye- witnesses clearly established that while tlie deceased woman, Mrs. Harton, was on her own premises, the prisoner wont close up to her and twice flred at her, causing her death. The defence set up on the part of the prisoner was, that at the time of the fatal act, he was in a state of mind which prevented him from l)eing responsible for his acts. Our law was, that a man was responsible for his acts, unless his mind was in ti state wiiich prevented him from l)eiiig rcsponsi. ble for his acts. If he was conscious that he was doing wrong at the time when he committed the act, tlien he was responsible, The point was, the state of his mind at the time when he committed the act. " Now, no doubt there was evidence of extraordinary conduct some months pre- vious to the time of committing the act, and if he had done it wlien his conduct was of that kind, it would have l)een far more material for consideration; but no one was called to prove that after his coiitluement in the house of correction, he was subject to any fits of insanity. There was some evidence of tits, but tliere was nolliiiig to show of what nature they were. There was evidence of drinking, but it did not make him drunk. There was extravagance of conduct, no doubt, but not of a mind so diseased as to be incapable of distinguishing right from wrong. lie did no wrong to any one up to the time in question. He was his own enemy; his own enemy in respect to money and tlie management of his own affairs, and the destroying of his health. But there is nothing to show that he did not know all tliis to be wrong. The jury must all have met with persons who were unaccountably imprudent in their conduct, but who were well aware that the course they were pursuing was wrong and criminally wrong. The evidence to the conversation two days before the act in question, was worthy of consideration, as showing a probable motive for the act. " The words then used were strong and powerful, and such as miglit raise ill- feeling; the evidence of the conduct before the fatal act, showed perfect sobriety, and apparent possession of sense. The evidence of the police inspector as to what occurred immediately after the fatal act, sliowed a consciousness of an act criminally wrong, for the prisoner was trying to resist arrest, showing that he was well aware that he had committed an act whicli in law was criminal. Then INSANITY CAUSED BY DRUNKENNESS. 751 Tlie American Cases. there was the evidence of*he police, which was very remarkable, and tended to show on the one hand, premedilat Ion and conselonsness of an act ciiminally wrong. Then the medical ollleer of thofinol gave most important cvldiiicc .is to tin; .state of the prisoner while he ol)served him, and stated that lie had seen no traces of insanity. Supposing the prisoner's brain to have become weakened by repeated attacks of delirium tremens, he would be more liable to Insaidty. IJiit the pris- oner's brain had not, it ai)peared, become weakened; and on the contrary he was clear-minded, sensible, and intelligent. Sueii was the evidence, and he re- peated that unless it was made out that the prisoner was not In such a state of mind as to be responsible for his acts, the duty of the jury, was to find him guilty of the act he committed. " The question was, whether he was or was not responsible when he committed the act — not wliether lie was not guilty on the ground of insanity, tliat was an issue far too vague, indellnite, and nndetlned. The issue was, whether or not whi'U he did the act, he was legally responsible; in other words, whether he knew its nature, and knew that it was wrong. The distance, indeed, between the extreme points of manifest mania and perfect sense was great, but they ap- proach by gradual steps and slow degree. The law, however, did not say that when any degree of insanity existed the party was not responsible, but that when he was in a state of mind to know the distinction between right and wrong, and the nature of the act he committed, he was responsible." Verdict, guilty — Sentence, death. In Maeonnehey v. Stale,\ decided in Ohio in 1855, the indictment was for shooting with intent to kill, and in his defence the prisoner gave evidence tend- ing to prove that at tiie time he did the act charged he was laboring under an attack of delirium tremens, and asked the court to charge that delirium tremens, although a consequence superinduced by antecedent continued drunkenness, is a diseased state of the mind, and exempts the subject from responsil)ility for crime, like insanity produced by any other cause. The court refused to so charge, and the prisoner was convicted. On appeal to the Supreme Court the judgment was reversed. " While drunkenness creates no exemption from crim- inal responsibility," said Hartley, J., "and may even exaggerate the turpitude of guilt in some cases, delirium tremens, although the result or consequence of continued intoxication, is insanity or a diseased state of mind which affects re- sponsibility for crime, in the same way as insanity produced from any other cause. The reason that intoxication creates no exemption from crindnal re- sponsibility does not apply to delirium tremens which, although like many other kinds of mania, the result of prior vicious indulgence, is always shunned rather than courted by the patient, and is not voluntarily assumed either as a cloak for guilt or to nerve the perpetrator to the commission of crime." In United States v. Clarke,* tried in 1818 before the United States Circuit Courtsitting at Washington, D. C, the prisoner was indicted for the murder of his wife by sliooting her with a musket upon her return home in the evening from church. The court instructed tlie jury that if they should be satisfied that the prisoner at the time of committing the act charged in the indictment was in such a state of mental Insanity, not produced by the immediate effcts of intoxi- 1 5 Ohio St. 77. 2 2 Crancli C. C. 158. 7r>2 DIIIINKENNE88. N'otoH. cntin^ drinks, as not to linvc bcon conscions of tlic i^oral tiirpitndu of tho act, tlu'.v slioiihl llud him not .millfy. Tlio jury found liini yuilly, and in; \va^ kcu- tcnced to di-utli. In Onllihcr v. Gommnnwralth,^ It was said: " Tiic Hcvonth Instruction that ' drunlvonnoMS can novcr l)c received as n fjrouud to oxcuso or i»ailiuto a crime ' was accordlnij to tlu; doctrine recojunlzed i)y tiiis court in tlie case of Smith v. Commonwealth,^ delusive and erroneous. Intoxication may stidtify and partially denjonlzc its victim, dethroning reason, ronsiuf; volcanic passions, and either paralyzing or pervertini; the will; and therefore unless i)rongliton for a malicious purpose it may be when disabling entitled to some inlhience on the questions of malice and free volil Ion. When and how far It should have any such influence must depend on its motive, its degree, and its effect on tho mind and the passions. This qualllled doctrine .seems tons to be dictated by policy and humanity, and sanctioned by reason and modern authority, and was, accordingly, adjudged to be the law in the case just cited." In State v. McGoni'ja},^ the prisoner was indicted for larceny, the defence be- ing that he was so drunk as to render him irresponsil)le. Woottkn, J., charged the jury "that drunkenness was no excuse or palliation for a crime; but drunkenness long continued produces the disease of mania a potn, which de- prives the party of reason and incapacitates him from distinguishing between right and wrong. In this stage, It becomes a kind of insanity. Tho jury would have to distinguish between the mere frenzy of drunkenness, and the flxed insan- ity produced by continued dissipation. If the prisoner was In the latter condi- tion, he could not be held responsible, otherwise he ought to bo convicted." The prisoner was ac(iultted. In Jical V. People,* the prisoner being indicted for the murder of John Smedick, evidence was offered at the trial on tho part of tho defence to show a habit of excessive drinking l)y Real for days continuously, followed by periods of delirium and sanity, — a condition of mind consequent upon drunkeimess. The trial judge ruled that delirium tremens at or about the time of the homicide, might be proved, but not tho general habit of drunkenness or Its consequences, to which ruling the prisoner's counsel excepted. On appeal this ruling was afllnned. 'There was no error," said the Court of Appeals, " In excluding proof that the accused was In the habit at times of drinking to excess, and of the effect upon his mind at times produced by this habit. The evidence in this respect was properly confined within a period of a few days of the transaction. Within this period the accused was permitted to give evidence tending to show that his mind was temporarily unsound, or that he was delirious from this cause." "lu Schlenker v. State,^ the following instruction given by the court on the trial was complained of on appeal: "Settled insanity, produced by Intoxica- tion, affects the responsibility in the same way as Insanity produced by any other cause. But insanity Immediately produced by intoxication does not destroy responsibility where the patient, when sane and responsible, made himself voluntarily intoxicated." This Instruction was unanimously approved on appeal. " la the case of State v. Hundley,^^* said the court, " it appears that the court I 2 DUT. 183 (186S). » 1 DUT. 224. * 6 Harr. 510. • 42 N. Y. 270 (1870). • 9 Xeb. 241 (187V). • 46 Mo. 414. INSANITY (ArSKI) llV DIM NKKNNI.SS. 7:).", Till' Aiiicrifim < "ascs. liadliistniclc'dtlic jury ' tliiil If llicy believed from Mie evidence that tiie dofonrldnt was laijoriii^ under a teni|)orary freu/.y or Insanity at tiii! time of the killing of Hoyer, wiiich was the linniediatu result of Intoxleatini? li(|Uors or iiarcoties, he was jiuilty.' And thu court, connnentini^ upon this instruction, said: 'Tins Instruction was nnol)jectional)le, for, us we liavi; alrealish, was a mere temporary frenzy or condition of irresponsibility on tlie part of the prisoner. There is, therefore, in this matter no ground of complaint. Error is alsoalle;:cd because of tlie refusal of the court to {I've several instructions to the jury refpiested on l)ehalf of the prisoner. By the first of these it was sought to make his voluntary intoxication, under certain circumstances, a complete excuse for the homicide. There was no error in this refusal, for the court, as we have already seen, had already charged upon this point, and laid down the law correctly, recognizing the well known and salutary maxims of our laws, that crimes, committed under the influ- ence of Intoxication, do not excuse the perpetrator from punishment." * In Bailey v. State,' the prisoner Avas indicted for grand larceny. The following instruction was given on the trial: "It is a settled principle that voluntary drunken- ness Is not an excuse for a criminal act committed while the intoxication lasts, and being its immediate result. Such drunkenness is, in itself, u wrongful act, for the immediate consequences of which the law will hold the party by con- struction guilty of such intent. This principle applies even to a case where the party is so besotted by liquor as to be irrational at the time of the commission of the crime. But when the act is performed by an insane, but not at the time an intoxicated person, which if committed by a sane person would be a crime, such act of the insane person is not held to be a crime, though the insanity was remotely produced by previous habits of gross intemperance." On appeal this was held wrong. "The law, as it was evidently intended '<> be stated by this instruction to the jury," said the court, " is in full accord v, :tli the rulings of this court, and with the weight of authority; but we fear that in the case under consideration the jury may have been misled by an inapt use of words in the latter part of the instruction. The bill of exceptions states that ' there was evidence before the jury tending to show that the defendant was, at the time of the commission of the offence, intoxicated, and his mental faculties seriously impaired by a long and habitual course of intoxication and drunkenness.' If from this evidence the jury found that the defendant's mind was so far destroyed by his long continued 1 Beck's Med. Jurii., Tol. 1, p. 333. 48 26 Ind. 432(1366). 754 niaXKENNKSS, N«)tt(H. Imblt of ilrmikcniu'Hs as to ri'iidcr liiin niontally iiironipctpnt, Ititcntlonally and knowiiiyly to coiiuiilttlu! lanudiy, tlu-n tlio deft'iiilant should have bi'on acfuilttod, altlioiifjh lie was Intoxicated at the tlino hu took the jiropcrty. The present In- toxieatlon must not be the cause of tiie mental Incapacity; but if that mental Incapacity already exists present intoxication will not render the person liable. We are not clear that the lan^uai;c Inadvertently used l)y the court m' ■• 'lot iid- niit of a different construction, and it may, therefore, have misled th ." § (If!. Deerrees of Murder — Premeditation and Deliberation. — Whore the crime of nnirder is divided by statute into decrees, the hiizlier decree reciuiring |iroof of delil)eration and premeditation, evidence of intoxication is held admis- sible upon the (piestion whether thu act was committed with these requisites.' In L'inrrrtdn v. People,'' tliu prisoner was indicted and convicted of the mur- der of his wife. On appeal to the Supreme C^ourt It was .said: "The remaining request la in reference to the mental condition of tho pri.sonei arising from his In- toxication, which the Tlecorder was re<|iiested to instruct the jury might take into consideration in determining whether he was al)le to form an intent to kill, or a premeditated design to effect death. The evidence established that tho prisoner had been drinking intoxicating licpiors for some days; and that he was very much intoxicated at one o'clock, some four or live hours before the probable time when the killing occurred. Carron, one of the witnesses, saw him go out of the house, leaving his wife there dead from violonce which he had inllictc ami he re(|uired no assistance to walk ; neither doing anything to call for a '•k, so faras It appears from tho evidence, nor making any observation; b wing sufllcient to conceal his crime for several hours, and until her death was discov- ered, and the alarm given, at or about ten o'clock in the evening. After passing the evening at different i)ublie houses from the time he left his own rooms after the murder (between six and seven o'clock), until ten o'clock, ho went to the residence of the sister of his deceased Avife, and informed her that his wife was dead. He then returned to his own rooms, and neither did nor said any- thing tending to show any want of his usual Intelligcuco or understanding, so far as ai)poars from the evidence. There are few instances of persons who have, in a state of intoxication, taken the life of anothrr who could refrain from saying or doing something which would tend to inculpation for nearly four hours after the commission of the act. There Is no evidence tending to establish the ex- istence of any mental disorder or aberration at the time of the offence committed. There was no evidence to show that tho will of the prisoner was not entirely the regulator of his conduct. The rule appears to bo that drunkenness is no excuse for crime, and that the person who is voluntarily in that condition must take the > Jones r. State, 29 Ga. 594 (1860) ; Hopt v. People, 104 U. .S. 6:!1; State v. Johnson, 40 Conn. 136 (1873) ; People v. Lewis, 36 Cal. 621 (1869) ; People v. Nichol, 34 Cal. 212 (1867) ; People V. King, 27 Cal. 507 (1865); People v. Williams, 43 Cal. 344 (1872) ; I'eoplc v. Cclcn- cia, 21 Cal. 544 (1863) ; Curry v. Com., 2 P.ush, 67 (1867) ; Swan r. State, 4 Humph. 1.S6; Pir- tic V. State, 9 Humph. 663 (1849); Hailc v. State, 11 Humph. 156 (1860) ; Cart^vright ». State, 8 Lea, 370 (1881); Lancaster v. State» 2 Lea,S76 (1879) ; Schlencker ». State, 9 Neb. 241 (1879) ; Kelly v. Com., 1 Grant's Cae. 484 (1868) ; Kcenan v. Com., 44 Pa. St. 66 (1862) ; Jones V. Com., 75 Pa. St. 403 (1874) ; Colbath V. State, 2 Tex. (App.) 391 (1877); People v. Odell.l Dakota,197 (1875) ; see/ws*. pp.873,874. - 6 Park. 209; 50 Barb. 206 (1867). AS All'K("riN'(» DKUKKK <»r < IM.MK. Hi l'(()|ilf r. Uiittliifi. conHCMiui'iiccs of Ills own nets.' It appoars, too, from tlic same casi, tUal In- t()xl(;atloii iii;iy he adverted to when? ' you would Infer a malicious intent,' or where th(! accused has l)oen a^^ravated hy the (•(mduct of tlio deeeased, hut not where the kllllm^ was caused hy the use of a danjierou.s instrument. The evi- dence of inloxleatlou Is admlssli)le In every trial for murder, l)eeausf it may tenet to c;ist lij^lit upon the acts, oljservatlons, or cireumstanei's atleudlni^ the (cluing. lutoxleatlon must result In a fixed mental disease of some eontluuancc or duration before it will (!dk,,I,, after reading to the jury extracts from the earlier cases of People v. Eogrrs,'^ and Kenny v. People,* charged them as follows; " It is said in his behalf that he was not conscious of what he did do; that ills mind had become cra/.ed, and the brain, wliieh ordinarily directed and controlled all his movements was fired by rum, so that In; is not res|)onsil)le for the act he did do. However strong the argument may be In the forum of conscience, in tlie dispensation of criminal justice it can find no place. It would not do to expose society to a doctrine .so pernicions as this. It would never answer for us to say, that a party who, in a drunken freak comes into your house and murders you whilst you are Iiarmless and inoffensive sliould go free and unpunished. Life is too sacred and too dear, too valuable a gift from tlic Father and Source of all life to be taken In this manner. The books contain but one rule ujjon this question from the earliest time down to the jiresent, and that is, if a person voluntarily becomes drunk he shall be accountable for what he does wliile in that condition. This is for the purpose of preventing men from becoming drunk; from putting themscdves in a condition where they sliall be like beasts preying upon society. Human safety, human life, and the protection of the citizen requires this rule. Without this, society could not exist." After reading an extract from People v. Rogers, the judge continued: — " In the good sense of all this which has been said by our highest court, the judgment and conscience of every right-minded man must concur. It would never do to proclaim from this court-room, that he who voluntarily takes that which deprives him of reason, and makes him a wild beast, sliall, if he violates the law whilst in that condition, suffer none of the consequences of his crime. Such a person has first broken the obligation which he owes to his fellows in becoming drunk, and when in that state he perpetrates a crime, it is no excuse but rather an aggravation of the offence. That is the law. It should be heeded here and by all the public upon whose ears these words shall fall. At common- law, then, if you found these facts as I have detailed them, and if you found the intent as the law requires you to find it, this man would have been pronounced guilty of murder, and his life would have paid the forfeit of the crime which he has committed. More recently, however, in this State, and in the year 1873, the Legislature have seen fit to divide the crime of murder into two degrees, the ' People V. Rogers, 18 N. Y., » 49 How. I'r. 392. ^ 18 N. Y. 9. * 31 N, Y. 330. 7r)() DRUNKENNESS. Notes. one where the intent to take life was duliberatc intent; tlio otlicr, when there is a single intent without the deliberation and coolness which now marks the former, and which is the element making the crime of murder in the first degree. For example if a man deliberately, plans the death of a fellow-being, and lays in wait for him, and when the person comes along, suddenly springs upon and kills him; or where it is effected by poison given by degrees at different times and on different occasions, you can readily see tlie difference between such a case and that of a person who under the intent of an excitement strikes a blow. You can jit once see, there is a wide moral difference between these two classes of crimes. The law has now marked and defined the two by a different species of punish- ment. I will read you our present statute." Judge Wkstbuook, read the statute as follows-. "When perpetrated from a deliberate and premeditated design to effect the death of the person killed or of any human being." The charge continued : "That is to say not only must the homicide be premeditated, but it must be deliberately premeditated. In the coolness of the blood, in the exercise of the judgment and the reason the slayer should plan and determine, if the act is to bo declared murder in the first degree. "In other words, to convict now of the crime of murder, in the first degree, to the element of intent must be added that of deliberation, and when this is want- ing the highest grade of the crime has not been attained. Where the intent to slay is present, but the " deliberate and premeditated oosign " is absent, the crime is only murder in the second degree. This is the change our statute has made. Formerly, in every case of homicide, where the intent to kill was present, and there were no circumstances rendering the killing justifiable, the crime was murder, of which there was but a single grade, and but one penalty — death. Now the grade of crime which forfeits the life of the slayer, has only been reached where the jury find that the intent is the result of deliberation and premeditation. " In fixing the grade of crime of which the prisoner is guilty, the evidence of his intoxlv-.icion becomes verj' important, and is to be carefully weighed. While the law justly holds the offender responsible for the crime of murder, though he was drunk when the act was committed, it will not be guilty of the injustice of say- ing that when he was crazed, furious and wild from intoxicating drink, and the act was committed under the influence of a drunken frenzy, that it was deliberate as well as premeditated. The coolness of the intellect is gone, and a person in that state, ordinarily, is not capable of the deliberation which must mark this crime. In other words, it is the premeditation of excitement and not that of deliberation. I will read to you again, to give my views more fully, from Wharton's American Law of Homicide : — ^ "'Intoxication when existing to a sufficient extent to prevent deliberation, lowers the offence to the second degree excepting the case of murder which happens in consequence of actual or attempted arson, rape, robbery, or burglary. Says Judge Lewis, now of the Supreme Court of Pennsylvania, a deliberate in- tention to kill is the essential feature of murder in the first degree. When this ingredient Is absent, where the mind from intoxication, or any other cause, is deprived of its power to form a design with deliberation and premeditation, the offence is stripped of ihe malignant features required by the statute to place it « ' p. 369. AS AFFECTING DEGREE OF CHIME. 757 The Missouri Doctrine. on the list of capital crimes; and neither courts nor juries can lawfully dispense with what the act of Assembly requires.' " Judge Wf.'jthkook continued: " I charge you that to be the law of this case. Whilst you cannot receive the evidence of drunkenness to excuse the crime or to make it less than murder in the second degree, yet you can receive it for the purpose of showing that the party did not deliberately premeditate. Now, what is the evidence upon this question? It would seem that the day previous to this occasion the prisoner had been at work for Mr. Hasbrouck. On his way home he took probably his tirst glass of liquor. The next morning at eight o'clock he was in a nervous condition, sitting in the bar-room, at Steen's, and from that hour through the entire day, he seems not to have been about his ordinary busi- ness, but simply upon ' a spree; ' he became wild, furious, nervous, active, so drunk that he staggered against the fence, and at the time he was leaving the Saxton House, for the purpose of getting the weapon, he was so much under the influence of liquor that he could scarcely walk. After obtaining the weapon he went to the Shaffer House, and from his conduct and actions there I leave it to you to say whether he was or was not in a condition of mind or body during which he could deliberate and premeditate. And whilst this is a question of fact, which you must decide, I submit to you, nevertheless, the proposition whether the undisputed evidence in this case does not clearly mark this offence as one of murder in the second degree only. Of course, the whole qviestion is with you. The prisoner was found guilty of murder in the second degree. In Norfleet v. State,^ the court instructed the jury that drunkenness might be considered by them "for the purpose of determining whether the killing is re- duced from murder in the first degree to murder in the second degree, but it cannot be so considered by the jury to determine whether the killing be reduced below murder in the second degree, or from that to manslaughter." In the Supreme Court it was said: " The principle as here stated, with reference to the facts of this case is correct, and in strict accordance with the doctrine of the case of Firtle v. State,^ which is so full and explicit upon this general subject that nothing more can be added." In Missouri intoxication or drunkenness can neither excuse nor extenuate a crime, and cannot be taken into consideration by a jury for either of such pur- poses, " However differently the question may have been elsewhere determined we are not disposed to overthrow the rule thus established in this State, believ- ing it to rest upon reason and authority, and that any departure from it Avould neither be in the interest of a higher civilization, nor promotive of the best interests of society, nor conducive to the ends of justice." 3 Therefore, drunk- enness will not repel any inference of malice and premeditation arising from other facts in the case, or mitigate the offence to a crime of a less degree.* In Sex v. Griridley,^ which was tried before Holkoyd, J., at the Worcester summer assizes in 1810, tlie learned judge said that "though voluntary drunk- » 4 Sneed, 345 (1867). « 9 Humph. 663. 3 State r. Edwards, 71 Mo. 324 (1879), cit- ing State V. Harlow, 21 Mo. 446 ; State v. Cross, 27 Mo. 332; State v. Hundley, 46 Mo. 416; State t'. Dearing, (» Mo. fi.30. < State I'. Ucaiing,65 Mo. 530 (1877). ■' MS. opinion cited in 1 Kusscll on Crimes, 12. 758 DRUNKENNESS. Notes. cnness cannot excuse from the commission of crime, yet where, as upon a charge of miirtlor, the material question is whetlier an act was premeditated or done only with sudden lieat and impulse, the fact of the party being intoxicated is a circumstance proper to be talieu into consideration." Sixteen years later this ruling was cited to Park, J., by the counsel for the prisoner in liex v. Carroll.^ There the prisoner was Indicted for the murder of Elizabeth Browning. Park, J., in instructing the jury, referring to the ruling of Holroyd, J., in Eex v. Grindley, said : " Highly as I respect that late excellent judge, I differ from him, and my brother Littlkdaij5 agrees with me. He once acted upon that case, but afterwards retracted his opinion, and there is no doubt that that case is not law. I think that there would be no safety for human life if it were to be considered as law." The prisoner was found guilty and executed. In Connecticut it is held that intoxication does not as a matter of law disprove the existence of malice ; but it is evidence to show that such malice did not exist. In the case of murder in the second degree, wliich rests on implied malice, the jury may find the existence of malice, though the prisoner's condition at the time disproves express malice.'^ It is held in Illinois that as it belongs to the jury in that State to fix the pun- ishment for murder which may be eitlier death by hanging or imprisonment for life, it is computent to prove at the trial that the accused was intoxicated at the time of the homicide. " It is important," said the court, " that all the concomi- tant circumstances of the act committed — the condition of the prisoner at the time among the rest, as tending to give cliaracter to his conduct, so far as they may be regarded as part of the res (/esto, should be laid before the jury that as near as may be they may see the crime as it is — the precise complexion of it — in order that they may intelligently graduate the punishment. But proof of intoxication at other times is properly rejected." ' § 64. Relevant on Question of Intent. — So evidence of intoxication is rele- vant on the question of intent.* " Drunkenness certainly does not excuse or palliate any offence. But it may produce a state of mind in which the accused would be totally incapable of entertaining or forming the positive and particular intent requisite to make out the offence. In such a case, the accused is entitled to an acquittal of the felony, not because of his drunkenness, but because he was in a state of mind resulting from drunkenness, which affords a negation of one of the fcts necessary to his conviction.* If at the time of taking property, a person is so under the influence of intoxicating liquor tliat he is unable to form 1 7C. A P. 145(1835). s State t>. Johnson, 41 Conn. 584 (1874). 3 naffertyv. People, 66 111. 118 (1872). < Roberts v. Peoi)le, 19 Mich. 401 (1870) ; State r. Bel!, 29 Iowa, 316 (1870) ; State v. Maxwell , 42 Iowa, 208 (1S7.'5) ; Wenz v. State, 1 Tex. (App.) ,31'. (187(5) ; Loza v. State, 1 Tex. (App.) 488 (1877) ; U. S. v. Bowen, 4 Cranch C. C. 604 (1835) ; State r. Coleman, 27 La. Ann. 691 (1875); Plate v. Triva.'^^, 32 La. Ann. 1086 (36 Am. Uep. 2',)3) (1880). Con/ra, O'llerrin V. State, 14 Ind. 420 (I8C0) ; Dawson r. State 16 Ind. 428 (1861). As to the relevancy of drunkenness uu the quetitioii of malice see Id.; Nichols v. State, 8 Ohio St. 435 (1858); Shannahan v. Com., 8 Bush, 463; 8 Am. Uep. 465 (1871) ; and see post, p. 874. <' Mooney v. State, 33 Ala. 419 (1869), citing Swan r. Slate, 4 ilumph. l:iO; Pirlle v. Slate, 9 Ilumph. fi()3 ; Pignian v. State, 14 Ohio, 55.') '< U. S. r. Kondcnbush, Baldw. 514; Pennsyl- vania V. McFall, Add. 256 (1797). RELEVANT ON QUESTION OF INTENT. 759 The American Cases. a felonious intent, he cannot be guilty of larceny.* And •where a person Is in- dicted for voting twice at an election, his druulccnncss is relevant on the ques- tion of intent.'" In State v. Schingen,^ the prisoner was convicted of stealing property from his master. In the Supreme Court it was said: "There was some evidence which tended to show that the defendant was intoxicated at Oshkosh, where he offered the property for sale. And the court was asked to charge the jury, if tliey found that lie was sober at the time the property Avas delivered to him and that he then had no intention to convert it to his own use, but afterwards became so intoxi- cated that he did not know the consequences of his acts, and while in this con- dition disposed of, or offered to dispose of the property, that they should dnd him not guilty. The court refused to give this instr iction, but charged the jury that the intention of the defendant in tlie commission of tlie act was the gist of the crime of larceny, and that a person who, from drunkenness or other causes, may have lost his understanding, cannot in contemplation of law ho accountable for his intention; that although drunkenness was no excuse for the commission of many crimes, yet it was of great importance us affecting the question of in- tention, and therefore, if they should find that the defendant was so drunk as to be unable to form any intention at the time he offered to dispose of the prop- erty, he should bo acquitted, unless they were satisfied of the further fact that he had formed the intention to steal while in the possession of his reasoning powers. We are satisfied that tlie Circuit Court cliarged the jury upon the point of drunkenness quite as favorably to the defendant as the law would allow. The jury were told that if tiie defendant, at the time he offered tlie property for sale, was so drunk as not to know what he Avas doing, tlien he should be acquitted, unless the evidence showed that the felonious intent existed when he was in the full and undisturbed possession of his mental faculties. We certainly think there was nothing in all this of wliich the defendant can complain." In Henslee v. State,* where the charge was larceny in stealing a gun, the jury •were instructed that •* if the defendant was so much under tlie influence of •whisky as not to be conscious of wliat he was doing when he took the gun, tlien he would not be in a condition of mind to be guilty of larceny. This charge was said by the Supreme Court to be more favorable to the prisoner than he was en- titled to, in view of the fact tliat he Avas voluntarily intoxicated, and there being nothing to show tliat he suffered from delirium tremens or other mental incapac- ity." In State v. Carvey,^ the defendant's counsel requested the court to charge that "if Garvey was in such a state of mind from any cause tliat he did not know whu,t liu «,, as doing" they could not convict. The instruction was given with tiie qualification that "if the defendant did not know what he was doing from being in a state of insensibility, the jury could not convict, but otlierwisi', if from excitement or madness, tlie immediate consequence of indulgence in strong drink." On appeal this was held to be (>rror. " It does not appear," said AVii.- sox, C. .T., wlio delivered the opinion, " tliat Garvey became intoxicated with a view to the commission of tlie crime, or that before Ids intoxication he hud any 1 Wood V. State, 34 Ark. 341 (187!)). '-' l'coi)le r. Man-is, 29 Cal. 678 (1866). soe .state v. Welch, 21 Minn. 22 (1874). 3 20 Wis. 74(1865). Hut * Sllcisk. 202 (1871). <> 11 Minn. 1.54 (1866). 7(U) D HUN KEN NESS. Notes. intention of committinij; sucli crime. Tlie existence or non-existence of tlie inulicions and felonious intent clmrsed was tlie principal qtiestion to be passed upon by the jury. If Garvey was so drunk as not to know what he loas doing then lie had no intention ; he was incapable of forininj? an intention, and any evidence showing this fact should have been admitted by this court. Such intention must, in fact, exist to justify a conviction under the statute of 18G4. The charije of the court in this respect was, tlierefore, we think, erroneous. It in not pretended that intoxication is iji any case an excuse for crime, but when the intention of the party is an element of the crime, insanity of any kind or from any cause which renders the party incapable of forrainy any intention, and which is not voluntarily induced with a view to the commission of a crime while in that state, may be given in evidence to show that he is not guilty of the specillc crime with which he is charged. It would not fol- low because the accused was, in this case, intoxicated, that he did not intend great bodily harui to Callman ; he may have been intoxicated and still acted with this criminal intent. This was for the jury to decide froff. all the evidence in the case." • In People v. IlammiU,^ the prisoner was indicted for the murder of his wife, and it appeared that he was in the habit of using intoxicating liquors, and was under their influence at the time* The court charged the jury as follows : — " The case now to be committed to your hands is an unusually painful one. The prisoner is not a man who has been familiar with vice or hardened by crime. Though in the humble walks of life lie is proved by men of the highest standing who have known him well, to have sustained the most irrcproachal)lc character for honesty, integrity, and industry, and on all occasions, except when infuriated by intoxication, for kindness and attention and affection to all his family. With that single exception, no better character in all these respe 3 Park. 25 (1855). riJOVOCATION — SKLF-DKI'ENCE. 767 l)riinkiMiii<-ss liclcvaiit. uch 11 Htate I'cilvliig.hi imtrrfeits; Sisliig them oliiij; to the ^iu^hiin on '. Tilt! (le- iglitst do- ll's of tills inlon, that n by artful '■ bad, ami lot cxtfiid •ased, and ht'ii knew liomas^ it ciii littered dninken- f there Is s inannor iirded, for iiiliig the »lc on the t threats, been ut- icoines a y are but drunken ions and r the law even ex- ign mur- vas said : oner -vvas because ly enter- ens that ation or deliber- VQ come § (!7. Drunkenness — Relevant on Question of Provocation — Rex v. rhom&B.— ln III x\. Thimm,n\\HK, H.,«ald to llie jury: "I iimst also tell you that If a man makes himself volimtarlly drunk, that It Is no excuse foraiiycrlmo lio may commit whilst he is so; In; must take the <-()iise(|Ucii<;es of his own vol- untary act, or most crimes would othiTwiso he unpiiiiishcd. IJut (iriiiiki'nness may 1)0 taken into consideration in cases where what the law (kerns sulllcient lirovocatlou has been given, because Mie (|uestion Is, in such cases, whether the fatal act Is to be attributed to the passion of anger excited by the previous pro- vocation, and that passion Is more easily excitable In a person when in a state of intoxication than when he is sober." In a Delaware case; it was said: " When It was proved to the satisfaction of ilio jury that the crime was committed by the accused in a state of intoxication or drunkenness and upon a certain jirovocatlon given him by the party killed, and wlien a smaller provocation may be allowed to alleviate the offence, and reduce it from niurder in the (list to miinier In the second degi , under the statute, owing to the well known fact lliat a person in that condition Is more liable to l)e suddenly heated and blinded to a higher degree by angry passions than a sober man would be under the same or a similar provocation." '^ \n, Tones \. »S7a«e,'' it was held that the jury may consider the drunkenness of tlie accused at the time of the killing not to excuse or mitigate or exteiimite ids crime, but to assist them in deciding when there was a i)rov()cation, wliether the intention to kill preceded the provocation or was produced by it. § (J8. Drunkenness— Relevant on Question of Self-Defence — Marshall's Case. — In Jfars/iaW's Case, * tried before Pauk, J., in 18;{0, on an indictment for .stabbing, the judge told the jury that they might take into consideration, the fact of the prisoner being drunk at the time, in order to determine Avhetlier ho acted under a bona fide apprehension that his person or property was about to be attacked.* To justify taking life in self-defence the circumstances must i)e sncli as to ex- cite the fears of a rea.sonable man. The law makes no discrimination in favor of a drunkard. Therefore, in a Georgia case, it was held tliat it was proper to re- fuse a cliarge in these words: "If tlie jury Ixdieve from the evidence that the prisoner was very drunk * * ♦ and that l)eiug in a state of intoxication, and very drunk, killed J., through cowardice, alarm, or fear that a great botliiy in- jury was about to be inflicted upon him, then he is not guilty of murder." « In Reg. V. Gamlen,'' the prisoner was indicted for assault. The charge arose out of an affray at a fair, and there was ground for supposing that he acted under ap- prehension of an assault upon himself. All concerned were drunk. Crowdkr, J., charged the jury that " Drunkenness is no excuse for crime, but in consider- ing whether the prisoner apprehended an assault on himself you may take into account the state in which he was." He was acquitted. 1 7 C. & P. 817 (1837). 2 Slate V. Hurley, 1 Honst. Cr. Cas. (?808) ; State v. McCants, ante, p. 722. 3 29Ga. 607 (1860). * Lewin, 76. 6 In Goodier's Case, 1 York Sammer Aa- 28 sizes, 1831, Park, J., directed the jury lo tlie same elfect. • Golden v. State, 25 Ga. 627 (1868). » IF. &F. 90(1858). 768 DUUNKENNKSS. Notes. § ()!) . Dninkennesa Created by Another to Cause PrlBoner to Perpetrate the Crime. — In liurtholomcw v. I'cupli-,^ It wiis siild : " I'lulat Iff In error wiis convicted by tlio judgment of the court behnv of tho crime of larceny. It was not eerl- ously contested that ii larceny was committed, or that plnintlfl in error was connected therewith — the property stolen being found in his possession. The defence was, ut the time of the taking, and for some hours afterward, plaintiff in error was under tlie intlueucu uf intoxication caused by the fraud or con- trivance of another person for tho purpose of inducing him to commit, or to aid in committing, the larceny. Our statute provides: ' Drunkenness shall not be an excuse for any crime or misdemeanor unless such ilrunkenness bo occa- sioned by tlie fraud, contrivance or force of some other person for tho purpose of causing the perpetration of an offence.' * At connnon law where It required a particular intent in the doing of an act to constitute crime — as, for instance, larceny, where the intent to steal must accompany tho act of taking, It Is held it may be shown in defence that the party charged was intoxicated to that degree that he was incapable of entertaining tlu; intent to steal, and that ho neither then nor afterwards yielded It the sanction of his will. It was, therefore, competent to make the defence relied upon." 1104111.006(1882). * B. S. 1874, b. 395, § 19. 'petrate the IS convictea IS not scri- i error was sslon. The rd, plaintiff ud or con- nmlt, or to ss shall not ss bo occa- ho purpose t required a •r instance, :, It Is held that degree lelthcr then competent CHAPTER IV. KLEPTOMANIA AND SOMNAMBULISM. KLEPTOMANIA — CHARGE MUST BE SPECIALLY DIRECTED TO DE- FENCE MADE. LooNEY V. State. [10 Tex. (App.) C20.] Court of Appeals of Texas, 1881. Hon. John P. White, Presiding Justice. " C. M. WiNKLKK, ) " James M. Hurt, r"'^^**' 1. Kleptomania is a recognized symptom of insanity. 3. Jury should be Specially Chargred as To. — On a <;rial (or theft, the defence being the propensity to steal Icnown ua lileptomania, and there being evidence tending to sustain it, the court should charge the jury specincally on this point. A submission of the nsual test of the prisoner's ability to distinguish between right and wrong is insuffi- cient. Appeal from the District Court of Montgomery County. Tried be- fore Hon. James Mastekson. Looney was indicted for the theft of clothes and other wearing ap- parel and other articles from the store of W. T. Nobles. On being apprehended he had confessed his guilt, saying in explanation that from his boyhood he had been afflicted with an ungovernable habit of appropriating articles of property belonging to others, many of them articles for which he could have no possible use, such as photographs of entire strangers, combs, brushes, books, etc. He could not tell how, when or where he came into possession of them. Several witnesses testified that he was not of strong i}iind, and was, in their opinion, in- capable of distinguishing between right and wrong. The court in- structed the jury (1) that the piisonci- could not be convicted if he was unable to distinguish between right and wrong; (2) that if the prisoner did " take the goods of "NV. T. Nobles, at the time and in the 49 (7f)!>) 770 KLEPTOMANIA. J.ooiU'v I'. Slate manner charged, but at the time of committing the act was laboring^ under such a defect of reason ad not to know the nature and quality of the act he was doing, or if he did know it, that he did not know that he was doing wrong, then you will acquit." The jury found the prisoner guilty and assessed his punishment at a term of two years in tlie penitentiary. J. It. Peel, for the appellant. //. Chilton, Assistant Attorney-General, for the State. Winkler, J. — This appeal is from a judgment of conviction of theft of property over the value of twenty dollars. From the evidence and the charges of the court, given and refused, we are led to conclude that the only defence relied on in the court below was kleptomania, and if there was error in the charge of the court, and prejudicial to the right? of +he defendant, under tliis defence and the testimony on that sub- ject, such error is to be found in appl3'ing the facts to t!ic general sub- ject of insanity rather than in applying it directly and specifically to tbfe peculiar condition of the defendant's mind, developed by the proofs ; and in this respect we incline to the opinion that the charge, taken as a whole, was defective, in not giving to tiie jury a special charge on the subject of this peculiar symptom as it relates to the general subject of insanity. It is said that kleptomania occurs not unfrequently as a symptom in mania and the mental confusion incidental to it, and in depression and delirium, in which its consideration involves less difficulty But where it occurs in cases of concealed insanity, its discovery is not easy.i To our minds, what has been said by EUinger, and quoted in the authority jnst cited, in the nature of pr:' Lical direction?, may well be considered in connection with the case and the subject under consideration, not as law, but as illustrating tlie propriety, if not the necessity, of a charge to the jury on this peculiar feature of the case, as follows: 1. In the earlier developments of mania, kleptomania is an important symptom ; it will, however, be found accompanied more or less by other symptoms of incipient derangement, such as a general alteration in the accus- tomed mode of feeling, thinking, occupation and life of the individual, a disposition to scold, dispute and quarrel, to drink, and to wander about busily, doing nothing, and the bodily signs of excitement (rest- lessness, want of sleep, rapid pulse, etc.). 2. Kleptomania continues after the disease, to all external appearances, has ceased. Here the disease also has not yet terminated, which can only be indicated by a 1 'NVharton & Stillc'e Med. Jur, sect. 193. KLEPTOMANIA. 771 When a Defence to Crime. laboring uality of low that lent at a , of theft ence and hide that a, and if he right? that sub- eral sub- fically to } proofs ; ken as a ;e on the ibject of iptom in sion and lit where 3y.i To luthority nsidered ii, not as a charge . In the mptom ; rmptoms e accus- lividual, wander nt (rest- ontinues lere the ted by a return of the original state of thought and feehngs. (This calls for a continued course of observation by tlie examining pliysician. ) 3, There arc distinct but occult hallucinations at work. Those are to be assumed, the more readily, the more bizarre and exclusive is the desire to steal, and the more the objects to which it is confined are out of pro- portion to the property of the thief ; and particular attention should be paid to tlie existence, present and past, of other symptoms of insan- ity." An instance of this inordinate propensity to steal is cited in this connection from Dr. Rush, who says: " In one instance a woman was exemplary in her obedience to every command of the moral law, except one — she could not refrain from stealing." "'"'''e make those further quotations from this authority as indicative of this peculiar symptom of insanity: " It would be difficult to prove directly that this propensity, continuing as it does through a whole life, and in a state of apparently perfect health, is, notwithstanding, a consequence of diseased or abnor- mal action in the brain, but the presumptive evidence in favor of this explanation is certainly strong. First, it is very often observed in abnormal conformations of the head, and accompanied by an imbecile condition of the understanding. * ♦ * _A.n instructive case has been lately recorded, in which this propensity seems to be the result of a rickety and scrofulous constitution." We mention these peculiarities in order to show the fact that klepto- mania is a recognized symptom of mania, in some of its recognized forms at least, and to illustrate the importance — this being the peculiar de- fence — of embracing in a general charge on the subject of insanity, this peculiar symptom — a feature of the present case to which proper atten- tion seems not to have been paid, on the trial below, and which in our opinion would have been more fully developed if the attention of the jury had been called more pointedly to this feature of the defence. Other questions are presented by the record and have been discussed in argument, but are not considered by this court, not that they are un- important or immaterial, but because if they are errors they are suscep- tible of easy correction on another trial. Because of what we deem a material defect in the charge, as above indicated, the judgment will be reversed, and the cause remanded for a new trial Reversed and remanded. 772 SOMNAMHULISM. Fula I'. Coininonwealtli. SOMNAMBULISM — HOMICIDE- RESPONSIBILITY FOK UNCONSCIOUS ACT. Fain v. CoMMONWEALTn. [78 Ky. 183.] In the Court of Appeals of Kentucky, September Term, 1879. Hon. Martin F.Cofer, Chief Justice. " Tho.mas F. Hargis, \ *' Thomas H. Hines, \ Associate Judges. " William S. Prior, ) I Somnambnllsm — Uurder Committed While in a State of— Responsibility for Unconscious Act.— F. and W. entered tiigethur at night a public room of a hotel, sat down and went to sleep. W. awoke shortly after and called to S. one of the porters, for a bed for himself and F. W. then attcni|)ted to awaken F. by shaking him, but failing, asked S. to wake him up. S. thereupon NhookF. with great force and succeeded in awak- ening him. While S. was holding him by the coat collar, and telling him to go to bed, F. drew a pistol from his pocket and shot S., killing him. F. then went out of the room with the pistol in his hant^I, his manner being that of a frightened man, saying that he had shot some one but did not know whom. F. did not know nor had he ever seen S. be- fore. On his trial fortho murderof S., F.oifered to prove that he had been asleep-walker from infancy ; that he had to be watched to prevent injury to himself; that frequently when aroused from sleep, he seemed frightened, and attempted violence as if resisting an assault, and for some minutes seemed unconscious of what ho did or what went on around him; that sometimes when prtly asleep, ho resisted the servant who slept in tht.' room with him as if he supposed the servant was assaulting him. He also offered to jirovc by medical experts that persons asleep sometimes act as if awake. He like- wise offered to prove that his life had been threatened by a person living near where he haJ been on business during the day, and that he had on that morning borrowed the pistol with which he shot the deceased and had slated at the time that lie was required to go noar to where 'he person lived who had threatened him, and ho wanted the pis- tol to defend himself in case he was attacked. The court rejected all this proffered evidence, and the prisoner excepted. Held, error. If the prisoner, when he shot the deceased, was unconscious, or so nearly so that he did not comprehend his own situa- tion and the circumstances surrounding him, or that he supposed he was being assailed, and that he was merely resisting un attempt to take his life or do him great bodily in- Jury, he should be acquitted. Appeal from Jessamine Circuit Court. H. A. Anderson aiul Breckenridge and Shelby, for appellant. Judge CotKU delivered Uie opinion of the Court. The appellant was? indijled and tried for tlie murder of Henry Smith, a porter at the Vf-rnnda Hotel at Nicholasville. He was found guilty of manslaughter, and sentenced to confmomentin the penitentiary for two years. From that judgment he prosecuted this appeal. The prisoner and his friend George Welcli went to the Veranda Hotel after darli on an evening in February. Tlie weather was cold, and VMS V. COMMONWEALTH. 773 Facts of the Case. there was snow upon the ground. They sat down in Ihc public room and went to p.ecp. In a short time Welch awoke, and finding the de- ceased attho barber's shop in the next room, called for a bed for him- self and the prisoner, to pay for which he handed the deceased a bill. Welch attempted to awaken the prisoner by shaking him, but failed. He theii / .d the deceased to wake him up. The deceased shook him for some time and failing to wake him, said he believed he was dead. Welch said : " No, he is not ; wake him up. " The deceased shook him harder and harder until the prisoner looked up and asked him what he wanted. The deceased said he wanted him to go to bed. The prisoner said he would not and told the deceased to go away and let him alone. The deceased said it was getting late and he wanted to close the house, and still holding the prisoner l)y the coat the latter either raised or was lifted up, and as he arose he threw his hand to his side as if to draw a weapon. A bystander said to him, ' ' Don't shoot ; ' ' but without noticing or giving any sign that he heard what was said, he drew a pistol and fired. The deceased instantly grappled him to prevent him from shooting again ; but a second shot was fired almost immediately, and a third soon fol- lowed. After the third shot was fired the prisoner was thrown down and held down by the deceased. The prisoner, while being held on the floor, hallooed hoo-icee very loud two or three times, and called for Welch. He asked the deceased to let him get up, but the deceased said: " If I do you will shoot me a^ain." The prise ler said he would not and the deceased released his hold and allowed him to get up. Upon getting up the prisoner went out of the room with his pistol in his hand. His manner was that of a frightened man. He said to a wit- ness, " Take ray pistol and defend me;" said he had shot someone, but did not know whv It was, and upon being told who it was, expressed sorrow for what he had done. It did not appear that the prisoner knew or had ever seen the deceased before. There was not the slightest evidence of a motive on his part to injure the deceased, nor does there appear to have been anything in what the deceased did or the manner of doing it which, the facts being understood, was calculated to excite anger, much less a desire to kill him. At that time the prisoner was about thirty-three years of age, and he introduced evidence to show that he had been a man of good char- acter, and of peaceable and orderly habits. He also offered to prove that he had been a sleep-walker from his in- fancy ; that he had to be watched to prevent injury to himself ; that he was put to sleep in a lower room, near that of his parent, and a servant- man was required to sleep in the room to watch him ; that frequently, 774 SOMXAMBULISM. Fain r. Comniouweulth. when aroused from sleep, he seemed frightened, and attempted violence, as if resisting an assault, and for some minutes seemed unconscious of what he did, or what went on around him ; that sometimes, when partly asleep, he resisted the servant who slept in the room Mith him, as if he supi)osed the servant was assaulting him. He also offered to prove by medical experts that persons asleep sometimes act as if awake ; that the}' walk, talk, answer questions, and do many other things, and yet are unconscious of what they do ; that with many persons there is a period between sleeping and waking in which they are unconscious, though they seem to be awake ; that loss of sleep, and other causes which produce nervous depression or mental anxiety, may produce such a state of unconsciousness between sleep and waking ; and that for some days previous his children had been afflicted with a dangerous dis- ease, and he had, in consequence, lost much sleep. He likewise offered to prove that his life had been threatened by a person living near where he had been on business during the da}', and that he had on that morn- ing borrowed the pistol with which he shot the deceased, and had stated at the time that he was required to go near to where the person lived who had threatened him, and he wanted the pistol to defend himself in case he was attacked. The court rejected all this proffered evidence, and the prisoner ex- cepted. All the modern medico-legal writers to whose writings we have had access, recognize a species of mental unsoundness connected with sleep, which they commonly treat of under the general head of somnambulism. In speaking of this peculiar affection, Dr. Ray says : " Not only is the power of locomotion enjoyed as the etymology of th^ term signifies, but the voluntary muscles are capable of executing motions of the most delicate kind. Thus the somnambulist will walk securely on the edge of a precipice, saddle his horse, and ride off at a gallop ; walk on stilts over a swollen torrent ; practice airs on a musical instrument ; in short, he may read, write, run, leap, climb, and swim, as well as, and some- times even better, than when fully awake." ^ Wharton & Stille, Tay- lor and Brown announce similar views. ^ Under the general head of mental unsoundness connected with sleep, Wharton & Stille group somnolentia, somnambulism, and nightmare. They define somnolentia, " to be the lapping over of a profound sleep into the domain of appar- I ' Ray's Med. Jur., sect. 495. > Wharton & Stille on Mad. Jur., sect. 149, et leq.; Taylor's Med. Jur., 176; Med. Jur. of Inianity, sect. 328, et teq. som\amiu:ms.a[. 775 Tlic ()|)iiii()ii of tlio .Modical Write I'S. ent wakefulness," and say that it produces a state of involuntary in- toxication, which for the time destroys moral agency." <■ The writings of medical an.l medico-legal authors contain accounts of many well authenticated cases in which homicides have been committed whde the perpetrator was eitiier asleep or just being aroused from sleep and in commenting on these cases, Brown, in his Medical Jurispru- dence of Insanity, uses this language: "Indeed, there are many cases in which the confused thoughts of awakening consciousness have led to disastrous consequences. And tliis is to be accounted for by the fact that there is a state between sleeping and waking wlien the thoughts of the dreamer have as much reality as tlie facts he is assured of by his senses. "2 Taylor recognizes the existence in many persons of a lialf con- scious state, when suddenly aroused from sleep, and says there is no doubt, the mind is at sucli a time subject to hallucinations and illusions but seems to doubt whether sueli a state of the mind can continue lon<^ enough for the commission of a homicide. Tiie authorities, corrobo! rated as they are by common observation, are sufficient to prove that it is possible for one, either in sleep or between sleeping and waking, to commit homicide, either unconscionsly or under the influence of hallu- cination or illusion resulting from an abnormal condition of the physical system. Ray says : "As the somnambulist does not enjoy the free and rational exercise of his understanding, and is more or less unconscious of his outward relations, none of his acts during the paroxysms can rightfully be imputed to him as crimes." 3 Brown, and Wharton & Stille express substantially the same views. But we are not under the necessity of relying wholly upon writers on medical jurisprudence as authority upon tliis point. It is one of the fundamental principles of the criminal law that there can be no crimi- nality in the absence of criminal intention ; and when we ascertain from medical experts or otherwise that there is such a thing in nature as som- nolentia and somnambulism, the task of the jurist is ended, so far as relates to the right of one accused of crime to offer evidence conducing to prove that he committed the act imputed to him as a crime while in a paroxysm of somnolentia or somnambulism. In criminal trials the jury must try every pertinent question of fact the evidence conduces to prove. When evidence is offered, the sole question for the court is, will it conduce to prove any fact material in the case? And if the law gives an affirmative response the evidence must be admitted. If, as claimed, the appellant was unconscious when he fired the first shot, it 1 Mtid. Jur.,flect. 151. * Sect. 338. 3 MeU. Jar., sect. 508. .776 SOMNAMIU'LISM. Fain v. Coiiiiiionvvealth. cannot be imputed to him as a crime. Noi- is he guiUy, if partially con- scious, if, upon being partially awakened, and finding the deceased had hold of him and was shaking hii.., lie imagined he was being attacked, and believed himself in danger of losing his life or of sustaining great bodily injury at the hands of his assailant, he shot in good faith, believ- ing it necessa''v to preserve his life or his person from great harm. In such circumstances, it does not matter wliother he had reasonabh; grounds for his l)olief or not. lie had been asleep, and could know nothing of the surrounding circumstances. In his condition he may have supposed he was assailed for a deadly purpose, and if he did, he is not to be punished because his half awakened c* nsciousness deceived him as to the real facts, any more than if, being awake, the deceased had presented a pistol to his head with the api)arent intention to shoot him, when in fact he was only jesting, or if the sui)posed pistol, though sulHciently resembling a deadly weapon to be readily mistaken for one, was but an inoffensive toy. The evidence conducing to prove that the appellant's children had been sick, and that he had recently lost considerable sleep, sliould have been admitted, as conducing to show that, at the moment of being aroused, he may have been unconscious, or partly so, and therefore, unable readily to understand the real circumstances of his situation. The physicians introduced would have proved, as the appellant avowed, that loss of sleep and mental anxiety eacu has a tendency to develop a predisposition to somnolentia, or sleep drunkeiuiess, as it is otherwise called, and in this they would but corroborate the opinions of medical jurists. We are also of the opinion that the offered evidence in regard to the alleged threats against the prisoner should have been admitted. The central position of the defence was, that the prisoner fired the fatal shots while partially or wholly unconscious, under the false im- pression that he was being assaulted by the deceased. His effort was to show that he was subject to a peculiar affection which made him imagine, when suddenly aroused from sleep, that he was being assaulted by the person arousing him, and that under that impression he was accustomed to make unconsciously violent resistance ; that at such times he mistook the mere creatures of his Imagination for real facta and circumstances. If he had been threatened, it was natural, or at least not unnatural, especially while near to the person who had threat- ened him, that the threat should make such an impression on his mind as would contribute to develop with more than ordinary force the pre- SOMNAMBULISM. 777 Test of Liability for Criniiiml Act. chsposi ,on to imagine himself assaulted and to make resistance, and particularly so when on being aroused, he found himself in the shTken "^ '^''"'°''' ^^ ''^'''"' ''" ''''' ^''"^ persistently and violently We do not see any legitimate bearing the fact that he borrowed the pistol could have upon any of the issues in the case, and what he said was not admissible to prove that he had been threatened As the case must go back for a new trial, and it is, in some of its features, one of llrst impression, we will, at the risk of beincr prolix consider the law applicable to it somewhat in detail. There are several phases in which the case presents itself, all of which should be submitted to the jury. 1. If the prisoner, when he shot the deceased, was unconscious, or so nearly so that he did not comprehend his own situation and the cir- cumstances surrounding him, or that he supposed he was being assailed, and that he was merely resisting an attempt to take his life or to do him great bodily injury he should be acquitted -in one case because he was not legally responsible for any act done while in that condition, and in the other, because he is excusable on the ground of self-defence • for although it is clear that he was not in danger, and had no reasonable grounds to believe he was, yet if, through derangement of his percep- t.ve faculties, it appeared to him that he was in danger, he is as free from punishable guilt as if the facts had been as he supposed them to be. 2. If he was so far unconscious when he fired the first shot, or the first and second that he supposed he was defending himself against a dangerous assault, and regained consciousness before the second or third shot, the question of guilt or innocence will depend upon whether he then believed in good faith that he was in danger of losincr his life or of sustaining great bodily injury. ° It was not necessary, under the circumstances, that he should hare reasonable grounds to believe he was in danger. In the view we are now taking of the case, we are supposing he was unconscious or partly so when he fired the first shot. If so, when he regained consciousness and found himself seized and held by a stranger who was struggling to overpower him, it would be unreasonable to expect him to wait until he could discover the purpose or apparent purpose of his antagonist, as it might have appeared to those, who in the full possession of their facul- ties and senses had witnessed the whole affair. But if after he fired he became conscious, and did not at the time, in good faith, believe he 778 KLEPTOMANIA AND SOMNAMBULISM. Fiilii V. Coiimioiiwoalth. was in danger of loss of life or great personal injury, he is guilty of either murder or manslaughter, — murder if he was actuated by malice, manslaughter, if he acted without malice. 3. Although he may have been so far conscious when he fired the first shot, as to understand what he was doing, yet if he did not understand the purpose of his assailant, and believed he was attempting to inflict on him great personal injury, he should be acquitted, for as already remarked, if in consequence of a derangement of his perceptive facul- ties, or from being suddenly aroused from sleep, and finding the deceased holding him and shaking him, he believed he was in great danger of losing his life or suffering great personal injury, although there was in fact no danger, and those who had witnessed the affair had no reason to apprehend danger, he is no more guilty than if there had been actual danger. Such a case admits of np other test than the good faith of the prisoner, to be judged of by the jtiy. 4. If the prisoner was conscious of what he was himself doing, and that the purpose of the deceased was merely to wake him up, and the prisoner shot him simply because he did so, he is guilty of either mur- der or manslaughter ; murder if the shooting was malicious, manslaugh- ter if without malice. If the prisoner is, and has been afflicted in the manner claimed, and knew, as he no doubt did, his propensity to do acts of violence when aroused from sleep, he was guilty of a grave breach of social duty in going to sleep in the public room of a hotel with a deadly weapon on his person, and merits, for that reckless disregard of the safety of others, some degree of punishment, but we know of no law under which he can be punished. Our law only punishes for overt acts done by respon- sible moral agents. If the prisoner was unconscious when he killed the deceased, he cannot be punished for that act, and as the mere fact that he had the weapon on his person and went to sleep with it there did no in- jury to any one, he cannot be punished for that. Instructions two and three, given by the court, are inconsistent with the foregoing views, and should not have been given. For the errors indicated, the judgment is reversed, and the cause is remanded for a new trial upon principles not inconsistent with this opinion. MONOMANIA. 779 Kloptomaiiia — Steallnq; Shoes, NOTES. § 70. Monomania — Kleptomania — Stealing Shoes — Test of Insanity. — In People V. Charles Uprague,^ tried in the Kings County Oyer and Terminer, in 1849, it was laid down: 1. It is a defence to au indictment for crime, that the act complained of was done under an insane impulse, which at the time, destroyed the capacity to distinguish between right and wrong. 2. On tlie trial of an indictment for rol)ljing afemale of her shoe, in daylight, in the public street of a city, it beii.^ proved that the accused had been, for several years, and ever since an injury to his head, which it was supposed had affected his brain, in the habit of taking the shoes of females, Avherever he could Hud them, and secreting them without any apparent object for so doing, and that insanity was a hereditary disease in the family of the prisoner, on the side of his mother, with other cir- cumstances tending to establish monomania, he was acquitted on tlie ground of insanity. The facts were these : — The prisoner was indicted for robbery, alleged to have been committed upon the 18th of August, 184!), and was tried at the Oyer and Terminer for Kings County, on the 10th of October following. Sarah Watson testilled that about eight o'clock on the morning of the 18th of August, she was walking along Pearl Street, in the city of Brooklyn, and hearing some person behind her, looked around and saw the; prisoner, who immediately seized her, threw her down, and took a shoe from one of her feet, and ran away. She testified that at the time she had a gold chain upon her person, but that it could not be seen by the pris- oner. She also stated that there was a man near by, who was unknown to her, but who hallooed at the prisoner and gave chase to him, l)ut that the prisoner outran him and escaped. It was admitted by the prisoner's counsel, that the shoe of Miss Watson was found in tlie prisoner's overcoat pocket, about ten o'clock of the same day, at the printing otrice of the Long Island Star. It was proved that the prisoner was a printer by trade, and was then emplo5'ed as a journeyman in the office of the Star; that he came to the office upon that morn- ing at his usual time, hung up his overcoat and went to his work as he had done before. One of the proprietors of the Star, hearing of the circumstances of the outrage upon Miss Watson, and her description of its perpetrator, suspected the prisoner, and demanded of liliii the shoe he had taken from the foot of a young lady. The prisoner replied, " It is in my overcoat pocket." The shoe was taken from the pocket of the prisoner's overcoat, and afterwards identified by Miss Watson as the one taken from her in the street. The prisoner made no attempt at concealment or explanation. The counsel for the prisoner admitted that if the prisoner was sane, he was guilty of the crime for which he was on trial. The prisoner's counsel called the Rev. Isaac N. Sprague, father of the prisoner, a highly respectable Congrega- tional minister, who testified that the prisoner's age was twenty-five years; that 1 2 Park. 43 (1849). 780 KLErrOMAXIA AND KOMXAMIIULISM. Notes. he had generally roslded in the family of tlie witness, hut had spent a year with a brother ut Ihirtford, Connecticut, wliere lie \ve:it aiiout lour years before; tliat since his return from Jlartford, the prisoner had lived wifli tlie witness; tliat the prisoner was nuirried in the year 1847, and was, with his wife, living at the house of the witness at the time of tlie assault upon Miss Watson; that the prisoner had at different times receivenoiiiico 46 Barb. 626 (1866). DEMENTIA. 783 r. S. V. Ili'w.soii— U. V. N'ysf. nncccssary tlio whole illy Insane, tu thu Hunu md to hide lt; and in tlioy were il In the hi- iwlng right but If they ' to give a lict of not janlty.i innocent. 1 appeared I excessive h it might ^customed ti upon his il this rul- Jence was condition As to wimt iU'iivvA' of mental Incapacity eonstltntcw dementia, and n-nders a per- Hon not criiulually responsible for acts otherwise criminal, see State v. Hicharda,^ § 7r,. other CaaeB. — In United States v. Catherine Hevsnn,'' the prisoner was indicted for the murder of lier child by throwing It overboard from a steand)oat. Khe lia evhU iice of j)liyslclans that she had been subject to i)ucri)eral fever, and that the tendeney of that disease was to produce tem|)()rary alienation of miiul and deraniienient of the natural affections. Jiulge Shjuy instructed the jury that they ought to lliul her Insane, ■which was done. In Iip(/. V. T>c,» tried before Wiotitmax, J., In 18(;2, a married woman, fondly attaclied to her children and ajiparenlly happy in her family, had ijoisoned t ,voof them with dellbcratum and desigu. It appeared that there was insanity in the family, and from lur demeanor before and after the act, and from the presence of certain exciting causes of insanity, the experts were of opinion that she was laboring under actual ccjrebral dis(;ase, and that she was in a paroxysm of insanity at the time of the act. Slie was acquitted. 1 39 Conn. 891 (1873). » 7 Law Uep. 361 (mi). • 3 P. & r. 247. lence that lal desire, lence that " said the 1 non com. gnizes no y attempt ther from ucide, we now pos- his acts, is in that Heated in 0). g f( jl o SI CHAPTER V. EVIDENCE AND PRA^'/nCE INSANITY MUST BE CLEARLY SHOWN — EVIDENCE OF E CCITEMENT. Statk V. Gkaviotte. [22 Lii. Ann. 587.] In the Supreme Court of Louisiana, November, 1879. * Hon. John T. Ludeling, Cnicf Justice. " J. G. Taliai'ekko, I " R. K. Howell, " \V G Wyly r ■'Associate Justices. " W. W, Howe, | Insanity must be Clea?rly Shown.— Insanity, when pleaded in defence of a criminel act, sucli as liomicide, must bo clearly shown to have existed at the time of the com- mission of the act. Therefore, evidence of a witi.css to show a state of mental excitement in the accused, produced >>y the insulting language and threats used towards him by the deceas<5d, his wife's v-v> amour, ut the time of the killing, is not ad- missible to show insacity. Appeal from the IHrst District Court, Parisli of Orleans. Abell, J. Simeon Belden, Attorney-General, for the State. A. A. Atocha, for defendant and appellant. Taliafekuo, J. — The defendant, being indicted for murder, was found guilty of manslaughter, and sentenced to hard labor in the penitentiary for the term of two years and six months. He has appealed from the judgment. The plea set up in his behalf on the trial was that of insanity. A bill of exceptions to the ruling of the cotirt excluding evidence offered to sustain the plea of insanity embraces Uie grounds upon which the plea was taken. The defendant offered to prove, by a witness introduced 50 (785) 786 EVIDENCE AND PRACTICE. State V. (jlraviottc. on the part of the defence, that on the night previons to the commis- mission of the homicide, the witness and the accused saw improper conduct between the wife of tlie latter and a man who was with her in the house of tlie accused. Tlie character of this alleged mis- conduct was sought to be elicited by a question put to the witness. The evidence was offered to show such a state of mental excitement in the defendant, produced by wliat he had witnessed, and the insulting language used towards him by his wife's paramour, as might become a predisposing cause of insanity. The evidence was objected to on the part of the State, and rejected by the court as irrelevant and inad ssi- blc to prove insanity. We thinic the ruling correct. In^.. lih , when pleaded in defence of a criminul act, must be clearly shown to have existed at the time of the commission of the act. Vague conjectures as to a probable existoiice cf mental aberration fi'om supposed predis- posing causes are quite too sultlimated to possess weight in the inquiry as to the sanity or insanity of an accused party. The counsel of the defendant further asked the courrt to chage the iiiry as follows: First. There is no presumption of malice in this ci >, if any proof of alleviation or excuse arise out of the evidence. Secoiiu. The existence of malice is not presumable in this case, if, ou any theory consistent Avith the evidence, the homicide was excusable. Third. If, on the whole evidence presented, there is any hj'pothesis, consistent with the conclusion that the homicide was excusable, the accused cannot be convicted. The fourth and fifth points are mere reiterations of the grounds upon whicli the testimony was offered to show insanity and which was re- jected by the court. To these requirements, in their order, the judge charged the jury : 1. That if there was alleviation or excuse, there could be no murder; the offence would, at most, be only manslaughter. 2. The court de- clined to give the charge required under this head, because it could only do 80 by referring to the evidence, which it has no right to do. 3. The jury was charged expressly, that if the homicide were excusable, they must acquit. We find no error in the charges given to the jury. The de- fendant has failed to present a case requiring this court to grant relief. It is therefore ordered, adjudged, and decreed that the judgment of the District Court be affirmed. ADL'LTERV OF WIl'K. 787 State V. John. ', v< ADULTERY OF WIFE — WHEN EVIDENCE INADMISSIBLE — DRUNKEN- NESS— INSANE DELUSIONS— DECLARATIONS. State v. John. [8 Ircd. (L.) 330; 49 Am. Dec. 8!)G.] Jn the Supreme Court of North Carolina, June Term, 1848. Hon. Thomas Ruffin, Chief Justice. " Frkdkrick Nash, ) " WiLLiA.M II. Battlk, ) <^«<^^es. 1. Adultery of Wife — Evidence of, not Admissible, when, — On an indictment for inurdLT, evidence that Iho prisoner's wife had been in tlie habit of committing adul- tery with the deceased is inadmissible. Nothing but finding a man in the very act can mitigate the homicide from murder to manslaughter. !*. Voluntary Drunkenness will not mitigate a crime. 3. Declarations of Prisoner, when admissible on question of his insanity. 4. Insane Delusions. — When is a criminal act done under an insane delusion, not pun- ishable, i^uceref Appeal from the Superior Court of Craven County, Spring Term, 1848. The prisoner was indicted for the murder of Ben Shipman, a slave- Verdict of guilty and sentence of death pronounced. The prisoner appealed. The Attorney-Oenn'al, for the State. ,T. H, Bryan, for the prisoner. Battle, J. — We have corsidered the questions presented by the counsel for the prisoner, in Ids bill of exceptions, w'.th all that care and anxiety for a right decision which tlreir importance, both to the pris- oner and to the State, imperatively df;manded. We have, nevertheless, been unable to find in the errors ass.igned any thing o* which the pris- oner has a right to complain. Tne first exception is, that the court crrel in rejecting " the evidence offered to prove the adultery of the prisoner's wife vith tlie deceased." This testimony Wi.3 offered to prove, :iot that the deceased was found by the prisoner in the act of adul- tery with his wife at the time when the homicide was committed, but that " an adulterous intercourse has been, for some time preceding the homi- cide, carried on between them ;" and the counsel insisted that a know- ledge, or even belief, of such adulterous intercourse by the prisoner would mitigate the crime from murder to manslaughter. No authority has been produced in support of this position, and, so far as we can learn. 788 EVIDENCE AND rUACTICE. State V. John. al the authorities arc directly against it. Hale, Foster, East and Russell a 1 agree instating that, to extenuate the offence, the husband must find the deceased in the very act of adultery with his wife. And so it must be upon principle. The law extends its indulgence to a transport of passion, justly excited, and acting before reason has time to subdue it, but not to a settled purpose of vengeance, no matter how great the in- jury or gross the insult which first gave it origin. A belief — nay, a knowledge — by the prisoner that the deceased had been carrying on an adulterous intercourse with his wife cannot change the character of the homicide. The law on this subject is laid down with much clearness and force by Foster in his Crown Law,' and with him all the other writers substantially agree : "A husband, finding a man in the act of adultery with his wife, and, in the first transport of passion, killethhim? this ts no more than manslaughter. But had he killed the adulterer deliberately and upon revenge, after the fact and sufficient cooling time, it had been undoubtedly murder. For, let it be observed, that in all possible cases deliberate homicide, upon a principle of revenge, is mur- der." As, then, the evidence which was offered to show the adulterous intercourse between the prisoner's wife and the deceased could not, if received, have changed the nature of the offence, the court did not err in rejecting it. But it is argued here that the prisoner had just reasons for believing that the deceased was engaged in the act of adultery with his wife at the very time when he broke into the house of the deceased and killed him. It may well be doul)ted whether the testimony given on the trial supports this view of the case ; but if it were admitted that it did, it could be of no avail to the prisoner. It is the sudden fury, ex- cited by finding a man in the very act of shame with his wife, which mitigates the offence of the husband, who kills his wrong-doer at the instant; but to the offence of one who kills upon passion, excited by a less cause — by a mere belief of the act — the law allows of no mitiga- tion. The second exception is "for misdirection of the court on the sub- ject of drunkenness." All the writers on the criminal law, from the most ancient to the most recent, so far us we are aware, declare that voluntary drunkenness will not excuse a crime committed by a man, otherwise sane, whilst acting under its influence. Even the cases relied upon by the counsel for the prisoner ~ all ackiiowledge the general rule, but they say that, when a legal provocation is proved, intoxication may 1 p. 296. a Kex V. Meakiu, 7 C. & P, 297 (32 Eng. C. 1.. 5U}; Kex v. Thomas, Id, 817, 750; 1 Uuse. uu Cr. 8. ilast and Russell sbaud must find And so it must ) a transport of le to subdue it, ow great the in- belief — nay, a I carrying on an character of the •h clearness and 1 all the other 1 in the act of ion, killethhimt 1 the adulterer nt cooling time, rved, that in all •evenge, is mur- w the adulterous i could not, if ourt did not err lad just reasons f adultery with )f the deceased imony given on dmitted that it idden fur^', ex- his wife, which )ng-doer at the n, excited by a s of no mitiga- turt on the sub- law, from the re, declare that itted by a man, the cases relied e general rule, toxication may Id. 817, 750; 1 DIHNKENXESS AND ntOVOCATK ).\ . 789 Adultery of Wife. be taken into consideration to ascertain whether the sla3'er acted from malice or from sudden passion, excited 1)y the provocation. Whether the distinction is a j)roper one or not, we do not protend to say. It has been doubted in England, and it is a dangerous one, and ought to be received with great caution. But whether admitted or not, it has no bearing upon the i)rescnt case. There is not a particle of testimony to show that the prisoner was acting, or can be supposed to have been act- ing, under a legal provocation ; and there wiis, therefore, no cause for the application of the principle for wiiich tiic counsel contends. The third exception is " liecause the court rejected a i)art of the evi- dence tending to show that the prisoner was laboring under monomania on the subject of his wife's adultery with the deceased." Tlie testi- mony offered and rejected was " tlic dechu-utions of the i)risoner, made some time before the homicide." We are not sure that we correctly understand this exception in tlie connection in which it is made. One of the grounds of defence taken by the ])risoner wa« tli:>t he was insane at the time when he committed the homicide, and, so fcir as we can dis- cover, he was allowed to introduce all the testimony in his i)ower to sus- tain it. Of that, and of the cliarge of the judge in relation to it, no complaint is, or can, be nuide by the prisoner. Monomania is one among the various forms of insanity, it is a partial insanity upon one particular subject. As a species of insanity, it was competent for the prisoner to have proved it, and he was not restricted in his proof of it, so lonjT as he insisted on it under the defence of insani£v. It was not until after he had closed his testimony on that subject, and also on the subject of drunkenness, that he offered the testimony which was re- jected. We do not well sec how the one could be separated from the other. The declarations, too, what were they? Were they statements of facts, by the prisoner offered as evidence of those facts? If so, they were clearly inadmissible. Were they wild, incoherent and dis- jointed exclamations in relation to his wife's adultery, evincing that they proceeded from an unsound mind? If so, the prisoner should have offered them as proof under his defence of insanity, and they would doubtless have been received. If we are to judge of their na- ture from the declarations which were received, as having been made on the night of the homicide, and proved by the witness Dausey. tiien tiiey ought to have been rejected as the mere idle ravings of a drunken man. Our dirticulty in understanding the exception is still further increased by the apparently inconsistent grounds of defence assumed for the pris- 1 Rex V. Carroll, 7 C. & V. 115 {32 Eng. C. L. 417). 790 EVIDENCE AND PUACTICE. Sawvor v. State. oner. One ground, which we have ah'eady considered, is that his wife was actually guilty of adultery with the deceased. Now, if by mono- mania on that subject is meant that the prisoner was laboring under mental delusion that his wife was guilty, when in truth she was inno- cent, then the fact of her innocence is directlj' opposed to what was as- serted and offered to be proved by the prisoner's counsel. But if the prisoner's wife was guilty, and the insane delusion of his mind was that he had the right to kill her paramour, then it would raise a most important and interestii: , jucstion whether insanity to that extent only would render him irresponsible for crime. It seems to be settled by the highest authority in England that it would not. ' But we do not wish to express an opinion upon it until the question is brought directly before us. In this case we are compelled to decide against the prisoner, be- cause he has not shown us that he has been deprived of anj' benefit or advantage to which by law he was entitled. Judgment affirmed. EVIDENCE — ADULTERY OF WIFE OF PRISONER — INSANITY SHOULD NOT BE INFERRED — CAUTION TO JURY. Sawyer v. State. [35 Intl. 80.] In the Supreme Court of hidiana, May Term, 1871. Hon. Alexander C. Downey, Chief Justice. " Jt)IlN ri;TTiT, " James L. WoKDEX, i jmdget. " SaAUEL II.BUSKIKK, 1. Evidence — Irrelevant on Question of Sanity — 9. was indicted for the murder of hia wife. «>> the ti-i:il lie offered eviduii(-c tli:u she liiid fur ii long timi; been liaving an adulteruts* intercourso with one B. and others, uf wiiich S. had for a longtime been cognizant. Held, inadmiM-ible. both on the (lue&tjon of heat of passion and of insanity. 2. Insanity Should Not be Inferred. — A jnry is not autliorizcd to find a prisoner in. sane beci.-f.c some cause exi:?ted wliich uuglit tend to i)roduce insanity. 3. Instructions — Caution to Jury. — It is proper for the court to direct the attention of tlie jury lo ilie defiMiCL if lusanity, and instruct them that it should be carefully and and uitelligeutly bcrutuuzi'.l. 1 Stark on Non Coni))i>8,Gf;; note to Keg. v Higginson, 1 ('. & K., and 47 Fug. C. L. 130. at bis wife by mono- ring under was inno- lat was as- But if the I mind was lisc a most xtent only tied by the lot wish to itly before isoner, be- benefit or iffirmed. SHOULD le murder of been iiaying ngtime been 1 ot insanity. prisoner in- attention of lare fully aud C. L. 130. 8AWYEK V. STATE. 791 Facts In the Case. Appeal from the Vanderburg Criminal Circuit Court. T. L. Davis and J. G. Ilolliiigsivorth, for appellant. W. P. Hargrave and B. W. Hanna, Attorney-General, for the State. WoKDEN, J. — The appellant was indicted for, and tried, and con- A'icted of, the murder of his wife, Lizzie Sawyer, and sentenced to be executed. The case made against the accused by the evidence is, in substance, as follows : — The deceased, at the time of the homicide, was employed as chamber- maid on the steamboat G. W. Thomas, which was then lying at the wharf in the city of Evansville, in Vanderburg Count}-, in this State. On the evening of the 2d of February, 1871, one Delia Wilson, an ac- quaintance of the deceased, went on board the boat to see her. Soon after Delia went on board, the accused went on board the boat, and went to that part of the boat where the deceased and Delia Wilson were. The witness to this part of the transaction, Delia Wilson, says that the accused did not seem to be angry, but spoke to her and the deceased very pleasantly, and inquired after their health, and sat down by a ta- ble where deceased was ironing. All three of the parties talked and laughed together for a while. After some casual conversation, the ac- cused asked the deceased if she would go and live with him if he would get a house off Water Street. The deceased made !;im no answer. The witness, Wilson, asked her Avhy siic did not answec him. The deceased replied that the accused always came to her chunk, and that was the reason she wouldn't talk to him. The ticcused then asked the deceased, addressing her as "baby," if she would go and live with him if he would get a house in another portion of the city, to which she replied that he knew her mind was made up ; thtit she had told him when the boat was in port on the last trip what she was going to do ; that she then told him she never intended to live with him again. In the mean- time the accused had got up from where he had been sitting, and moved two or three steps, taking a seat near where the smoothing irons, which the deceased was using, were sitting. At the point of the conversation above stated, the appellant seized one of the iroiis, weighing be- tween four and five pounds, and struck the deceased on the head tlierewith. He struck her twice before she fell, but kept on striking af- ter she had fallen, as the witness says, as much as two dozen times. The witness became frightened, and ran into the pantry of the boat, and fastened the door, but she heard tlie deceased screaming for a minute or two after that, and then she ceased. Wlien the witness came out of the i>anlrv, she saw the appellant jninping from the boat to the river bank, with the smoothing iron in his hand. This witness also tes- 792 EVIDENCE AND PRACTICE. Sawyer v. State. tifies that on the day before the murder she talked with the appellant when, as she says, he seemed to think the deceased "had been spending his money on anotlier man." The deceased had been on the boat about a month. Edward Green, the ' abin-boy of the boat, heard screams of murder from the direction of tlie stern of the boat, and ran and opened the door leading from the ladies' cabin to the washing and ironing room, and there saw tlie prisonei* have tlie deceased down on the floor, with his knocs on her bi'east, striking her on the head with the smoothing iron. When the witness opened the door, the prisoner ran at him and told him to get out or he would kill him. The witness ran out, when the accused shut the door and bolted it, and then began beating the de- ceased again. The porter of the l)oat came and broke the door open, at which time some six persons had gathered around, and the appellant, swearing he would kill all of them if they did not get out of the way, ran down on deck, and jumped off the boat. When the appellant left the boat, the parties went to where the deceased was Ijnng, and found she was dead. Her head was brutally and h'orribly mangled. After the appellant left the boat, it appears that he ran about two miles from town, but then returned and surrendered himself up to the officer, saying that he had concluded to come back and surrender him- self up because he knew he would be [)ursued and taken. He said at dif- ferent times after the murder, that if he had not killed the deceased, he had failed to do what he intended ; that he killed her because she had been sleeping with one Bibbs, and others, and that he only regretted that he could not kill Bibbs also. He also said he was now satisfied, and they might hang him, shoot him, or do what they pleased with him. It was proved by another witness, who had some acquaintance with the appellant and his wife, that she did not know why the deceased left home to go on the boat, but that she was kept by another man by the name of Bibbs. On one occasion the appellant came home and after talking with the deceased a while about her conduct with other men, he said to her that if i,\\e did not quit running with other men he would smother her in her heart's blood, to which she replied, "Well, then, you can kill me," and left the room. On another occasion, aboutthree weeks before the murder, appellant said to tiie deceased, that if she did not behave herself and quit running with other men, he would kill her. It appears b}' the evidence that the appellant is below the aver.' ge of mankind in point of mental capacity and intelligence, but he appears to us to have had abundant mind to be in every way responsible for his ADULTERY OF AVIFE. 793 Kviiloiico of, Irrck'vaiit. conduct; and we may add tliat, although there was evidence given to show, in the language of the l)ill of exceptions, " the causes that tend to produce temporary insanity," there was nothing in the case that shows any mental derangement on tlio part of the accused. The appellant offered to prove "that the deceased, Lizzie Sawyer, had for a long time previous been having adulterous intercourse with a man by the name of Bibbs, and others, of which adulterous conduct the defendant had for a long time been cognizant." This evidence was rejected, on objection made by the State, and the defendant excepted. This evidence, offered with a view to justifjs or in any way palliate, the offence, was utterly incompetent, and correctly rejected. It assumes that the defendant had " for a long time," been cognizant of his wife's adultery. If he had been thus for a long time apprised of her guilt in that respect, there had been an abundance of time for the ebullition of passion, which might be supposed to arise on being first apprised of the fact, to subside. After the lapse of time sufBcient for the passions to cool, and for reason to resume her swaj', the killing was just as crim- inal and indefensible as if the deceased had never been guilty of con- jugal infidelity. We do not determine what might have been the effect of the adultery of the deceased had the homicide been perpetrated by the appellant immediately upon discovering the fact. It is sufficient to say that if the facts offered to be proven were established, they would, in ii'^ way, excuse or mitigate the offence.^ There migbt be numerous authoritieo cited upon the i:)oint, both ancient and modern, but it is deemed unnecessary. It is claimed, however, that the evidence should have been permitted to go to the jury, on the ground that it tended to establish the insanity of the accused. It appears to us that the appellant had the full bene- fit, on the trial, of the fact that he believed that the deceased had been guilty of continued adultery, if that belief had any tendency to pro- duce mental derangement. His statements, before and after the mur- der, show that he entertained that belief, or perhaps we should say, that he knew the fact. But the evidence, as offered, was Incompetent for that purpose. It was testified by a physician, that " any excitement, an impression that a great wrong has been inflicted upon a man, protracted thought upon any subject, and others that might be enumerated," are causes that tend to produce temporary moral insanity. It is claimed, as we understand the argument, that inasmuch as the infidelity of the de- 1 Statet'. Samuel, 3 Jones (\. v.) 74 ; state t; John, 8 Ired. ;i,'iO. 794 EVIDENCE AND PRACTICE. Sawyer v. State. ceased was a great wrong inflicted upon the defendant, and inasmuch as his mind would protractedly dwell upon the subject, the evidence was competent, us tending to show the existence of an exciting cause of in- sanity. This argument assumes that a jury may infer the existence of insanity from proof merely of the existence of a cause that may tend to produce it, without any proof whatever that the effect followed the cause. If it were a case where a given effect must follow the cause, there would bo force in the argument, because proof of the cause would be proof of the effect. But we know that the various causes tliat may tend to pro- duce insanity very frequently fail to produce any such effect; and it seems to us tliat it is not competent to prove the existence of such ex- citing cause unaccompanied with some proof that the effect followed the cause. Indeed, a jury would not be authorized to find a man to be in- sane, without proof on the subject other than the fact tliat a cause ex- isted that tended to produce insanity. Thus in the case of Bradley v. State,' the court below charged the jury, that " if it had been proved that the mother of the defendant was insane, and that insanity in the mother raises a strong presumption that it is transmitted to the offspring, yet it rests upon the defendant to prove that he was insane at the time the act was committed. Tiie facts that the motlier was insane, tliat the twin brother of the mother was also insane, and that a cousin was in- sane, if proved, would not be sufficient, of themselves, to show insanity in the defendant, but are facts strongly tending to show hereditary in- sanity in the family, and proper for you to consider with the other tes- timony in the case, to aid you in determining whether the defendant was insane or not, when the act was committed." This charge was held to be correct. The evidence offered was not accompanied with any offer of evidence to prove the actual insanity of the defendant, nor was there any evi- dence introduced that had any legitimate tendency to prove insanity ; and whatever might have been the law of the case had evidence been in- troduced or offered, in connection with that rejected, tending to prove the defendant's insanity, we think the evidence as offered, was rightly jcjected. Tlie appellant moved for a new trial, upon the ground, amongst other things, that the court erred in giving the first, second, third, fourth, and eighth instructions to the jury. I 31 Ind. 492. INSANITY AS A DEFENCE. Cliurgo of the Court. 795 The charges given to the Jury are too long to be here set out in full, but we find no error in tlieni. They place the wliole law of the case before the jury in ([uitc as favorable a light us tlie a|)i)ellant could ask. No objection is pointed out in the brief of counsel fur iippt-llant to any of the charges except the second, which is as follows: "If you shall find from the evidence that the prisoner, Sawyer, did the killing as charged in tiie indictment, then the next question for you to determine is, was the prisoner justifiable or excusable to any extent upon any of the grounds mentioned? The ground relied upon by the defence in this case to overcome this presumption of malice (the presumjjtion arising from the use of a deadly weapon, as explained in a previous charge), is that of insanity. In other words, it is argued in behalf of the prisoner that at the time of the commission of the act alleged in the indictment, he was not of sound mind, and, therefore, uoi resi)onsible for the acts committed by him. This defence is one very frequently' made in cases of this kind, and it is one which, I may say to you, should be very care- fully scrutinized by the jury. The evidence to this point should l)e carefully considered and weighed by the jury, for the reason that if the accused were in truth insane at the time of the commission of the alleged acts, then he ought not to be punished for such acts. The evi- dence on this question of insanity ought to be carefully considered by the jury for another reason, and that is, because a due regard for the ends of justice and the peace and welfare of society demands it, to the end that parties charged with crime may not make use of the plea of insanity as a means to defeat the ends of justice, and a shield to pro- tect them from criminal responsibility in case of violation of law. It is not every slight aberration of the mind, not every case of slight men- tal derangement that will excuse a person for the commission of an act in violation of law. The great difficulty is to determine, in cases where insanity is urged as a defence, the degree of insanity that will excuse a person for an act, which, if committed by a sane person, would be crim- inal, and would subject the offender to punishment. If you believe from the evidence that at the time of the alleged killing (if you shall find from the evidence that there was a killing as alleged in the indict- ment), the prisoner. Sawyer, was so far insane as not to he able to dis- tinguish between right and wrong with respect to the act in question ; or if you shall find from the evidence that he was urf' ' to the commis- sion of the act by an insane impulse so powerful as to oi'coine his will and judgment, so powerful that he was unable to resist it, even though he might know and feci that the act he was committincj was wronir and A violation of law, no matter whether such insane impulse arose from % IMAGE EVALUATION TEST TARGET (MT-S) k // // .^*5^ .V4; ,.v M 4L /. r/j 1.0 1.25 .1* 140 25 22 U 11 1.6 — 6" V] ^ ^> ^>. ^5. '/ Hiotographic Sciences Corporation 23 WEST MAIN STREET WMSTER.N.Y. 14580 (716) 872-4503 V iV ^ 796 EVIDENCE AND PRACTICE. Siiwvcr V. Stato. mental or physical causes, or both, provided they were not voluntarily induced by himself; or, if you should find from the evidence, that the prisoner was insane on any subject, no matter upon what, provided you find the insane impulse to do the act charged in the indictment arose from such insanity, then, in contemplation of law, he would be insane, and you should acquit him." It is objected to that portion of the charge which informs the jury that " the ground relied upon b}' the defence in this case to overcome the presumption of malice is that of insanity," that it diverted the minds of tlio jurors from the other grounds relied upon to overcome the presumption of malice, and was calculated to confuse and mislead them. Lor'n"<» at the case as it appears to us from the evidence, and considering .Iio .'fcumstances and character of the homicide, and the instrument wiUj ■^'tiich, and the manner in which, it was perpetrated, it is difl^cult to •..'■;)i.ceive of anything that would overcome the presumption of maMoe, unl\ ■» it iic a disordered and shattered intellect. But we do not think the court erred to the injury of the accused in giving undue prominence to the defence of insanity. In the series of charges, 'n- cluding that above set out, the whole case was fully and very fairly placed before the jury, and the prisoner had the full benefit of the law as applicable to his case. It may be further observed that in that por- tion of the charge above objected to, the court was but stating the case as it was argued to the jury by the counsel for the defendant, for the charge immediately proceeds as follows : "In other words, it is argued on behalf of the prisoner that at the time of the commissi^jn of the act alleged in the indictment, he was not of sound mind," etc. We can- not say that the court misstated the positions of counsel or gave more prominence in the charge to the question of insanitj' than the counsel did in the argument. It is also objected to the charge that it was calculated to pre- judice the jury against the defence of insanity; that the jury were unduly cautioned to carefully scrutinize the evidence on that subject. The observations of the court in that respect meet our unqualified ap- proval. As stated by the court, where the defence of insanity is inter- posed to a criminal prosecution, the evidence relating to it should be carefully and intelligently scrutinized and considered, for the double reason that a really insane person should not be convicted, and a really sane one should not be acquitted and suffered to go unpunished for his crimes, on the false theory of insanity. ACTS AND DECLARATIONS ol' PKISOXKK. 7!»; Previous and Si'h.;«'f|iitiif Insanity. We find no error in the case, either in relation to the evidence or the charge of the court, and are satisfied from tlie evidence that the verdict and judgment are in all respects right. The judgment below is affirmed, with costs. EVIDENCE — ACTS AND DECLARATIONS OF PRISONER — INSANITY must exist at time ov act. State v. Hays. [22 La. Ann. 3l>.] In the Supreme Court of Louisiana, January, 1870. Hon. Jonx T. LrnEi.iNc, Chief Justice, " J. G. Tau.vkkrko ' '< R. K. IIOWKM., '< W. G. WVLY, " W. W. Howe, Associate Justice*. I. Evidence — Acta and Declarations of Prisoner. — In a criminal prosecution for the crime of murder, llie witnesses for tliu .■iccuseil may, under tlie pleaof insanity, be permitted to give to tlie jury the acts, declarations, conversations and exclamationg, they saw, had with, and heard the accused make at any time shortly before, at the time of, or after the killing. The objections to such testimony go to its effect. S. Previous or Subsequent Insanity will uot discharge the accused. It must bo shown to exist at the time the deed was dune. Appe.\l from the First District Court of New Orleans, before Abell, J. L. Belden, Attorney-General, for the State. McCay, Levy and J. B. Colton, for defendant and appellant. Howe, J. — The defendant was tried for murder, found guilty with- out capital punishment, and sentenced to imiirisonment in the State penitentiary for life. From this judgment he has appealed. It appears by a bill of exceptions that the defendant placed on the stand certain witnesses, and asked each of thera seriatim, "to state the acts, declarations and conversations and exclar'ations, they saw, had with and heard the prisoner mtike, at any tine shortly before, at the time of, or after the killing of Sinnutt tending to show the condition of bis mind ; wliich question and answer was objected to by the Attorney- 798 EVIDKNTE AND PRAf'TICE. Htute V. Havs. General of the State, on the ground that his (the prisoner's) statements, declarations and conversations were inadmissible, and were illegal. The court sustained the objection to the question and answer, in so far as to limit the same to the acts and the exclamations of the prisoner a short time previous to and at the time of the killing, and to tlic acts after the occurrence." In signing the bill the judge adds: " Every conversation for two or three months previous to the homicide, accompanying any act indicat- ing unusual excitement was admitted ; other conversations were ex- cluded." The defence in this case was insanity. In the solution of the ques- tion presented by this bill of exceptions, it becomes necessary, therefore, to in(iuire what scope is allowed tlie prisoner in establishing such a de- fence Ijy the enlightened spirit of modern jurisprudence. Insanity is a disease. It has its pathology and its sj'raptoms, and it would seem tliat its existence can be determined onl}' by a careful scru- tiny of those symptoms. The tree is to be known by its fruits ; the condition of the hidden mechanism is to be ascertained by those com- municated movements which are external and apparent. To this end the usual expressions of a mental state are original and competent evi- dence. If they are the natural language of mental alienation, they fur- nish satisfactory and sometimes the only proof of its existence. It is true, that such expressions may be feigned, and often are ; but whether they were real or feigned is for the jury to determine. Hence the rule prevails that as indicia of the mental condition, not only the acts, but the conversations, exclamations and declarations of the person may be shown. Of course this rule should not be extended beyond the neces- sity on which it is founded — mere narration or statement by the ac- cused, as that at a certain time he said or did something, or that at a certain time he was insane, must be excluded ; but testimony of such deportment, action, complaints, exclamations, declarations, andexpren- sions, as usually and naturally accompany and furnish proof of an ex- isting malady, ouglit to be freely admitted. We think it equally well settled that all such indicia occurring after the commission of the offence, may be shown, and that the judge there- fore erred in confining the testimony to acts done after the homi- cide. It is true tliat mania is often simulated, and it is quite likely, that the danger of simulation may increase after the commis- sion of a homicide ; but tliis consideration relates rather to the effect of the testimony than to its admissibility. It may have little weight ; but such as it has the jury must estimate. Previous or subsequent in- SUnSEQUKNT ACTS AXD CONDUCT. 799 Wluti K.lfvaiit and Wlu'ii Not. sanity in itself is no matter of excuse ; the mania must have existed at tho time the act was done ; yet, evidence of tiic presence of the malady either before or after tho act, is proper to be wcii^hed by the jury, for the purpose of forming a conclusion whether insanity existed at tiic time the alleged crime was committed. And this evidence, we appre- hend, may l)e identical in character with that whicii is admitted to es- tablish mental imsoundness prior to tlic act. ' For the reasons given, it is ordered that the judgment appealed from be avoided, and the verdict of the jury set aside, and that the cause be remanded for a now trial, according to law. Ciiief Justice Ludemng ami Justice Howell absent. EVIDENCE OF SUBSEQUENT ACTS AND CONDUCT. Commonwealth v. Pomeroy. [117 Mass. 143.] In the Supre le Judicial Court of Massachusetts, February, 1875, lion. Horace Ghay, Chief Justice. " JoH.N Wells, " .Iames D. Colt, " Seth Ames, " MAKcirs Morton, " WiLLLVM C. ENDICOTT, " Charles Ueve-ns, Jr., . Judges. Evidence of Subsequent Acts and Conduct. — Where insanity is relied on as a defence to crime, evidence of acts ami conduct of tiie prisoner subseciuent to its commisiion io not admissible to prove liia condition at tlie time of the offence, unless they are so con- nected with evidence of a previous state of mental disorder as to strengthen tho pre- sumption of its continuance at the time of the crime, or when they indicate permanent unsuuudness, which must ueccssarily relate back. Indictment for murder. Tried before Gray, C. J., and 3Iorton, J., who allowed a bill of exceptions, in substance as follows : — The defendant, a boy of the age of fourteen years and five months at the time of the offence, was tried on an indictment for the murder of 1 Grant v. Thompson, i Conn. 203; Kinne r. Kinne, 9 Conn. 102; Dickinson v. Barber. 9 MasB. 225; Norwood v. Marrow, 4 Dc?. A B. 442; McLean t'. State, 16 Ala. 672; McAllister r. State, 17 Ala. 434; Bacon r. Charleton, 7 Cush. 581. 800 EVIDENCE AND IMlACTKE. ('oiumoiiwoalth r, ronurov Horace R. Milieu, a child four years old, committotl at Boston on April 22, 1871. Tlie prisoner was arrested on tiic evening of the same day. On the next dxiy he was taken by the otlicer to view the body of bis vic- tim and admitted having killed the deceased ; and on the afternoon of that day one of the trustees of the .State Keforui Scliool talked with him privately at the station-bouse. On April 21, he was taken before the coroner's jury, where be testilied, and denied that he killed the child ; and afterwards, on the same day, be bad an interview with two lawyers, one of whom was counsel for him at bis trial. lie was committed to the jail on May 1, where be remained until the time of his trial. The de- fence set up was the insanity of the i)risoner. The defendant called George B. INIunroe, an ofHcer of the jail, and piso offered to call other oflicers at tiie jail for the purpose of showing the acts, conduct, and habits of the prisoner on and after May 1 , as bear- ing upon the question of bis sanity at the time of the homicide. The court, in its discretion, excluded the testimo ,-, as relating to a time too long after the bomicide and arrest to be material. Thf defendant sea- sonabiy objected to this ruling. Wells, J., delivered the opinion of the court. Upon the question of sanity at the time of committing an offence, the acts, conduct, and habits of the prisoner at a subseiiuent time may be competent as evidence in bis favor. But they are not admissible as of course. "When admissible at all, it is upon the ground either that they are so connected with or correspond to evidence of disordered or weak- ened mental condition, preceding the time of the offence, as to strengthen the inference of continuance, and carry it by the time to which the in- quiry relates, and thus establish its existence at that time ; or else that they are of such a character as of .themselves to indicate unsoundness to such a degree or of so permanent a nature as to have required a longer period then the interval for its production or development. The interval is to be measured, not merely by length of time, but also with reference to intervening events. These may be such as to account for the peculiarities manifested either by showing a sufficient originating cause, or by furnishing other explanations. It is for the court or judge presiding at the trial to determine, in the first instance, whether the facts offered to be proved would, if estab- lished, fairl}' justify any inference relating back to the time of the al- leged offence. This inquiry always and necessarily involves not only the question of intervening time and occurrences, but also the character of the manifestations and circumstances under which they were observed. It is, in a measure, a matter of judicial discretion ; 1 on April same ihiy. )f his vic- cnioon of liked with tea before tlie child ; o lawyers, iinitted to , The de- e jail, and f showing 1 , as bear- ;ide. The a time too idant sea- n offence, time may iiissible as that they or weak- itrengthen ch the in- elsc that ouiidness eq aired a lit. but also account rigiuatiug le, in the if estab- )f the al- not only character ey were scretion ; HUUSEyUKXT ATTS AND COXDLCT. 801 Kvliloiuu- of, Wlu'ii Iii!i(hnissil)lo, inasmuch, at least, that great weight and consideration will l)e aceorilfd to the judge wlujsu decision is l>rought up for revision. i It is for the party offering such evidi'iice to establish its competency against tlie double, and, in tiiis case, triple objection: 1st, tiiat it is subsequent in point of time ; 2d, that it is the party's own conduct of- fered in his favor ; and, 3d, that it is his conduct while under arrest charged with the offence. The defendant fails to show, upon his bill of exceptions, that the evidence offered and rejected was Cdiupetent upon either of the two grounds defined in the first paragraph of this opinion. If the ruling at the trial had been based solely upon the length of time that had elapsed, there would be ground for an argument, assuming the evidence to have been in other respects competent, that the period of only eight or ten days was too short a limitation of its admission to be a reasonable exercise of the discretion which rests with the court. But the question does not admit of separation in that mode. The ruling as to the time necessarily had reference also to the other considerations which affected tl o competency and materiality of the evidence as a basis from which to infer unsoundness of mind at the time of the hom- icide. That the prisoner had been under arrest upon the charge for more than a week and had had interviews witii counsel and others, ap- pears from the bill of exceptions. That the acts, conduct and habits of which proof was offered, were of any special significance as indicating mental disease, does not appear, and is not to be assumed against the ruling. In a case of such vital consequence to the party excepting, we should be unwilling that any right should be lost to him by reason merely of an omission to state in detail the evidence which was offered ; we have ac- cordingly permitted the prisoner's counsel at the argument to mnkc such statement of the evidence as he deemed necessary in order to present the whole question before us, with the view to allow an application to have the exceptions amended if the case should appear to require it. But we are satisfied that any such amendment would not avail him. The evidence offered and rejected was, in substance, that the pris- oner ate with a hearty appetite, sleiit soundly and quietly, and in con- versation and manner evinced no remorse, or sense of guilt. In the evidence relied on to show the mental condition of the defendant prior to the homicide, it is not contended that there was any marked indica- tions of the existence of actual insanity, nor that, with the exception Shaller v. BumBlcail, 00 Mass. 112, 1;!0 ; Conimonweallh r. Coe. 115 Mass. 418, 505. 61 802 KVIUKNCK AND PKACTICK. Siiidrani i». rcojilc. of an apparent absence of moral susceptibility, or want of moral sense, there was any relation or correspondence bi-twoen the evidence pre- ceding and tliat subsequent to the homicide, whicli gave to the latter any especial significance. We do not think, therefore, that a disclosure of the whole evidence would show that there Avas error of law or of judi- cial discretion, in limiting the evidence of subsequent conduct oa the part of the defendant, offered in his favor. Exceptions overruled. EVIDENCE— TEMPER OF I'RISONER— FITS OF PASSION— ECCENTRIC- ITIES - CONDUCT UF TRIAL — REMARKS OF JUDGE. SixDKAM V. People. [88 N. Y. 196.] Jnthe Court of Appeals of Neio York, February, 1882. Hon. Charles Andrkws, Chief Judge. '• Chaulks A. Rai'ai.i.o, Thkodokk Millkk. Ronr.RT Eakt, Gkokck F. Danforth, FiuNcis M. Finch, Benjamin F. Tracy. 11 II II Associate Judges. ) 1. Temper of Prisoner— Fits of Passion.— Where a homicide is done with premedita- tion and deliberation, uvi(ii;iice that thu prisoner had an irascible temper or was subject to fits of pasuiou for slight causes in incompetent. 9. Evidence — Eccentricities of Prisoner Inadmissible. — Evidence not offered to prove insanity, but soh'ly as bearing on tlic iincstiou of intent, deliberation, and pre- meditation, that the conduct of llie prisoner prior to the homicide was characterized by eccentricities and peculiarities causing criticism with reference to his mental cap- acity, ij inadmissible. 3. Conduct of Trial— Remarks of Judge. — On atrial for murder, certain letters written by the prisoner after the homicide were introduced in evidence, in commenting upon which in his charge tlio court said : " They exhibit a reckless depravity of nature, desti- tute of remorse or regret, the reckless spirit of a desperado." Subsequently the court told the jury to disregard what had been said about the letters and to form their own conclusions. Held, no error. The court also said that these letters exhibited a " high order of intelligence," but afterwards withdrew the words "high order of." ffeld, uo error. Eruou to the general term of the Supreme Court in the First Judicial Department to review a judgment affirming a judgment convicting the EVIDENCE OF ECCENTRICITIKS. 803 limdiiiissihlo, When. noral sense, idence pre- ) the latter I disclosure M»r of judi- luct on the verruled. CCENTRIC- E. ^82. i. th prcmedita- or was subject lot offered to ition, and pre- cliaracterizcd is lueutal cap- Icttcrs written iinenting upon nature, desti- ntly the court orm their own ibited a " liigh of." ^eld, uo I'st Judicial victing the plaintiff in error of the crime of murder in the first (k'grce. The facts are stated in the opinion. James IJ. McClelland and William F. Kintzing for tho plaintiff in error. John Vincent, Assistant District Attorney, for tho People. Rai'ai.lo, J. — Tho exception wiiich tiie counsel for the plaintiff in error has mainly urged upon the argument of this cause is that taken by him totlie exclusion of tlie evidence of David Weil, as to peculiari- ties and eccentricities in the conduct of the prisoner. This evidence was not offered with the view of proving insanity or as an excuse or defence, but solely as bearing upon the question of intent, and deliberation and pre- meditation, and thus affecting the degree of the crime. The counsel for the prisoner offered to prove that for a numV)er of years past the prisoner had been characterized by peculiarities and eccentricities of conduct which had caused criticism with reference to his mental capacity. Also that he was a person who had been known to be the victim of inordinate passion, giving expression to it in various ways and at various times ; and this offer was stated to have been made for the purpose of enabling the jury to consider tlie character, the mental condition of the prisoner, prior to and in view of the circumstances of the killing, in order that they might be enabled to pass upon the grade of homicide, whether murder in the first or second degree or manslaughter in the third degree. From the discussion between counsel and the court at the trial it ap- pears that the evidence was claimed to be admissible, upon two grounds : First, as bearing upon the question whether the prisoner's act was the result of impulse and anger, or a deliberate and premeditated design to effect death ; and secondly, upon the question, whetlier the prisoner had a mind which, under the circumstances detailed in the case, could have formed a deliberate and premeditated design to inflict death ; it being at the same time avowed that the evidence offered did not amount to proof of insanity. In considering the first ground upon which the evidence offered was claimed to be admissible, it is necessary to look at the circumstances of the homicide, as developed by the evidence which was before the court at the time the offer was made, for the purpose of ascertaining whether there was any evidence that the shooting was the residt of sudden anger or im- pulse existing at the time, and whether the question whether the homicide was committed in the heat of passion, fairly arose in the case upon the evidence already in. We do not intend now to decide that even if that (piostion had been presented by the evidence, i)roof of the description of- ferred would have been admissible, but we are clearly of opinion that if S04 Evn)i:x(i: and pkactick. Sludrtiiii r. Pooplf, the evidi'iicc discloNeil no circumstancos indicntiiifj that tlic homicide was coiniiiitli'd under the iiiUnoiicc of provofation at the time, or sudden anger, evidenoo that the prisoner had an irascible temper or was subject to fits of passion from sliglit causes was not a(hnissible. Such proof •would not of itself have authorized an inference that lie committed the actunder a sudilcn impulse, attributable to the eccentricities of his char- acter, in the absence of any circumstance occurring at the time which tended to excite his passion. At the time the evidence was offered the prosecution had just closed its testimony, and the witness Weil, was tiie first witness called for the defence. The evidence on the part of the prosecution was to the effect that on the da}' preceding the killing, the prisoner who had up to that time, been a lodger in the house of the deceased and her husband, had re- ceived notice to (piit, and had left in the evening, using angry expressions concerning the deceased and threatening to return the next day and make a bloody row. At about ten o'clock the following morning he came to the house and entered with a pass-key, and was accosted in the hall by Henrietta Crave, a step-daughter of the deceased. She testified that he then appeared angry and excite saw the slio()tiiij^ and con- firmed the testimony of Henrietta as to the circumstances. This was all the testimony in tlic case ri-hiting to tlie circumstances of the killing'', at the time the prisoner's counsel offered to prove his eccentricities, and his jiassionate cliaracler. From tiiesc circumstances it ajjpeared thai whatever passion the prisoner was lalioriiijr under he broujrht with him to the house ; and that it. was not excited by anything that occurred tlierc. His violent temper could not, legitimatt'ly, be taken into consideration by the jury for the purpose of reducing the grade of his offence, when the i)rovocation, if any there was. liad occurred the day before the killing. If his acts were such as to satisfy tiie jury that the killing was with premeditation and deliberation, his bad temper or eccentricities of character, not amounting to insanity, could not dctrac't from the effect of his acts, or shield him from respon- sibility therefore; and w ■ concur with the learned judge who delivered the opinion at general term, that there was no legitimate connection between the eccentricities and peculiarities of character sought to ])c shown, and the deed of the prisoner, as the evidence stood when the offer was made. The declarations of the prisoner in respect lo his provocation came in at a later stage of the case. The second ground upon which the offer is attempted to be sustained is equally untenable. The counsel for the prisoner, while conceding that his offer was not to prove insanity, claimed that the evidence bore upon the question whether the prisoner had a mind which, under the circumstances, could have formed a deliberate and premeditated design to inflict death. That is, that although the prisoner was a sane man, and capable of committing manslaughter, or murder in the second (Icgi'cc, he was under the circumstances incapable of committing mnr- der in the first degree. The novelty of the proposition is admitted by counsel, but the argument in its favor is based upon the introduction into the statute defining the offence of murder in the first degree, of a new element, viz. : Deliberation, in addition to premeditation. And it is contended that this change in the statute opens the door to proof of the description offered, for the purpose of showing that the accused was so far the victim of bad temper and inordinate passion, that when angered he was incapable of deliberation. "We cannot adopt the view of H(M5 KVIDKNCi: AM) l'i;\(THi;. Slmlraiii i-. lVt)|ik', the learned oouiisel. To do so would l)i' not only an innovnHon upon the law, i»ut oiw of a most mischU'vous •••ndtncy. It would afford a shield to the most dangerous (tla.ssi-s of the conununlty, and tlio»e most prone to comniil the crinie of murder. Tlio violence of their passions, and their wicked impulses which it is the object of the law and its pun- ishments to restrain, would he made to paliate their offences, and the more violent the character of an offiMider, the surer v;ould behisimmtm- ity from the extreme peiuilty. The facts of premeditation and deliber- ation in a case of murd the charge of the judge to the jury. Counsel excepted to the expression of the judge, '' there is no doubt about the assassination." The judge explained this by stating that he meant there was no doubt about the killing, and on referring to the portion of the charge where the expression was used, it appears that it was so explained at the time ; what the judge said was, " there is no doubt about the ass:i:sination, that the deceased person was killed ; there is no doubt cither that she was killed by the prisoner." An exception was also taken to a statement in the charge, *' the testimony seems to be overwhelming in favor of his having uttered it — that he would return on Wednesday and make a bloody row." On his attention being called to this part of the charge the learned judge stated to the jury that he changed that phraseology, and said that he thought the testi- mony was preponderating to that effect, but that he was onl}' expressing an opinion, and that he left all the questions of fact to the jury ; that there was to be no thirteenth juror in the box. Certain letters of the prisoner, written after the shooting had been put in evidence, and in commenting on these the judge said that " they exhibited a reckless depravity of nature, destitute of remorse or regret, the reckless spirit of a desperado, who, looking upon his life with indifference, could meet apparently any doom for the gratification of a malignant passion." These letters were before the jury, and they could put their own con- struction upon them. No one can read them without feeling that they fully warranted the comments of the judge. But on exception being taken to his remarks he instructed the jury to disregard what he said about the letters, and form their own judgment. The statement in the charge that these letters indicated a high order of intelligence was also rnisoxKU s appkakanci; at thiai,. Ho; Jury May iiol ('»)iiNl(U;r. iHon upon il afford a llioHc most I" passions, h1 its piin- ■i, and tlio lisiuimun- id doliber- c evidence stances of inordinate :nce which the jury. no doubt ig that he ng to the irs til at it icre is no led ; tliere exception seems to he would tion heinT the jury the test!- xpressing my; that srs of the ;e, and in reckless ess spirit )uld meet )assion." )wn con- hat they on beinj; t he said fit in the was also inodilied by tlie judge, by withdrawing the words "high order of," and saying that they indicated intelligence. We nnd no legal error in any of the portions of the charge excepted to. Conunents upon the testimony, so long as the judge leaves all the questions of fact to the jury and instructs them that they are the solo judges of mutters of fact, are not the sui)Ject of legal exi-eption. It is desirable that the court should refrain, as far as possii)li', from saying anything to the jury which may inlluence them either way in passing upon controverted questions of fact, and perhaps comments on the evi*^ dence might be carried so far as to afford ground for assigning error. But in the present case, whenever its atteiitiorj was called by the pris- (oner's counsel to any part of tiie charge v n h jic considered us an mfringement upon the province of the jury, the court promptly and clearly withdrew the remarks objected to and ompliaticnily reminded the jury that they alone had the right to Ictermine the lUcts. Th> judgment should be allirmed. All concur. Judgment affirmed. RIGHT OF JURY TO CONSIDKIl PRISONER'S AITEARAJN'CE ON THE TRIAL. BowDEX V. People. [12 IIiui, 85.] In the Supreme Court of New York (First Department), October Term, 1877. Hou. NoAii Davis, Presiding Judge " John R. Bkadv, \ t j " CuAULJJs Damkls. I ' ^"' Kightof Jury to Consider Prisoner's Appearance at TriaL-Tlie plaintiff in error was tried and convicted for lal«ely.swt!iinii),' to his qaalillcution as bail in i. rriniinal rase. Upon tlie trial the prisoner clainu'd tliat he was at tin- time of the commission of the offence, some six months previous to the trial, insane from delirium tremens. The Judge charged the Jury that, in deciding u|>on his insanity, they mi^ht take into account his physique and apparent age, and consider his conduct upon the trial. There was no evidence tending to show that his physical appearance, .six months after the dic^uase, would be affected thereby. Held, that the charge was erroneous. Writ op Ekuou to the Court of General Sessions of the City and County of New York to review the conviction and sentence of the plain- tiff in error of the crime of perjury. 808 EVIDENCE AND PRACTICE. JJowdfii V. rcoplo. Charles W. Brooke, for the plaintiff in error. B. K. Phelfis, for tlie defendant in error. Davis, P. J. — The plaintiff was inuicted ana tried for perjnry in swearing to his qualifications as bail in a criminal case. Abundant evi- dence was given to justify his conviction. lie alleged, as part of his defence, that at the time of swearing to his qualifications he was so in- sane from delirium tremens as not to be responsible for his acts. Upon this alleged defence, some evidence was given, and so much that the court submitted tlie question, as was its duty, to the jury. In charging upon that branch of t'ne case the learned Recorder, amongst other things, said: "I ask you, gentlemen, to look at the physique of that prisoner and his apparent age, and consider his con- duct, if you please, during this trial, and tell me whether you believe such a man was suffering, or is suffering from delirium tremens, or any attack of it. You have to judge from all the evidence and from the ap- pearance of this prisoner." After the charge was concluded, the counsel for the prisoner, amongst other things, excepted as follows : " I also except to that portion of your honor's charge in which you said to the jury to regard the prisoner, his apparent age, and his demeanor during the trial, and his appearance, and say wlicther he had delirium tremens, or not, upon the occasion when he signed this bond and did know what he was doing." To this exception the Recorder said : "I did not say so; I said let that enter into your examination whether you think a man of his physical appear- ance, and his manner here was, at the time, a man so deprived of reason that he was unable to know what he was doing. ' ' To the charge, as thus explained, the counsel for the prisoner also excepted. It appears that the offence was committed some six months before the trial. The effect of the charge, was, therefore, that the jury might judge from his physical appearance and manner on the trial, whether the prisoner could have been at the time of becommg bail and taking the oath, six months previous to the trial, so far affected by delirium tremens, as to be so far deprived of reason that he was unable to know what he was doing. This was submitting to the jury an inquiry altogether beyond their province. It carried them into a region of the merest speculation. It would, probably, have been impossible for the ablest expert to have said from the prisoner's physical appearance and manner a* the trial whether or not, he had had delirium tremens six months previously. There was no proof that that disorder leaves any infallible mark of its existence, URLXKENXiiSS. 809 Declarations of Docfascd. perjury in uiulant evi- part of his was so in- cts. Upon ill that the Recorder, 3ok at the r his con- ou believe ns, or any )ra the ap- ', amongst 311 of your soner, his •pearanee, occasion To this that enter il appear- of reason oner also ef ore the ry might whether 3 taking delirium to know •nd their ion. It ave said whether lere was istence, from which jurors or any otl.or person can say six months, or any other period aftern-ards, that a person liad been its victim, ncr was there any proof of the absence or presence of any indications in the " pliysi- cal appearance " of the prisoner that would show that lie had had, or had not had, the delirium tremens at any time. The charge was, there- fore, open to the criticism and objection that it loft to the jury to infer from the present physical ai)i)earance of the prisoner whothcr'he could have been non compos mentis from a disease whicli he was allco-ed to have had six months before, without the sliohtest proof tliat his pM-sical appearance would have been so affected l)y the disease, as to Justices. 810 EVIDENCE AND PRACTICE. Warren v. CoMunonwi'altli. John Warren at the August, 1860, term of the Court of Oyer and Terminer for the county of Berks, was charged with the murder of a woman who was unknown to the jury. He was convicted of murder in the first degree, and appealed. John S. liichards, A. L. Ilennershortz and C. P. 3fu}ilenburg , for the prisoner. James B. Bechtel and Samuel L. Young, for tlie Commonwealth. Thompson, J. — [After passing on question as to challenge.] The third, fourth, fifth, sixth, and seventh errors may be considered together. They all relate to offers of evidence of the same general character, overruled by the court and excepted to on the part of the prisoner. They may be stated, in short, to be the rejection of the fol- lowing questions: First — "Whether the prisoner was not generally drunk when out of work?" Secondly — "Did he not move quicker when drunk than sober? " with a view to follow it with proof that he did move quickly on the occasion of the killing. Thirdly — "To prove that his wife went to Kalbach's on the morning of the day on which the kill- ing took place and forbade him from selling Warren liquor, saying ' that he was drunk and abused her.' " Fourthly — "That Mrs. Warren had pledged a watch some time before for liquor ; that Warren got more on account of it — took it out in liquor?" And, fifthly, "To show the effect liquor had on Warren, beginning several years back, in making him wicked and crazy, and that it had a peculiar effect on his constitu- tion and brain." The object of all this testimony was, of course, to raise an inference that the crime was committed under the influence of intoxication, and to such an extent as to deprive the prisoner of the capacity to deliber- ate, which the court throughout properly conceded was an essential in- gredient in the crime of murder in the first degree. To reduce the grade of the crime, therefore, when the evidence on the part of the Commonwealth was such as to make out a prima facie case of murder in the first degree, evidence showing want of deliberation, or, which is the same thing, an incapacity to deliberate, is of coui'se proper to be re- ceived. But it behooves the prisoner, in a case where death is pro- duced by repeated brutal assaults on a helpless person, at considerable intervals of time, resulting at last in death, to meet the question of pre- meditation by competent evidence, and which would serve to show a condition and state of mind in which it was at least improbable that de- liberation could have directed his acts. Unexplained, the case here was such that a jury could scarcely have failed, if they regarded their oaths, DRUMvEWKSS. 811 IiTolt'vaiit Kvidi'iicf Oyer and rdcr of a murder in g, for the jalth. Dnsidered e general irt of the f the lol- generally ? quicker at he did rove that I the kill- ing « that irren had more on show the 1 making constitu- nference ion, and deliber- ntial in- duce the t of the murder fvhich is ;o be re- !i is pro- iderable I of pre- • show a that de- le re was r oaths, to find it a case of wilful and premeditated killing. There was no at- tempt to prove actual intoxication at the time. Could it have been in- ferred from the testimony offered ? That he generally got drunk when out of work was a matter of habit, not of fact. It did not prove either the fact of being drunk at the time, or that he had no work. It was the fact that was wanted — from that the inference of want of deliberation might have been 'rawn. But it was asked here to infer that he was out of work, and, therefore, drunk, because he was generally so when out of work, and hence to infer from the inferred drunkenness that he could not act deliberately. This mode of proof the law will not sanction, and we need only state the proposi- tion to demonstrate the fallacy of the attempt. Again, that his habits of motion were quicker when drunk than when sober. This is of the same character as the last, and subject to the same objection. What his wife said or did was not evidence in favor of the prisoner. It was hearsay ; and her acts were irrelevant. This is sufficient answer to the offer in evidence in regard to what she said at Kalbach's and as to her acts in pledging the watch. The last of these offers was to prove the effect liquor had on the pris- oner, beginning several years back ; that it made him violent and crazy and quarrelsome with his friends. Had this ])een preceded or followed by proof of intoxication at the moment of the commission of the crime, it might have been proper. But it seems to us not to be distinguisucu in principle from the questions already disposed of. It was an effort to raise an inference of intoxication from the violent acts of the prisoner in consummating his crime, unaided by proof that it was the impelling cause to its commission. Of what avail would it be to show the effect of intoxicating liquors on the prisoner, and that, when taken to excess, it rendered him crazy, violent anation," to such id form I prayer the first I of the jrade." ; under ; point. )n, but lind of murder sonable slight, ion, to operate as stated in the point, and wc tliink tlie learned judge dealt with it properly in declining to affirm it. From a careful scrutiny of the whole case, we are constrained to say that we see no error in the record, and that wc have no power to save the prisoner from the legal consequences of his acts. But we cannot dismiss the case without expressing astonishment at the criminal apathy on the part of a number of persons, men and women, who witnessed the assaults of the prisoner on the deceased, which re- sulted in death, without an effort to save her. This is as unusual amongst our people as it is unaccountable in this instance. We notice it to condemn it, not through any apprehensions that the example is likely ever to be followed. Our people, with this exception, have too much generosity and courage for this. Judgment affirmed and record remitted. EVIDENCE OF ACTS SHOWING SANITY. United States v. Shults. [6 McLean, 121.] United States Circuit Qourt, Ohio, October Term, 1854. Before Hon. John McLkax, Associate Justice ol the Supreme Court of the United States. 1. Insanity — Test of Punishability. — An inaividual is liable to punishment when he can discriminate a right from a wrong act. 2- Evidence of Acts Showing Sanity. — When insanity is set up a.i a defence, his liability to punishment is best ascertained by considering his acts. Thus, when a person is charged with theft of money, evidence of his concealment of the offeacc, his endeav- ors to elude the officers of justice, and his use of the money stolen, goes far to show that he is sane, and to contradict contrary theories as to tho state of his mind. This is an indictment against the defendant, charging him, while em- ployed in carrying the mail of the United States, on a horse route, with the abstraction of certain letters, which contained bank-notes and other articles of value. Pica not guilty — juiy sworn. John Keller, who is postmaster at Mount Ephraim post-office. Noble county, in Ohio, states that the defendant carried the mail from Sarah- ville, in Noble County, to Washington, in Guernsey County, a distance of twenty miles. In June, latter part, or first of July, witness mailed 1 .S14 KVIDi:XCE AND riUCTICK. Uuitcil States v. Shults. two letters for California, which were forwarded to the distributing oiric'C at Wlieeling or Cleveland, directed to Nicewall. The envelope was returned to witness as being found in the road more tlum a month after it was mailed. The second letter was rci)orted to have been found on defendant's route. Anotiier letter was found on the same route, which had been mailed on tlie Cth or 7tli of June. Mr. Cliance says there must have been two violations of the mail while defendant carried it, which was about a week. Witness found a letter on the route on Friday after defendant commenced carrying the mail on the route. Another letter Mas found on tlie route which must have i)assed through the office of witness. Mr. Forman is postmaster at Senecaville. lie designates a letter picked up on the route ; another letter found on the road must have been a letter forwarded in the mail. Other witnesses proved that other letters were found on the route, which had been mailed by the postmasters on the route, and which, from their face, purported to have contained money. William Young saw defendant first of June, and received from him a debt of sixty or seventy dollars. He had a watch, and witness asked him how he got so much money ; he replied that he had sold a colt for $60. Witness exchanged with him $10, giving silver for paper ; next day he came and bought $30 in gold from witness. Mr. Renderneck arrested the defendant near Marietta, in a wood boat, at which time be admitted that he had taken from the mail $76. Several witnesses were examined to show mental imbecility in the de- fendant, so as to be incapable of committing a crime ; and his defence rested on this ground. Several medical gentlemen were examined, who differed somewhat in their opinions, some of them stating that in their view he was not a proper subject of punishment. In the charge to the jury, the Court (McLean, J.,) said; Thfre seems to be no doubt that during the short time the defendant e . > I 'oe mail he repeatedly violated it by abstracting letters frojvi :r. . -us is established by the numerous letters picked up on or near tV cute, which had been mailed at one of the post-offices on the route, or were carried on it ; and by the confession of the defendant that he had taken from the mail $76. He was destitute of money before he was employed as carrier, after which it appears he had money to a considerable amount. All this evidence is uncontradicted, and the only ground of defence is mental imbecility. This defence has often been made, and much has been said and writ- ten upon the subject. Nothing is more common than for medical men to differ as to the fact of insanity, which should exculpate an individual ACTS AM) (OM)UCT. 815 IJilcvMiit to show Saiiilv, listiibuting le oiivolope an a niontli buen found anie loute, )f the mail «s found a Jiying the .'hich must postmaster 2 ; another II the mail. 'Ute, which from their rom him a ess asked a colt for per; next .'nderneck ;h time be in the de- s defence ined, who t in their i; Thf.re ...;:1 ':0.e = 'US is ' 'oute, , or v.ere ad taken niployed nderable round of nd writ- eal men dividual from punishment. Wliere the insanity is in a degree which destroys the reasoning faculty, tliere can be no difference of opinion amongst professional men or jurors. But wliere the individual is sul)ject to occasional aberrations of mind, or where the mind socras to be under peculiar excitement and error on a particular subject, as is often tlie case, and rational on other subjects, or where the individual reasons illogically and strangely, which brings liiin to results in action which violate the law ; in all these cases, and others which might be enumer- ated, a close investigation is required, and a wise discrimination should be exercised. In such cases, the important fact to be ascertained is, whether the person charged can discriminate between right and wrong. If he be unable to do this, he is not a proper sul)ject of punishment. And this fact can be best ascertained, not by any medical theor}', but by acts of the individual himself. Every person who commits a crime reasons badly. The propensity to steal in some persons is hard to resist. Where the moral development is weal nd the passion of acquisitiveness strong, it will often prevail. This, in one sense, may be evidence of a partial insanity, but still the person is a proper subject of punishment. And there is no other test on this point, except the knowledge of the indi- vidual between right and wrong. And this knowledge is best ascer- tained by the acts of the individual in the commission of the offence, and subsequently. Does the individual commit the offence by embracing the most favora- ble opportunity, in the absence of witnesses, and under circumstances likely to avoid detection? And if he steal money does he account for the possession of it in an honest way? And does he, under an appre- hension of an arrest, endeavor to elude the officers of the law? All this conduced to show a knowledge that he had not only done wrong, but that he was liable to punishment. The defendant in this case accounted for the amount of money he had in possession by saying he received it as the price of a colt. He changed the notes he had for gold and silver, knowing that the notes might not be current at the place to which he might go. Or he might fear that the notes might be identified by those who forwarded them in the mail. On either supposition it showed a sound reflection on the consequence of his acts should he be arrested. He absconded, and was arrested several miles from home, on his way to tiie West. He was found in a close room of a boat, the door of which was locked ; and it is proved that when he came to tlie boat the pi-evious evening, he en- gaged the room and requested that the door should not be opened to any k 81G EVIDENCE AND PRACTICE. United States v. Shults. one. This shows an apprehension that he irould be pursued, and a de- sire to escape the pursuit. These acts would seem to be unmistakable evidence of a sense of guilt, and a desire to escape punishment. lie acted under a motive which usually influences culprits. When carrying the mail, on a sug- gestion being made to him that he might steal from the mail, the peni- tentiary immediately occurred to his mind. He bought and sold articles, and evidenced in such matters no deficiency of mind. He knew the value of money, and understood the matter of exchange, and the un- currency in remote parts of bank notes. Upon the whole, gentlemen, if you think from the evidence in the case that the defendant in violating the mail knew he was doing wrong, and that he was liable to be punished for the act, he is a proper subject for punishment. It is true he did not conceal the letters he took from the mail, but left many of them scattered along the road he travelled, which shows a great want of caution, still, if the other qualities of his mind were in such rational exercise as to enable him to discriminate right from wrong, you will find him guilty. The jury found the defendant guilty, and the court sentenced him to ten years in Jie penitentiary. DELIRIUM TREMENS — T1:MP0RARY INSANITY — NO PRESUMPTION of continuance — test. State v. Sewell. [3 Jones (L.), 245.] /n the Supreme Court of North Carolina, December Term, 1855. Hon. Frederick Nash, Chief Justice. •* Richmond M. Pearson, " William II. Battle, \ Judges. 1. Delirium Tremens — Temporary Insanity — No Presumption of Continuance.— Delirium tremeua to bo available as a defence must be shown to exist at the time the act was done. In the case of temporary insanity there is no presumption of continu- ance. S. The Capacity to Distineruish between the Biirht and Wrong of the Act U the test of unpuaishable insanity. Indictment for murder ; tried before his Honor Judge Saunders, at the fall term, 1855, of Perquimons Superior Court. STATK r. SKWKI.I,. S17 Kvidciicc in Hie rusr , and a de- a sense of sr a motive ) on a sug. , the peni- Id articles, knew the ad the un- ice in the ng wrong, er subject took from travelled, ies of his icriminate 3d him to [JMPTION 1855. auance.— e time the t contlnu' &.ct Is the DER8, at llu. cMicumsluiHvs ..f this case .lisdoso-l the fmi tl.Mt the i.risoner had sh<.t an ol.l free ne-ro wonuiii (a<.v,l alM„it Go) j,, ,|„, ^.^os and f-u- with a pisl-.l ; that about an h..t.r aftnwar.ls, l,e was found'o,, a j.alel witli her, and tli.To were indications that he luul ravished lier us she lay msonsible. There was u jnj.' of ]i(,u( • on the same pallet. There was no question in this court as to the fact of the killing, and tliereforo the voluminous and minute evich-nee sent up as part of the case in relation to the transactions connected with tlie crime is not re- ported The defence ..f the pris„„er was insanity, and upon Hiis point the ev.dencc was as follows : David Beach swore he saw the prisoner on the ^\ erisoner got better in three or four days ani left the house, being driven off by the landlord. When he left the prisoner, he advised him to desist from drinking, for that a very little indulgence would bring back the same results. He stated that crenor- ally, insanity from this cause was of short duration, but not ahvavs so Thomas Garret testifu'd that in January or Februarv preceding th^ hom- icide, which was on the l.'5th of April, the prisoner came to his house in Camden County, apparently intoxicated; he had been drinkinc very freely, and was so tremulous that he could not clean some funiiture which he undertook to clean and which was his occupation. Witness saw him catching at something near the fire, on one occasion, and asked him what he meant; to which he replied that his jaws were locked, and he wanted to get the tongs to unfasten them. One Wigginston stated /^1H i:\ ii)i;\( r. a\i> I'ltACTirK. •>lillt' r. Si'woll. that he liiid known tlie prisoiuT in Ciiriitiick (Joiinty ; tliut in tlio fnll of I'SiVI. he Wiis ill, Ills house, sunl iU'lcd so vioh-nlly ii'^ to ni:ikc witness iifniid to trust liini alone. He wiis confined iit witness' honse for scv- ( Till (hiys, and acted irrntioiially. Witness thon!_dit lie was finite ont of his jnind. I'lisoner had heeii drinkinjj: freely. !!(> stated that heforehe hesjtun to drink, prisoner's behavior had heen goo/-Oeneral, for the State. J. P. Jordan, for the defendant. Nash, C. J. — The elllcacy of a plea of incanity in shielding from punishment for crime ; the necessity of drawing the dark picture of such a state of mind, and tracing out the minute and delicate shades of this sorest atfllction to which humanity is subject, is not required at our hands at this time. It is not denied that insanity, to protect from punish- ment, must exist at the time the act is perpetrated. This is indeed the very substance of the defence ; for however great the disease, and rRESlMITI(»\ (H < ONTI.M A.\( K. Silt Dofs not .\|i|ily to 'I"(i,i|)iirary Iiis.iniiN . tllO filllof ikc witness io for sev- iiite out of t before he 'i. IJrotlu'i's IS coinniit- if)nii[ that his inind ; lie became cs, tli.'it at uy c'oiiver- )re, it wag mption of tsoner was t devolved was done, e prisoner l)i'rpetra- roning in the use of spirits. Ad'vv that, he was proved to have been in nis rigiit mind ; but a ft'w days before on that which the transaction oe-'irred. one witness thought, 1,1. was not in his riuht mind. His honor instructed the Jury as foll-.ws: •'The general presuini)tiou is that all persons aiv sane unlil something is shown to the coiitraiT. When derangement or partial insanity is shown, and there are lucid intervals, it is still necessary for one relying on in>anity to show that the act was done when he was laboring tinder this parox- ysm of insanity." His honor then proceeds to apply these general principles to the case before him, stating the grounds upon wliFch the State I'elied, and those upon which the prisoner rested his defence, and winds up by leaving the question of sanity or insanity of the prisoner at the time of committing the act to the Jury. This case is not one of permanent insanity, nor is it one of lunacy. Mr. KusrselP detines a lunatic to be one laboring uiidr r species of demoiitia acridetifalis vl advoititui, but distingui.-liable in this, that he is afllicted by his disorder, only at certain periods or vicissitudes, hav- ing intervals of reason. It more properly ranges :;tself under the class of partial insanity, though strictly not so. Partial insanity imports that the person is in- sane on one or more particular subjects.^ This species of insanity is termed monomania. The derangement of the prisoner was neither a permanent one, nor lunacy, nor strictly partial, ])nt a temi)or:.ry one arising from the too free use of ardent spirits. It was temporaiy, for it lasted only during the time the effects of the spirits were upon him. It had not in his case reached that period when the mind becomes en- tirely destroyed. His physician cured him of the attack of delirium tremens, and stated that in most cases the alienation of mind was but temporary. It was shown that after that attack, and before the^ict was committed, he was restored to his understanding, and there was no evi- dence that delirium tremens existed after the time first spoken of. It was insisted by the prisoner's counsel, that the presumption of sanity, in favor of the State, did not arise ; but that the presumption of insanity did on behalf of the prisoner ; and that sanity must be shown by the 1 Iluss. Cr. Law, 7. " Shelfoi'il oil Lunatics, ji. 6. 820 KMDKXCK AM) I'KACTICK. Slate r. Clnistmas. Stnto i at K'jHt tlmt tlir i»r(>smvi|itii)ii wns iiol in fiivor of tlio Slato. This priiiciiili'. if line, ilnis iKil, ii|t|ily to tliin (•.•isc. II(M'C was no lunacy ; IK) n-ciii ri'iH't' of tlu' disease at ctTlain periods; hnt ft 1en)|)nr!ny iiisati- ily, ])r(iiiu'iit on ''V (In- i/ii.soncr's own procurement, and inponeral, dis- appearinuf wiien tiie innnediatc cati-^e was leuioveil. Diiinlxi'nness, in giMieral, is no excusi! for ciinie. Wiieii it is cari'ied so fai" as to cause delirium tremens, any act l)ei|ietrated inider tlie diliiinm is excused, tiioiLi;li tlie disease is but temporary; and wlien continued so far as to detiiroiie reason altoiretlier, tlu- i)rosu.nii)tion of law is removed ; because tlie disease is tlieii pi'rm'.inent ; the law looks only to tlie state (;f the mind, and not to the causi' prodin-ins; it. His honor is sustained in his !iencral i)roposition by Lord IIai.k.' lie lays down the doctrine more strongly tlnin it is done here; and al- tliouij;ii wo fnid it nowhere stated in tlie same terms, wc find it nowhere contradicted in our elementary works on crimes. In this case, the general j)resumption of law was not removed, and it was incumbent on the prisoner to show that at the time of ])erpetrating the offence, he was insane. After his honor had closed his remarks, particular instructions were asked, as set forth in the case. His honor had already given the in- structions required. There is uo errcr. Per curiam. Judgment affirmed. HEREDITARY INSANITY — EVIDENCE MUST BE NOTORIOUS. StaTK V. ClIRISTMAa. [t; Joaes (L.), 471.] Li the Supreme Court of North Carolina, June Term, 1859. ' Hon. RiCHMONO M. Pkarson, Chief Justice.. '* WlI.I.I.\M II. IJ.VTTLK, I " TUO.MAS Rlfi-in. J '^"'^Ses. Where Hereditary Insanity Is ofFcn-rt a.'* an excuse for crime, it must appear that the in- sanity actnuUy i'.\ists in the prisoner; that it is not temi)orary, but notorious, and of tho same epecies as other nieuiberet of the family have been alUicted with. Indictment for murder tried before Cai.dwell, J., at the last Superior 1 P.O., to). I,,U. Court of Orange STATK /•. ( IIKIST.MAS. H-21 KvldciHc of Iiisiiiilty. Mto. Tliifl no lunacy ; I'MiT iiiHiin- 'ucriil, (lis- t'linosH, in IS to CJHISO ■< cxoiisod, () f;ir an to I ; because tato of the ml IIaleJ ; aiul ul- it nowlicM'C i'('(L and it 'rpetratiiig tions were en the in- formed. lOUS. 859. trtliatthcin- is, aud of tbo t Superior One ryround of dofencc set ui> by tlie priaoner was infirmity, and for "he purpose of showing that it was u inahidy iiercditary in lii.s family, he offered to prove l»y ii witness that an uncle nnd brotlicr were both insane. Tlie State objected, and the evidence was rejected. The pris- oner's counsel I'xcepted. Tlie niotlicr of the prisoner was introdm-cd to prove insanity, and sIk! testilii'd that three wetUs bef(;re the hi>iiiicide, she; was sent for b\ the jtristtner's wife and went to aid in taUinj; care of him. She said she found him laborinjjf under dcruiitrcMnent of the mind ; that she remained with him for two weeks, and during that time he often ondeavoied to throw himself into tlie lire; that he sevi-ral times tried to strip himself naked; that he tried to shout himself; tli.it he wimld run as though some one was pursuinjjj him, and exclaimed tiiat some one was pursuing him. She slated that he was always weak of mind. She further stated that while she was tlieit', he oceasionnlly went into the neighborhood and staid all night ; that she left him eight days before the homicide, and he then appeared composed, and had been so a day oi' two. Slie also tes- tilied, that these (its recurred at perioils for the last two years, and she did not trust him to manage her l)usiiu'ss, thoULrh he and his family lived on her land, where she Avorked slaves. A witness testided that her character was good. Several witnesses were calleil by the State, who testified that they li.ad known the prisoner for eleven, twelve, and thirteen years ; some for a shorter time, and they concurred in the statement that he was addicted to intoxication, but they all believed him to be of .sound mind. The court, in charging the jmy, said in relation to the mother's testimony, that where near relatives were witnesses, as in the case of a mother de- posing for her son, the law i-egarded such testimony with a jealous eye, and called on jurors to weigh it with many grains of allowance. The prisoner's counsel again excepted. The jury retired and remained out several hours. They came to the coin t- room at a late hour of the night, and made known that they could not agree upon a verdict, and asked for further instructions. Thereupon, the court said to them, that if they differed in their understanding of the law as given them in charge, the court would re-charge them ; but if they differed about the facts of the case, the court could not aid them. One of the jurors responded, that their difference was about the question of insanity, and whether or not they should believe the prisoner's mother; whereupon the court re- peated the charge above set out on that part of the case, and told the jary they were to judge of her evidence for themselves. 822 KVIDEiNCE AND rUACTICK State ?". Christ iiiiis. The prisoner's counsel then requested the court to charge the jury, that in passing on tiie mother's testimony, they had a right to consider her xlenieanor on tlie stand, tlie consistency of her statements, and tlie fact that slie had proved a good cliaracter and might he believed. The court then said to the jury, that they were not ))ound to believe a wit- ness, whose character was proved to be good, or disbelieve or.e whose character was assailed, but that they Avere the constituted judges of how far a witness was to be believed. Defendant again excepted. To this statement, which is coi)ied almost literally from the record sentto this court, is appended the following explanatory note : " It is per- haps due to the court to say, that if the charge is not in response to the instructions prayed, it was because the counsel who prayed the instruc- tions, and who .poke in a low tone of voice, was not understood by the court." The prisoner was found guilty of murder, and upon judgment being pronounced ui)on him. appealed. The Attomeii- General, for the State. Miller and B. F. Moore, for the defendant. Pkauson, C. J. — No one can read the record in this case without recciv ing the Impression, that the instructions given by his Honor do not put the prisoner's case to the* jury in as favorable alight, as through his coun- sel he requested, and had a right to retpiest, of the court. After the jury returned and made known that the case turned upon the degree of credit to which the testimony of the mother of the prisoner was enti- tled, his counsel requested the court to instruct them that in passing on her testimony, they had the right to consider her demeanor on the stand, the consistency of her statements, and the fact that she had prmed a good chaarcter. This to say the least w;is not given, — in effect was re- fused, and we have the question: a proper instruction is prayed for and refused. There is error. The personal explanation which his Honor adds at the foot of the record, can have no bearing upon the le- gal rights of the prisoner. We deem it unnecessary to notice the other jtarts of the charge which is excepted tc, v.vcept to say the expression to '' weigh with many grains of allowance," is a figure vf speech, and seems to have been used in t';'* sense of receiving with caution, or as his Honor says, with " a jealous eye ;" and not in the sense that some abatement or deduction was nec- essarily to be made. The statement of the case is made up in a manner so unsatisfactory that we are unwilling to express an oiiinion upon the admissibility of proof that an uncle and a brother of the prisoner were insane, which IIKKKOITAHV INSAMTV 823 l''vi(l(>iicc Must He Xororioiis. 1 the jury, to consider ts, and the 3vcd. The ieve a wit- or.e wliose judges of [^ptcd. tlie record " It isper- :)nse to the le instruc- )od by the judgment out reeeiv :io not put ihiscoun- After the degree of w:is enti- passingon the stand, proved a 'ct was re- rayed for vhifh his Du the Ic- rge which my grains sed in th'^ a jealous was iiee- was offt'red to show an ht-rcditaiy malady, as a circum.stance tending to prove the allegation that the prisoner was iiinist'lf insune. It is a hi- m Mitable fact, admitted by everyone, that sucii maladies are hereditarj' ; and it would seem that proof of the fact that members of the family, so related as to have the same blood, are or have been afllicted with a like malady, is admissil)le as a circumstance, which aided by otlici- circum- stances and proofs, would go to show the insanity of the prisoner, al- though, of coursi', evidence of such hereditary tnint in the blood would only be one link in the chain, and would not, hence, establish the fact; but the ii)i:n(E and "iiactick Laros v, Coinrnonwcalth. EVIDENCE — MURDKK BY POISON — PRESENT INSANITY— JURY TRIAL NOT OF RIGHT. Lauos V. Common WEALTH. [S4 Pti. St. I'CO.] In the Siipmne Court of Pcnns'jlvania, 1877. Hon. l).\NiKr, A(JNK\v, Chief Justice " GKouiii: SiiAUswooi), Ul.YSSK.S MkRCIK, Isaac (i. Gordon, Edwaui) M. Paxson, Wauhkx J. Woodward, Jamks p. Stkrrett. (I (I u Judges. 1. Evidence — Insanity of Relatives. — Until there is some evidence of the prisoner's iii.>-anity, the courl ii not obliuuii ti> hear cvidoncu of the insanity of his relatives. S. Murder by Poisoningr — Evidence. — On a trial for murder hy poisoning, the defence being insaniiy, ilie court snl)niiltiMl to the jury the fact of tlie sanity or insanity of tlio prisoner on the day he ])ur''liased tlie |ioi.-on as well as ou the day it was aduiiuistered. Held, proper. 3. The Terrible Nature of the Crime is no evidence of insanity. 4. Present Insanity — Jury Trial not of Bigrht. — Wlicro the jury have found that the prisoner was not insane at the time of the act, ancl after verdict present insanity is al- leged, tlie trial of tliis pica by a jury is not of right, but rests in the discretion of the courl. Indictment of Alien C. Laros fur the murder of his father Martin Laros. Al the trial ])efore Meyers, P. J. , it appeared from the evidence that on the 31st of May, 1870, the family' of the deceased, consisting of him- self, his wife Mary, his children, Irvin, Alvin, Clara, Alice, the prisoner Allen, a grandchild. Flora, and a man named Moses Schng, who boarded with the family, all sat down to take siipi)er ; shortly tlieneafter one af- ter another of those at the table, in quick succession, were taken sud- denly and violently ill. The symptoms of all were alike, differing, however, in dctrree, the motlier, father, and Schtig being most violently affected, and the small child, Flora, and the prisoner the least. All the family were compelled to leave the tal)le. This sudden attack of sick- ness was followed almost immediately with vomiting and purging, grip- ing pains, cold and clammy skin, and excessive prostration. Frcnu the effect of this sickness, INIary Ann Laros, the wife of jNIartin Laros, died at seven o'clock on the following morning, IMartin Laros about one in niY TRIAL le prisoner's ■lives. the defence aiiityof the iniuistered. ind that the ^iiiiily isal- tiou of the I" Martiu !nce that ?of hira- I)nsoner boarded • one af- en sud- iffering, iolently All the of sick- om tlie )s, died one iu LAROS V. COMMONWEALTH. 825 The Facts of the Case. the afternoon, and Moses Scluig on the following day in the afternoon. Two of the family testified as to the peppery taste on their lips and tongnes and l.nrnlng sensation in the throat produced by drinking the eoffce at the supper, and two testified to a like sensation experienced from actual experiment with white arsenic in solution. It was in evidence tlnit all par- took of the coffee except, perhaps, the prisoner. A post mortan examina- tion discovered traces of arsenic in the stomach of the deceased. In the coffi'e pot, which had been used l)y the family, a white sediment was found, which, upon analysis, was discoveied to be arsenic, and from ap- pearances, about four ounces and a half Inid been deposited therein. The analysis was made by Dr. Mclntyre, a rei)utable physici.. n of Kaston, and Mr. Davidson, of Lafayette College, according to the most approved scientific tests, and both pronounced the sediment to be ar- senic. It was shown that the prisoner, a d.'iy or two before the poison- ing, bad purchased in a drug store in p:aston, of Dr. Voorlices, about four and a half ounces of arsenic for the purpose, as he alleged, of kill- ing rats, and that at the same time he had bought a bottle of Brown's Camphorated Dentrifice. The prisoner, subsequent to the poisoning, made declarations to witnesses about having made such a purchase of the dentrifice al)out the.time name.l, and the Iwttle was found in the house of the deceased. lie also made certain declarations about the conceal- ment of money belonging to the deceased and IMoses Scliug, and money was found at the place indicated. William Schugtestifiod,°that in reply to a question as to what he meant by doing a deed of that kind, alluding to the poisoning, the prisoner said : " Bill, I don't know why I done it^I I had no cause to do it, and I am sorry it is the way it is ; but it is too late." It appeared that the prisoner was at home an hour or two pre- vious to the supper, and could have had an opportunity to have depos- ited the poison iu the coffee pot. The defence was that the prisoner at the time he committed the act, was insane, and therefore not criminally responsible, and much testi- mony was given in regard to his being subject to epileptic fits, and the effects therefrom on the mind of the prisoner. It was also attempted to be shown that there was au hereditary tendency to insanity in the family of the prisoner. The assignments of error Avere thirty-thr(>e in number, but those only are noted here which are passed ui)on by this court. The seventh assignment was that the coiu't errred in permitting Dr. Green to testify as to the knowledge and qualifications of Dr. Mclntyre to make a chemical analysis. The eighth, in permitting Dr. Green to testify to the correctness of the tests made by Dr. IMcIntyre. 82(5 EVIDKNCK AM) I'KACTKK. Liiros r. Coimiioiiwi'iiltli. The nintli, in pennitliiio- Dr. Green, to testify wlictJH r tlic methods used by Mr. Davidson to iiscertain the existence of arsenic, were scientifi- cally correct. Tiie tenth, in permitting Dr. Voorhoes to testify that the prisoner, be- fore the coroner's inquest, wlicn under oath ar.d suspected of the mur- der, admitted to him or in his i)rcsence that he had purchased a bottle of " Brown's Dentrifice " from him in Eastou, similar to the one then produced. The eleventh in permitting the Commonwealth to prove b}' William Bit- ters, the deputy constable, certain admissions of tlie prisoner relating to the concealment of money belonging to his fatiier and Moses Schug. The assignments from the thirteenth to the nineteenth, inclusive, em- braced the following offers of evidence, which the court refused. To prove by the ])rother of the prisoner that the paternal grandfather of the pris- oner acted in a manner indicating unsoundness of mind ; to show while the prisoner was a meml)er of his father's family licnv his father edu- cated and brought up his family with reference to religious and moral instruction and conduct ; to sliow -wlu'tiier the treatment of the prisoner by the father and the rest of the family was kind or not; to prove that the brother of the prisoner committed suicide by hanging himself, with- out any apparent cause ; to prove that the uncle of the mother of the prisoner is insane, and has been for j'cars ; to prove that the brother of the prisoner's grandmother on his father's side committed suicide by hanging himself, without any known motive — all these offers as evi- dence for the jury upon the question of the insanity of the prisoner. The twentieth, that the court erred in refusing the defendant's third point, which was as follows : — 3. That the case of the Commonwealth, being one of circumstantial testimony, it must to a moral ciTtainty exclude every other hypothesis but the one of the death of the deceased b}' arsenious acid through the criminal agency of the defendant. The twenty-first was the answer to the fourth point, which was as fol- lows : — 4. If the jury find, beyond a reasonable doubt, that Martin Laros was poisoned by the defendant, and further find by the weight of the evidence that at the time the act was connnitted the prisoner was in- capable of judging whether or not the particular act which occasioned death was criminal, or if he knew it was criminal, but was imi)elU'd to the consequences, which he saw and iniderstood, but could not avoid, and was placed under a coercion from mental disease, which, ^\..iie the results of the act were clearly perceived, he was incai)able of resisting, POISOMN(i — INSANITY. 827 Instruct i. HIS Hcfusctl. otliods used re seientifi- risoner, be- ot the ruur- ;ed a bottle le one theu .Villiam Bit- ler relating )sos Scliiig. 'iusi\e, em- I. To prove )f the p fis- sile w while father edu- and moral lie prisoner prove that iself, with- Iher of the brother of suicide by -M's as evi- •risoner. ant's third umstantial liypothcsis irough the vas as fol- rtin Laros >ht of the er was iu- ccasioned ipclk'd to ot avoid, ^\.-iie the resistintr, the verdict must be, "Not guilty by reason of insanity." Answer: "So niiK'h of the point ending with the word ' criminal ' in the .sfventli line is allirmed. The leniaiiiing part of the point is not alliniied, as the evidence submitted to the jury is not a|)plical)le to the legal prin- ciple (if true) contained in the part of the point." The assignments from the twenty-second to the twenty-sixth, inclusive, were the refusals by the court of tlie following points of defendant: 5. That murder by poison is only pri'sumptive murder in tlie first de- gree, and if, upon the whole of the evidence, the jury are not satisfied beyond a reasonable doubt that the mind of the prisoner at the time of the act was so free from mental disease as to allow him to dclilx'rately premeditate the death of the deceased, and they are satisfied beyond a reasonal)le doubt of the poisoning of JMartin Laros by the defendant, the verdict must be guilty of murder in the second degree, if they should not find him in.o guilty by reason of insanity. 8. If, from the evidence in tiie case, the jnry should find, beyond a reasonal)le doubt, that Martin Laros died of poison administered by the defendant, but should have a reasonable doubt as to the sanity or in- sanity of the prisoner at the time of the commission of the alleged act of poisoning, it is their duty to convict of murder in the scconil degree. 9. The ability todistingnish between right and wrong in the particu- lar act is not the sole test of criminal responsibility, and if the fact of poisoning having been found beyond a reasonable doubt, the jury are satisfied by the preponderance of evidence in the case that the prisoner, although cognizant of the moral quality of the act at the time, was not able to resist the impulse to commit the act by reason of mental de- rangement, it is their duty to render a verdict of not guilty, by reason of insanity. 11. If the jury are satisfied by the weight of the evidence that at the time of the commission of the alleged act of poisoning the prisoner was laboring under mental derangement, whether partial or general, of a de- gree sufTlcient to h:i\e controlled his will, and to have taken from liim freedom of moral action, the verdict of the jury should be not guilty, by reason of insanity. 12. If, l)y reason of mental derangement existing at the time, thede- fen;lant had not power to control the disposition to commit the paiticii- lar act, he is not responsible therefor, and the verdict must be not guilty, by reason of insanity. The twenty-seventh assignment was the following portion of the general charge : — "There is no evidence in the case showing tiiat if even Allen C. 828 KVIliENCE A\l> PKACTICK. Luros V. Conimoiiwealth. i>^A Laros was at the time laboring uudor a genoial or partial insanity, he was ever subject to delusions* or to homiciihil mania, or that in conse- quence of such delusion or homicidal mania he committed the act with which he is charged. Tiie only and remaining question is, was Allen C. Laros, at the time of committing the act, laboring under such a de- fect of reason from disease of the mind, as not to know the nature or quality of the act he was doing or if he did know it that he did not know he was doing wrong." The twenty-eighth assignment was the portion of the general charge following in brackets: — " We have already stated to you that the defendant is piesumed to be sane. And the burden is on him to prove to your satisfaction that he was insane. [You cannot, however, infer insanity from the heinous and atrocious character of the crime, or to constitute it as an element in the proof of actual insanity-.]" The thirtieth was the portion of the general charge following in brackets : — " In either event, whether you find that the prisoner had or had not epilepsy, it will l»e your duty to examine all the testimony carefully, in all its details, to ascertain the condition of Allen C. Laros' mind from 1872 up to the 31st of IMay, 1870. You will ascertain how many at- tacks of convulsions he had, their force, character and duration, whether he had any stui)or or disorder of the mind immediately preceding or succeeding each convulsion, as well as their character and duration. You will ascertain what effect these convulsions had upon his mind, health, disjiosition, and temper. Y'ou will examine into all his acts and conversations as detailed by the witnesses, whether in the school-room, at home, in the liigliways, or wherever the witnesses placed him, up to theUlst of May last and immediately afterwards. [You will compare the testimony of witnesses as to sanity or insanity, carefully scrutiniz- ing the facts upon which they were found, and after having exhausted all the evidence bearing upon the question of sanity and insanity, it will be for you. to say whether or not Allen C. Laros hassatislicdyou by the weight of the evidence that on the evening of the 31st of ^lay, as well as on the day it is alleged that he purchased the white arsenic, he was insane and not criminally responsible for the commission of the crime charged against him.]" The jury rendered a verdict of murder in tiie first degree. When the prisoner was called for sentence, his counsel filed the following plea, in bar of sentence : — "Now, the 30th day of October, A. D. 187G, the defendant being i insanity, he lit in conse- he act with , was Allen " sneh a. de- e natnre or lie iliil not eral charge umed to be ion that he icinous and elemont in »llo\ving in »r had not irefnlly, in mind from V many at- n, whether seeding or duration. his mind, s acts and ool-room, im, up to 1 oorai)are scrutiniz- Jxhausted ty, it will ou by the i', as well \ lie was ho crime iVlicn the J plea, in nt being INSANITY AFTER CONVirTION, 829 rnicticc present in court, and being now asked here wiiat he ha.s to say for him- self why tlie court siiould not proceed to judgment and execution u|)ou the verdict of the jury for murder in the first degree, hi l)y his couusel for plea in bar of the sentence of the court, saith that since the com- mission of the offence for which the defendant was indicted, and since the verdict aforesaid, he has l)cconie, niid is now insane, and this he is ready to verify and prove. Whereupon he prays judgment," etc. The district attorney filed the following replication : — ''And now, October SOth, IHTH, the Commonwealth, by John C. Mer- rill, district attorney, for answer to the plea of the dofciidnnt why sentence should not be pronounced upon him, says that the said defend- ant has not become and is not now insane, and the said Commonwealth, therefore, prays that the judgment of the law be pronounced by the court upon the said defendant." To this replication the defendant's counsel demurred, on the grounds, — 1. That the district attorney toucjies no issue by his replication and no mode of trial. 2. That the repUcation should tender a trial by the country, being a traverse of matter of fact. 3. That it prays judgment of the court upon the question as a matter of law. 4. That the said replication is, in other respects, uncertain, infonnal, and insufficient. The court overruled this demurrer. The prisoner's counsel on the same day filed another plea in bar of sentence, which averred at the time of the charge of the court to the j'lry and at the delivery of the verdict the said defendant was laboring un- der temporary insanity, produced by epilepsy or some other nervous disease, and was totally inca])able of understanding and was actually unconscious of the proceedings attending the chaige of the court, ai.d the rendition of the verdict, and this he is ready to verify and prove ; wherefore, he prays judgment, etc. The district attorney moved that this plea be stricken off, for the rea- son that the matters therein alleged cannot now be heard, as they are without the jurisdiction of the court, which motion the court sus- tained. The prisoner was then called by the court, who proceeded to inter- rogate him for the purpose t)f testing the question of his insanity. They then sentenced the prisoner to be lianged. s;u) FAIOKNCIO AM) I'KArTICK. liiii'os V. CoiiiiiKiinvcultli. Tlie iUfeiul:iiit tlu'ii took lliis writ, the assijjimu'iita of error being tlujse heretofore notetl, and tlie following relative lu the proceedings aubseqiieiit to the A'erdict. 151. The courterred in overnilinij: the demurrer of the defendant to the replieation liy tlie Commonwealth to the prisoner's plea in bar of Ihewentenee tiled October ;H)tli, ISTO. ;{2. In proceeding to sentence the prisoner without directing a trial of the (luestion of his insanity, asj raised by his i)lea in bar of the scu- tence, befoi-c a jiu'v, 33. In interrogating the prisoner for the purpose of trying the ques- tion of insanity, as raisi'd by his plea in bar of sentence. W. S. Kirkpdtrick and ILnrij \V. Scott, for the plaintiff in error. ./. iJ. Mcrril. District Attorney, and Edward J. Fox, for the Com- monwealth. Chief Justice Acjnkw delivered the opinion of the court. On reading these assignnu-nts of error the first impression ia that Home of them must be sustained. But a careful review of the testimony, running in its current and along with the bills of exceptions as they were talcen, discloses that they are groundli'ss. The case was carefully tried, and the rulings fair and substantially correct. In such a case as this slight inaccuracies doing no substantial hurt to the prisoiuM', ought not to tui'u aside the course of justice. The desperate condition of offenders often leads to many shifts to escape. Insanity is a common resort, but thelmrden of its proof lies on the prisoner, and it is not every proposition he makes must be allowed, especially when it tends to mislead the jury. Some of the assignments were not proper and others pressed are not tenable. The objection to the question to Dr. Green as to his knowl- edge of Dr. Mclntire's learning in the science of chemistry and his qualiJication to make an analysis quantitative and qualitative is iiot sustained. Dr. Mclntire had testified to his own knowledge and 'com- petency and the tf'«*^^imony offered was only conlh-matoiy. The question related to Dr. Green's knowledge, as a matter of fact, deiived from observation. It was not a question of mere reputation, but of Dr. Green's own knowledge, acquired from full opportunity of observation. If I have seen a workman doing his work frequently, and know his skill myself, surely, if I am mj-self a judge of such work, I can testify to his skill. The eighth and ninth assignments have even less ground of support. Dr. Green being himself a skilful expert, it was competent for him to P error Itcing ^fondant to ■tt ill bar of 't'niij; a trial of tlio scu- g the ques- 1 error, tiie Com- ion is that irrent and :;lo8es that uliiigs fair accuracies aside the n leads to burden of he makes 'd are not liis knowl- y and his ive is iiot and c'oin- c question \ed from It of Dr. serration, know his an testify support, r him to \ i:\ii)i;.\(i; or insamtv .Must I'll' (liar aixl Nnhirioiis. H'M tostifv to the eorrccliioss ,,f t|,e H'sts used by Dr. .M.Intirc, :is stnlvd by him in his testimony. The t(Mitli assi^rinuriK, is uiisul)stant,i.'il. It, is needless to inquire into the (•..mpelency of the testimony of the prisoner, before the c.n.ner's in(iuest, when Dr. Voorhees himself testilied to the fiict iulmitted by the prisoner. The doctor sold Jiimtho bottle of .lentrilice when lies.. hi him the arsenic and i(h>ntilled the j.risoner as the purchaser. Nur is il necessary to iiupiiro into tiic conq.etency of i\w, confession nnide to U'iili:im Hitters, rehitive to the eniicenlment of the --.oiiey, referred lo in the eleventh assiginnent, when it is pn.ved that in conse.|uence <.f the information, search ";is miide at the place described by the prisoner, jind the money found there. And :.dmission not cmipctent as a conf<'ssion is admissible when ils linth is proved i)y the revelation of the fact by search. The assignments of error from the thirteenth to the ninteenth inclusive may all be disposed of in a breath. They were all offers collateral or secondary to the proof of insanity, and were not, admissible until direct evidence of the prisoner's insanity had been given. A court is not bound to hear evidence of the insanity of a man's relatives, or evidence of his proper instruction in morals and reliirjon, or of the kind trcMtmcnt of his relatives and friends, as grounds of a presumption of possible insnn- ity, imtil some evidence has been given that the prisoner himself has shown signs of his own insanity. Now when these offers were miide, no evidence of his own insanity had l)een given. That he had at Ion"- intervals before the week of the nuirder suffered spasms or fits of some kind affecting him bodily is all that iiad been proved, but no mental unsoundness has been shown. These offers were not renewed after evidence was given of an affection resembling epilepsy and a j.ossible epilei)tic insanity. Indeed the evidence of a possible ei)ilcptic insanity was so weak it would scarcely have been substantial error to reject the evidence a second time. It must not be forgotten that acccrding to the evidence, or even ac(!ording to common observation, epilcj) ■, is not commonly followed l)y insanity, until after along time from Hie first attack, and tiiat the proof of epilepsy furnishes no immedi;ite presump- tion of insanity. There was no error in the rejection of these offers when made. The twentieth assignment is not supported by the fact asserted in the point. The case was not one wholly of circumstantial evidence. There was the prisoner's admission of his act made to William Schug. In answer to Schug's question, what he meant by doing a deed of th^t kind, he said: "Bill, I don't know why I done it. I had no cause to 832 EVIDKNCK AM) PHArTK'K. Liirns V. ('ommoiiwealth. do it, juid I Hill suny it, is the w.v, i' is; lull, it is too laic." Tiio cii- (iiunstuiici's tiu'iiiselvi's were vt'r\ stioiiu;. Tlii' luii'ciiiiso of the poison, its (iiuuilily, tlie qimiitity foinid in tin- coffi-f-pot and the fiicts attcnd- iiiff llio poison were vitv direct, 'i'JK! Jis^ii^ni.ionts from tlio twenty-first to (ho wonty-sovonth Inrhisivr jii'o subject t(i the iuno inlirniity ; tlio iiisiiiricifiicy of the cvifU'iicc of insanity. The only possible (lui'stion was that of epileptic insanity, and this the court .•.ubinitte(l to the jury very fairly. It may be said of nil these points in view of the evideni-e, they "were abstract and unsub- stantial. 'J'iii' twcnty-eiiihth assiijnment {)resent3 an apparent dilFiculty. Stand- ing isolated from the charire, it seems to li' unsound. But taken in its proper connection an not justly ig question p stuic. and is insane, r, infer in- , or to con- e court did "id and un- iroof; but and as tlie :y. There ! of a fact, constitutes liarge con- :id witli its it the jury n order to 1 parts of ' the coin- e objected 'H b}' both ous to the ^ay of the f insanity submitted upon the The last three a-ssignmcnts of error raise a single question upon the power of the court to inquire by inspection and jxir tr.sles into tiie insan- ity of tlie prisoner since verdict. We have no i)recedeiitH in this State, known to us, how the inquiry shall be conducted when such a plea in bar of sentence is put in. It seems to us, however, that no right of trial by jury is involved in the question : A jury having found a verdict against the plea of insanity when set up as a defence to C(niviction, sub- sequent insanity cannot be set up in disjjioof of the conviction. The plea at this stage is only an appeal to the humanity of the court to post- pone the puuisliracnt until a recovery takes place, as a mer(!iful dispen- sation. Tiie rights of the prisoner as an offender on trial for an offence are not involved. He has had the benelit of a jury trial, and it is now the court only which must be satisfied on the score of humanity. If the right of trial by jury exist at all, it must exist at all times, no matter how often the plea is repeated alleging insanity occurring since the last ver- dict. Such a right is inconsistent with the due administration of jus- tice. There must be a sound discretion to be exercised by the court. If a case of real doubt arise a just judge will not fail to relieve his own conscience by submitting the fact to a jury. The sentence of the Court of 0\ cr and Terminer is affirmed, and the record is ordered to be remitted, for the purpose of carrying the sen- tence into execution according to law. EVIDENCE — MENTAL CONDITION OF RELATrV'ES. IIaqan V. State. [5 Baxt. 615.] In the Supreme Court of Tennessee, December Term, 187b. Hon, Jamks W. Deadkuick, Chief Justice. " Pktkr Tckxkv, " ROIJICHT McFAltLAXn, " William Y. Cooi-kh, " Thomas J. Fhek.man, Judges Evidencoof Mental Condition of Relatives.— On the question of the prisoncr'a in- sanity, it was error to refuse to permit au inquiry into the mental condition of any of his Immediate relatives. HM KVIUKNCK AM) I'UACTICK. Hainan V, State. AiMM-.Ai. froiii the ('riiniiKil Court of Dtividson Couuty. . Altuiiu'y-(!('iic'ral Ileislcell, for tlif State. Bale tt Widiiiiiis, for llie prisoner. Lka, SptM'ial Judj^'o, delivered tlie: opinion of the court. The phiiiitiff in error was indicted in the ("riniiiial Court of Davidson County for the nuinhr of K. 1\I. Kichardw, tlie seducer of his sister. He was convicted of vohuitury )nanslau?^;hter and sentenced to two years in the jx-nitentiary, from whicli judj^nient he has appealed to this court, and assigns several causes of error for reversal. Upon the trial there was an attempt to sliow, and there was some evi- dence to show, the insanity of tlut plaintiff in error at the time of the killing, and Cjipt. "\Vm. Stockcll, a witness for the i)laiutiff in error, after st.ttiiig tliat he was well accpiainted with the family of the prisoner, was askeil to state what he knew in regard to the sanity or insanity of a brother of the prisoner. To this question the Attorney-(Jeneral ob- jected, and the court sustained the objection. If medical science has determined any one question more clearly than another, it is that insan- ity is heri'ditary. Kay, in his work on the Medical Jurisprudence of In- sanity, • says, " that the hereditary character of insanity has long since passed into the category of established things." Blanford, in bis treat- ise on Insanity,- says *' the lirst tendency which demands your attention is hereditary transmission, for it is of all the most ])(Hent, and ought always to be kei)t in view 1)V tiiose aware of its existence, whether medical men, parents, or guardians. Here is a caust; of insanity which cannot be got rid of — apart and parcel of the individual's constitu- tion and being." If medical men, in detennini;:g the sanity or insanity of a party, in- quire minutely into the mei?tal iOU(. lion of his immediate family, why is it tliat a court, seeking after the truth of the sanity »,r insanity of a party, refuses to inquiic after the mental condition of his ancestry or immediate family. While the science of law is hoary with age, yet that its great object and aim, it has never refused to avail itself of all the means and aids which any modern science has demonstrated to be avail- able in the investigation of truth. The question of the prisoner's insanity being before the court, it was therefore error to refuse to i)ermit the inquiry into the mental condition of any of his immediate famil}'. [Omitting a ruling on another question.] Reversed. 1 Sect. 155. = p. 133. M'i:( lAI, CIlAKdK AS TO HLUDCN Ol I'lioor. 835 Wfl)l) (;. StiUc. ' Davidson his sister. 3(1 to two led to tliis some cvi- mo of tiie in error, } [)risoner, iauify of a Mieral ob- •icnce has Iiiit insiin- 'II CO of Ill- long since his treat- ' attention md ought , whether lity wliich constitu- party, in- nily, why inity of a I CCS try or , yet that of all the > I)e avail- rt, it was condition veraed. SI'ECIAJ. niARcJK — KURDKN DF PKOOK— DXT'KRTS — NKW TRIAL. Weuh r. Statk. [H T.'X. (App.; 4;)1.J In the Court of Appenh o/Tpxa.t, ISSO. Hon. John I'. Wiiirr, I'rfsidiiKj .ludijc. " V. M. \Vi\Ki,i;i:, , " Jamks r. lltui, ) -^'"'i/f*- 1. Insanity -Special Charjre as to Reasonable Doubt not Reciuired.- Where tho court in.siructh the jury on the g.;neral l^^u<• nf ruiU llial tlu- prii-oiicr is i-iititlod t,. Hip. bo-.rntofanyreas()nnl)lc di)ul.i,it is not error t.. refuse to tion ; but they cinnot piedicate an opinion on aiiythinu lesH than the entire evidence whether actually oi hypotlielically pre-eiued. *. New Trial -Surprise.- Thai iin export wJtne<9 by the .Icfcnce ha. testilled contrar)- to expectation is no reason for a new trial on the ground of surprise. Appeal from the District Court of Fort Bend. Hon. W. II. BicKiiAitT, presiding. The indictment charged llie api)ellant with the niui'dcr of Cliarlca R. Foster, in Galveston Comity on Septcmhcr 2, isTC). He wtis convicted of murder in the second degree, and sentenced to forty years' imprison- ment in the penitentiary, but the conviction was set aside on appeal.' On the case being remanded he wusiigain piil, on tiial. His defence was insanity, to support which .several witnesses testiiied. Verdict, guilty. Appeal. Arthur P. Bagby, for appellant. W. B. Dunham^ for the State. WUITK, 1'. J. — [Omitting a point oi practice.] Two questions are submitted, by bills of exception, with reference to the expert testimony introduced on the trial. Dr. Stone, a medical ex- pert, who was present and heard the testimony of the other witnesses, was inlroduced and examined by defendtiiit upon the subject of insan- ity, the principal defence relied on. On his cross-examination he was asked by the prosecution : "From the testimony of Frank Pool, was the 1 5 Tex. (App.) 59G i 83(5 EVIDENCE AND PRACTICE. Webl) r. State. condition of defendant's mind sucl. that lie could not distinguish right from wrong? " to wliich he answered, over objection of defendant, " I do not think it was." Defendant asked that the answer be withdrawn from the consideration of the jury, which was also refused, tlie court stating that "the defendant might ask Ihe doctor's opinion, based upon the entire case if ho saw fit." Mr. Wharton in his work on Criminal Evidence states the rule thus: " When insanity is set up by a defendant and denied by the prosecution, an expert cannot Le asked his opinion as to the evidence in the case as rendered, not only because this puts the expert in the place of the jury, in determining as to the credibilit}' of the facts in evidence, but because the assistance thus afforded is in most trials illusory, experts being usuall}^ in conflict, and the duty devolving on the court and jury of supervising the reasoning of experts being one which can rarely be es- caped. It has been said, however, that when the facts are undisputed, the opinion of an export can be asked as to the conc'usions to be drawn from them, and the editor's note to Bovard r. State, IMoriiwB* Or. Cas. 6;i0, with authorities. EviDEACi; or i:.\1'i:i;ts. 839 Uurcloii of Proof — Spi'cial Instructi oil evidonoo." >ort to give I the c(tse, tlictically. ' this: Pre- I shall have the case, f the truth juij), the tilled toby f the truth .cts as fol- l heard all asked the ■ the testi- ised at the .nswering. that could Ilk' or de- have con- tiiue the I'G or less e him cu- d not be- ole testi- • 10 witness it by ask- the wit- coueeive. jrnied his ti answer e. lefendant one ; be- ined was ". Stone rd r. state, sritics. amongst them, t.; ascertain their views on (he question (,f sanity from this evidence, and whether tlie.e was occasion to introduce otiier evi- dence which they had on the subject, and that Dr. Stone, with tiie otli- ers, expressing himself satisfied from the evidence adduced that defendant was insane, tkey did not introduce such other testimony. This ground of the motion is supporle.l by affidavits. The court did not err in overruling this ground of the motion. It is not shown that any ai)plication was made to the court for permission to intnxluce these witnesses after Dr. Stone had t(>stilied, which could and would have been permitted by the court in case it had been made to appear that it was necessary to the due administration of justice, i Nor is 1 he motion .stivngthened by the allegation that upon a new trial the defendant will be able to procure other eminent scientific medical experts whose opin- ion upon the evidence will be different from that of Dc. Stone. Being surprised at the testimony of his own witness, defendant should have in"^ voked the aid of the statute, which provides that " a continuance may be granted on the application of the State or defendant after the trial has commenced, where it is made to appear to the satisfaction of the court that, by some unexpected occurrence since the trial commenced, which no reasonable diligence could have anticipated, the appellant is so taken by surprise that a fair trial cannot be had ; or the trial may be postponed to a subsequent day of the term." -^ - Surprise is not one of the grounds for a new trial in felony cases, all of which grounds are prescril)ed by the statute." ^ The most formidable question in the case under consideration grows out of the refusal of the court to give in charge to the jurv a special in- struction requested as follows: - That if the jury entertain a reason- able doubt of tlu! sanity of the at^aised at the time he shot Charles Foster, they should acciuit him. " Upon the issues of sanity and insan. ity the general charge given followed almost literally the law enunciated in Webb V. Statc,^ and which was but a reproduction of the doctrine upon that subject, as declared in 2 Greenleaf on Evidence.-^ After making an aiipropriate application of these rules of law to the facts, the jury were further charged : " It is your province to determine, from all the evidence in the case, whether the defendant was sane or insane. Every defendant in a criminal case is presumed to be innocent until hia guilt is established by legal evidence, beyond any reasonable doubt, 1 Code Cr. Proc, Cart. 661. » Id., art. fi68. 3 /d., art. 777; Walker t>. State, 7 Tex. (App.) 262; Iligginbotham v. State, 3 Tex. (App.) U". * 5 Tex. (App.) 596. '' Sects. 372, 373. 840 EVIDENCE AM) PUACTICE. VVeljb 0. State. and in a case of a reasonable doubt as to his guilt he is entitled to be acquitted. Therefore, if you have any reaso»ial)le doubt of the guilt of the defendant, under the evidence in the case and the law as herein given you, you will acquit h'nn." Here it will be seen that the court had ciiargcd the reasonable doubt fully with regard to the whole Cvase made by the evidence. Was the defendant entitled to, and was it in- cumbent upon the court to further charge, in addition, the reasonable doubt, speciall}' with regard to the issue of his sanity? In this State this question has never heretofore, so far as we are aware, been directlv adjudicated. ]f we look to the English decisions, or the decisions of Uie other State courts, we find much contrariety of opinion upon the subject; some courts holding that the burden of proving his insanity rests upon the defendant who intei'poses it, and that he is in dut}' bound to establish it as an independent fact, beyond all rea- sonable doubt ; others hold that the fact must be established by defend- ant, but need onl}'^ be shown by a preponderance of evidence as in civil cases, sullicient to overcome tlie presuin[)tion of sanity, and not neces- saiilytothe exclusion of the reasonable doubt ; whilst others again — and these may be classed as of the modern, or progressive school — insist that, inasmuch as the burden of proof never shifts from the State in any criminal case, but rests upon her to establish every element necessary to constitute the crime alleged, and inasmuch as the question of a defendant's sanity enters into and tends to controvert the most im- portant constituent of crime, to wit, the criminal intent, — that, there- fore the State must afflrmatiA'ely establish the fact of sanity beyond a reasonable doubt. Those curious to investigate these different theories and grounds ui)on which they rest, will find the authorities collated and discussed in Bovardv. State, and the editor's notes to the case,^ and in 2 Bishop's Criminal Procedure,' and Wharton's Criminal Evidence.^ Our own State, in the plentitude of her mercy and humanity, follow- ing the generous dictates of all human and divine law, declares that "no act done in a state of insanity can be punished as an offence," "* and in the definition of murder provides that i^ nust be the act of one " of sound memory and discretion." These .vo principles are, how- ever, subordinate to another, which is a postula, 3 in estimating all hu- man action from a legal standpoint, and that is that every man is presumed to be sane until the contrary is made to appear. This pre- sumption of sanity is one of the maxims of the law. To such an extent 1 1 Morris'' Or. Cas. 818. « (3d. eti.) sects. C6!) to 673, inclusive. 3 (8th ed.) sect. 335, etseq. * Penal Code, art. 39. Aed to be le guilt of as herein the court 'hole case was it in- easonable IS we are lecisions, ariety of irden of and that d all rea- r defend- s in civil ot neces- again — school — he State element question Host im- t, there- ejond a theories ited and se,i and idence.3 follow- res that ence," ^ i of one e, how- all hu- man is lis pre- I extent rKESUMPTION OF SAXITY 841 Burden of Proof. is it indulged, even in cases of nuirdor, that "the indictment makes no mention, that the a(;cused is of sound mind, even when drawn on a statute which has the words ' of sound memory and discretion.' For, though sanity is essLMitial to crime, it is sufliciently charged in the al- legation of the criminal act, being the j)rima facie condition of man- kind." J And so also " the authorities agree and properly, that in some way the presumption of sanity attends the proven acts of the prisoner, operating with sufficient force to create against him 'a prima facie case." '-^ Such a case is more tiian a. prima facie; it is a positive case. To us it appears needless to dispute as to how or in what manner this presimiption is to be rebutted and overcome. It is self-evident that if no issue at all of sanity is raised by the evidence introduced by tiie State, nor by that produced in behalf of the defendant, then the posi- tive case {prima facie, as it is culled by Mr. Bislioi)), established by the State, should and will lightfully carry conviction with it by virtue of the presumption. But if beyond this presumption of sanity — if be- yond the positive, not alone prima farie, case attending the proven acts constituting the crime — it still devolves upon the State to show affirm- atively the existence of sanity beyond a reasonable doubt, then it seems to us that it necessarily follows that this proof must be made in all cases, irrespective of whether the issue grows out of the evidence or not, and consequently that the virtue of the presumption becomes a de- lusion, and a2iri)nafacie case without this proof an utter impossibility. The folly of such an argument is its own most appropriate answer. Suppose, however, that the sanity of the defendant does become a question — whether from the evidence of the State or that adduced by the defendant — should the State show the sanity or the defendant the insanity beyond a reasonable doubt? Admit, for the sake of the ar^ru- ment, that the duty devolves upon the State, how is the judge to charge fully the law applicable to the subject? In terse, plain and comprehen- sive terms he could not, perhai)s, better express it tlian in the following language, viz. : " The law presumes every man to be sane until his sanity is established beyond a reasonable doubt. " This, it may be said, is an absurdity. Grant it, and yet the absurdity will rest where it prop- erly belongs, with those maintaining the proposition that the State shall prove sanity beyond a reasonable doubt. We do not deem it necessary or incumbent upon us to unravel or at- tempt to answer the misty mazes and the metaphysical disquisitions in- dulged in by the opposing theorists about sanity being essential to 2 Bish. Cr. Pr. (3(1 ed.), sect. (WO. Id., sect. 072. 842 EVIDEXGE AM) PRACTICE. Webb V. Stiito. criminal intent, and criminal intent being essential to punishable crime, nor their equally abstruse and obscure views as to which side has the ])urden of proof when the sanity of the defendant, from whatever cause, ac(iiiires a staUn' in tiic case. The attempt would be as useless as profitless in our view of the question. We are free to admit that the defendant is not bound to plead his insanity specially, nor that he may not show it under " a plea of not guilty ; " still this does not settle it that the burden of proof is either on the vState or tiie defendant. Until the Legislature definitely declares a rule, the question will still, periiaps, remain in doubt as to where the burden of proof rests. We think it is uaiii't' , v that we should detei'mine it. Oftentimes it occurs in law, ..s '■(.'■' iry human transactions, that between opposing theoricg and opiAiioiis iiiere is a middle ground, which, once attained, will lead to safe and satisfactory results. " In medio tutmimus ibis." And so, in our (>i)ii:i' in ■ ,-rd to this question of sanity in criminal cases. Mr. Bishop states this middle ground. He says: " 'I'he doctrine of principle sustained by a large part of our courts, and rapidly becoming general, is that, as the pleadings inform us, insanity is not an issue, by itself, to be passed on separately from the other issues ; but, like any other matter in rebuttal, it is involved in the plea of not guilty, upon which the burden of proof is on the prosecuting power, the jury to con- vict or not, according as, on the whole showing, they are satisfied or not, beyond a reasonable doubt, of tiie defendant's guilt." ^ And Mr- Wharton says: "At the same time, if the defence goes to negative malice, and malice is an essential [)art of the case of the prosecution, then, if on the whole evidence, there be a reasonable doubt as to mal- ice, there should be an acquittal." ~ It is a noticeable fact that those who insist that the doctrine of rea- sonable doubt applies to the (juestion of sanity, because insanity is an attack u[)on the integrity of the criminal intent which the State is always bound to show aflirmatively are also forced into the position that it is not a distinct substantive issue upon which the defendant has the bur- den of proof. In other words, they claim that it is a i)art and parcel of the whole case made by the State ; one which she is bound to establish bej'^ond a reasonable doubt, and one which, when she has established it on the whole case be3-ond a reasonable doubt, is not sufficient, because she has not established it beyond a rejisonable doubt when applied to the question of sanity separately and alone. The inconsistency is in giving to a part a prominence sufficient to defeat the whole of which it I 1 2Bi3h. Cr. Pr.,8ect. «73 « Whart. Cr. Ev., sect. 335. BURDKX OF PKOOF. 84.1 Kiilo ill Tl'x.is. ible crime, ide has tlio 1 whatever as useless tit that tlic lat he may -t settle it lit. Until I, perhaps, Te think it occurs ill g theories will lead And so, lal cases. octrine of becoming issue, by like any It}-, upon ■y to con- tisfied or And ]\rr- negative sccution, i to mal- of rea- ty is an s always hat it is the bur- )arcel of istablish lished it because plied to 3y is in vhich it is but a part, and in insisting that a part siiall control the whole instead of being only considered with and iiu'liided in it. It will not do to say that the reasonable doubt, iiideiiendi-nt of the whole case, applies and must be given to each and every eU'i.ient going to inakf up {ha corpus of the crime, and failing to do so that the charge would be insullicient ; because such a rule wouUlload to iiniK'ccssaiy and perhaps interminable confusion, and in a case of circumstantiul evidence, for instance, it would be necessary to charge it with reference to each isolated fact in a chain of facts essential to the existence of the main fact. No one, we su[)- pose, will contend that this is requisite. Speaking of the defence of au alibi in the case of Walker y. State, Chief Justice Robkuts says: " It is not a defence at all in any other sense than as rebutting evidence tending to disprove the fact alleged in the indictment, that Walker killed Butler, the burden of proving which allegation rests on tiie Stale throughout the whole trial." And again: -The rule of law is that such evidence of an ulihi should only be of such, weight as to produce upon the minds of the jury a reasoiuilile doubt of the fact allirmed liv the State, that Walker was the man who shot Butler." ^ In the case at bar, the evidence of insanity was no defence, save as it tended to rebut or destroy the criminal intent with which Webb shot and killed Foster, audit should only be given such weight as would produce upon the minds of the jury a reasonable doubt, not of Webb's sanity, but of the fact aflirmed by the State, which was that Welib killed Foster with criminal intent, and under circumstances constituting the crime mur- der. Ill a general view of the case, we think that, no matter upon whom the burden rests or how the proof is adduced, the evidence of insanity, to warrant an acquittal, should be sulliciently clear to convince the minds and consciences of the jury; because the law requires that, '' when the defendant is acquitted upon the ground of insanity, the jury shall so state in their verdict." - Our conclusion of the whole matter is that the charge of the court was a sulflcient exposition of the law of insanity, and that, having fully charged the law of reasonable doubt, as to the whole case, the court did not err in refusing the special requested instruction. We have been unable to see any error in the proceedings had on the trial which requires a reversal of the case, and the judgment is therefore affirmed. Affirmed. t 42 Tex. 360. « Code Cr. Pr. Art. 722. i<44 KVIDKNCK AND I'lIACTICE. Webb V. State. IlruT, J., dissents upon the proposition that no error was committed ill refusing the special instruction, and refers to his view in the case of Kin'j V. State, decided at the jircsent term, post.^ I At llic same term with JFebb v. State, tlio CiiM! (if King V. Slate, '.i 'ri'X. (Al'|i. TilS (1880), was coiisiilcrt'il. lu King v. State I lit; prisoner was iiidicU'U for fchooting il. W. Harrington, on >!ari'h22, Is^'^O. The defence was insanity, lint he wasi'onvicteil of nmrder in tlic lirst de(;ree and sentenced to death, -'riie cliarge of the court presented tlielaw of insanity as fdllows: " Ye8 to have e diseased, nity wliere I a(!count- of jjunish- hat degree he alleged he inipor- consider- a question from the o defend - and at the chine had ant, or if al disease thin him, 3 was im- irpose, he w. It, on nd,capa- ct he was •ong, and act, and d refrain ould not member, irst part CHARGE MUST BE SPECIALLY DIKKCTEI) TO DEFENCE MADE— DE- LIUIL'M TREMENS —TEST. Eravin V. State. [10 Tex. (A|)|).) 7(10]. In the Court of Appeals af Texas, ISSl. lion. John P. AViim;, Chief Justice. " C. M. WiNKi.r.K ) r J " .Jamks M. lliinj 1. Delirium Tremens is a species of in.sanity. 2. Delirium Tremens is usually the result of a disuse of intoxicants by an habitual drunl:- ard, bill it may ensue from casual drunkenness. 3. Court Should Chargre Specially as to this Defence. — The defence being delir ium tremens, and there being evidence lending lo establish it, the court should cliarj;e specially the principles of law applicable to this defence. 4. Particular Bi^ht and Wrong Test. — A charge which makes the test of insanity depend upon whelliei- the prisoner knew right from wrong generally instead of wiili respect to the act for which he is indicted, is erroneous. T). SlightEvidence. — However slightly the evidence may tend to establish a defence, the court should charge the law applicable to that defence. Ari'EAi. from the District Court of Tarrant .County. Hon. A. J. IIooD. Tried bciore of this charge, ills niailean e.-sential ingre- dient of murder that the person, to be guilty of that crime, must be one of ' sound mind and discretion ;' the meaning of which is, that he must have capacity and reason suf- ficient to enable him to distinguish between right and wrong as to the particular act he is then doing. Although a man may be labor- ing under partial insanity, if he still under- stands the nature and character of his act and its consequences ; if he has a knowledge that it is wrong and crimin.vl, and mind suf- ficient to apply that knowledge to his own case, and to know that if he docs the act he wni do wrong and receive punishment, such partial insanity is not sufHcient to exempt him from responsibility for his criminal acts. But if the mind was in a diseased ;tnd unsound state to such a high degree thai for the time being it overwhelmed the reason, conscience and judgment, and the defend- ant, in committing the homicide, acted from an irresistible and uncontrollabh^ impulse, then it would be the act of the body, without the concurrenceof the miiKl. In such a case there would be wanting the necessary in- gredient of every crime — the intent and purpose to commit it. As before stated, every person charged with crime is pre- sumed to be sane, and the burden of proof, to establish the defence of insanity, de- volveson the defendant. It is not necessary that the insanity of the defendant should be established beyond a reasonable doubt ; it is sutllcient if it be established to your sat- isfaction, by the weight or prepondei-ance of evidence, — such and so much proof as reasonably satisfies you of the existence of insanity at the time. To ascertain the con dition of the defendant's mind at the time of the killing, you should look to the condilion of his mind before that time — his conduct, acts and all the surroundings — ascertain, if (los.sible, whether his mental condilion was such as to enable liiiii lo know he was doing a wrongful ,'ind unlawful act. Look to his acts, conduct, and movements on the day, before, and on the occasion of thekdling; his conduct, acts and movements after the killing, and all other facts in the case, to 840 EVn)KN( K AM) ritACTK i;. Envin V. State. The iii(Hc'tmoiit cliarirod tlic appellant with an assault with intent to kill and niiii'iU'r W. T. Whitlow, in Tarrant County, 'IVxas, on the llrsi (lay of Noveiuher, 1H8(). His trial resnlted in his conviction of the rrncli ii correci niiiclusioii ns lo wlicllior llio (li'fciiil.'int wa.- (if (•(iiiiiil iiiiiiil 'c, hut ri.'fiised to give tlit'ir assent lo ilic vluw-^ of Ilt'KT, .1. on tlio quiistion of insanity, adlicr- ing lo llioir cipiniipn as I'xpi'LSScd in tribhw State. Jlijiir, J. '>, opinion was as follows: — Disaentinpr Opinion of Hurt, J., in King v. State. — lluur, .J. — Tlic ap pi'llant WHS I'onvicU'il of unirdur in tlio lli'st ilugrco, Willi llie dealli pi.'iialty alllxfil as Uic iiunisliinent. Tlie rucofd prosLMits llivcf (lueslioiis for our solution : — 1. Wliuii tlu! plea of insanity is interpostMl, is the Ijiirdeii of pi f on lliu State |(j show sanity, or is it on tliu defendant to prove in- sanity? 2. If the jury have a roneonable doubt of the sanity of the defendant, sin uld they ac- liuit or convict, sanity beintf the only (juus- tion in the case? o. Can the proof be so [ilenary on one side JIB to justify the court below in the rejection of legiliiiiale and proper testimony in behalf of the other side? First proposition: Wlienthe pleaofinsan- ity is interposed, is the burden of proof on the State lo show sanity, or is it on the de- fendant to jirove insanity? Ilrush from this (jueslion the dust from ancient days, separ- ate it from its old eoiiipanions, and its scilu- tion is perfectly simple. Hefore entering upon an analysis of this subject, pennil us to allude to some very strange and inconsist- ent expressions used by the learned judges in treating of lliia (;ueslioii. The following are of the luiinber alluded to: " As insaniti/ crcusen the coinmissioii o/criiite, on the ground that the actor is not a responsible being," etc. "Theo««.s of proving the defence of insanity, or, in the case of lunacy, of show- ing that the offence was comiuitled when the ])risoner was in n slate of Itinacy, lies upon the prisoner." " It is rather in the nature of a plea to the jurisdiction, or a mo- tion to change the venue. The defendant, through his counsel and friends, comes in and says that he is not amenable to jieiial jurisdiction." A very respectable volume could be made of such remarks, but those cited « ill siillice for our purpose!. Let Us lake a steady look for n moment ill these propositions. For exanipb', take Ibi' first. What HHiie mind can comprehend the possibility of a vrime being conimiUed by an insane person? If the prisoner in insane, there is no crime. If there lie crime, tlicii' is no in., llUl Itldbf I IIKIIllOnt Ml IC, lMk(! III!' l)l'l'llL'II(l till' Hilled hy iiii r irt insMiic, crime, llui f 'xi use criiiiu, c ix 1IO rriiw lis apply til 'I'lcii ill till, lion." This (/Uilt of tile y iir iii 1 the whole proposi- e (if a inii ere is the ;y existing to (!liangc onfi'ss our oii^lit tlie venue was y in which other one r lenioval iiniiurlial e profier nient wfis -hall it be IS for the county to Hiiieslion- )n.s beiiijr nit of last his would since the offoiici! rlKifo;t'(l iif^aiiist him. tiiid two yours in the penitentiary was tiie punisliiuent a\vai'(k'(l him. The siibstiiiiee of tin; evidenee for the prosocntion was thtit, on the morninfj; of November 1st, 18n(), at al)out half-piist seven o'clock. primal iilca upon which il is based onrriea with il llie fuitlier ideii of Ituman e.ciiintioH for liiiiniiii urong. These .-traiigo and incoiu'-'cnt expros- ^ions, which we Had in the wiitiipjs of eini- ncnt text nulliors, are tho lei,'itiinalu ullspriiifj of fundamental error which under- lies their treatineiil of this entire Bubji'ct, and we merely iilliide to them hero to in- tensify and ct tlif burden of upart upon the State, and, as to the rent, to reciulro the defendant to lake the burden of proving a negative, it follows that llie e-vistem-o of each element is an njfirmative proposition, the proof of wliH'h re>ts with the State. The idea that the buiilcn of proof shifts is in direct cmiilict with the philosophy of criminal jurisprndenci', and at war with fundamental princi|il(!s; for wo hold that, with regard to necessary ingredients, it never shifts. If two or more elements con- stitute an otfcncc, which of these elements must be proven by the State, and which must bo proven not to exist by the defend- ant? If e/cHii ,!.'«, do they not all stand upon the same plane, or are there so which prove themselves? If there aro, 'onot elements. An', we to re(|Uire the f' it to prove the non-e.\istence of that element — sanity— upon which intent and malice de- pend, and yet hold the state to prove intent a,nA malice? To us it is impossible to har- monize, logically, these positions. We are now led to meet the most plausible, ditlicult, and potent position which can be as- sumed upon the other side. And wo hero concede that it is supported by t'he weight of authority; but we do not think it is founded in principle, and if not founded in principle, to follow would be dangerous. It is this' The fact of killing being admitted, and that beyond doubt the prisoner did the killing, an3 spnity being the normal condition of all persons, the law i)resumes the prisoner sane until he shows to the contrary; and there- fore the burden of proving insanity rests with the prisoner. It will be seen at once that the struggle is with this presumption of sanity. Let us move quietly but closely up to this gentleman and try to see who he is. The name of this witness is presumption, •lie is a remarkable gentleman. He was contempo- rary with the first- born principles of en- lightened jurisprudence. For t/uth and integrity ho has never been excelled by any witness. His means of knowledge are un- suriiassed, having for f, foundation the laws of nature, and the truth of his evidence is saloon, in lied by the oYf refused L'ontinuing IK thing enln of an ot- if n part u|i()ii o rei|uiro the of proving 11 cxistciico of ! proposition, li tlio btato. )roof sliifts is iliilosophy of lit war Willi hvo hold that, i^jredicnts, it tlemcntx con- leso elomonls c, anil wliicli )y the defend- ill stand upon a so which e, 'c not 3 (' It to lat element — id malice de- irovo intent ible to har- ist plausible, icli can be as- And wo here t'hc weiRlit of t is founded n principle. It is this- ted, and that tlio killing, ndition of all risonersane and there- nsanify rests seen at once csumptiun of ly up to this he is. The Hon. -He is a contompo- iples of en- t/uth and ellcd by any dge are un- ,ioii the laws evidence is muuEN or I'KooK. 845* DlMMuntiiijL; Opinion of Hurt, J, the conversation, Wliltlow told hint Uiiit if lie did not (jiiit drinkino; lie, Whitlow, Would nporl him, find his dismissal from the nij^ht-walcli force, on which hi< was employed, wotihl foMow. About this time ('apt. Paddock came up, and cuteied into a convcrbation with Whitlow. coiToborated by the cxiicricnoo ol man throuuli all ages. The etlei't of lii fvidencu Is tliu pi'iidnction of not only a incie /irt'tia facie case, but full and conipleU' (•oiivicllon « iu'n not op])Ohed. I'pon this evidence alone, when not contraillcted, sii 'being the only issue, man has been n .do to I'Xpi- atc the violated law with his life. Wlien he speaks to the sanity of the prisoner, lii> evi- dence meets witli an approving resjionse in the mind of every intelligent and honest juror, for their experience corroborates his testimony. Kut be is noi infallible. Jle never testifles to tlie sanity of i\\\y particular individual. His is never yjo-fiiire, but always 7jrcs((;Hy)ni to. Having emlcavored to become soincwhat iico conceded, under our decisions, that in these very cases tlie burden of proof does not shift, but remains with the State throughout. Now, upon what principle of logic, or justice can we give to this prc^imption so niiich pov.cr in a case involving the ((ucstion of saniti/mt lo shift the burden to the prisoner, and in the other cases hold that it does not shift t \\\ Akc V. State, C Tex. (.\pp,, mis, Judge White makes an extract from the opinion ot Judge liigelow in tiio case of Vomvionwealth v. McKee, 1 (Jray, (il. From it wo give the following: " The general rule as to the bur- den of proof in criminal cases is sullieiently familiar. It reijuires the Government to prove, beyond a reasonable doubt, the of- fence charged in the indiiMinent, and if the jiroof fails to establish any of the essential ingredients necessary to constitute the crime, the defendant is entitled to an ac(juittal. This results not only from thi; well-estab- lished principle that the presunipti of evidence n its charac- heory of his inie; and, If ml here we source of h it'll 1.1 that r of viewing the case, not as a whole, but in Its different stages, and apply the law in their charges to those stages. This splitting up of a case into several parts, and, by the charge, shifting the burden first upon the one and then upon the other iiarty, is against law and i)rinciple. In every criminal iirosecution theguiltof the prisoner is the objective point, and every btep, every move, every clement of the of- fence, and any fact which is necessary to arrive at that point is rtj^r?H«Vc have found, in this supposed case of murder, that if the defendant failed to in- troduce evidence he would likely forfeit his life ; but u-e hare also found that the burden in that case did not shift. Now, suppose the State proves that the prisoner deliberately, and with a deadly weapon, kills the de- ceased, and here the evidence closes. Must the State go further, and prove sanity, by introducing a witness to that point? 15y no means, for sanity is not in the case. Rut suppose the prisoner piles fa<'t ujjon fact tending to show insanity, must the court charge that the burden in this case is on the prisoner? Is this 8 stranger case than the one above put? We think not. Then, can any sound, logical reason be given for shifting the bur- den in the last and not in tlie first case? Most unquestionably not. We have found that proof of an alibi is a direct attack upon the theory of the defendant's presence at the place of the crime. Proof of insanity is, therefore, an attack upon sanity, and if iliis is gone, there is no intent, no malice; and if these are wanting, there is no murder, no crime. If there is a mistake in these conclu- sions, we are not capable of reasoning upon any subject, for these are our settled and honest convictions. We therefore conclude that, since sanity is an essential, inherent element of mwder, and since the State must prove all of the necessary ingredients of the offence charged, we cannot escape the conclusion that the State must prove sanity; and as we have found tliat the burden of proof does not i-hift in regard to necessary ingredients of the offence, and as sanity is such an ingre- dient, it also follows that the burden of proof 's upon the State to show sanity, and not upon the defendant to prove insanity — a, negative. This rule has no application to cases in which the question of sanity is not raised ; nor do the rules ai)plicable to alibi in all cases, good faith and mistake in theft, etc., have any application in cases in which the facts do not call for them. Now, let us see if we can put these prin- ciples into active oi)eration; for, unless practical, they are valueless. The jury is sworn, and the plea of " not guilty" en- tered by the prisoner. The charge is mur- der. The burden is on the State to prove guilt. The State proves the killing by the defendant with a deadly weapon ; the wound was mortal, the act deliberate, and not at- tended with any circumstances of mitiga- tion, extenuation or justification. But hero we are met with the objection that there is no i)roof of sanity. Not so; for the State has the evidence of that venerable and im- partial witness, the truth of whose state- ments is corroborated by the laws of nature and the experience of man. lie i> the lirst witness in every case, and at the very threshold proclaims tlie sanity of all per- sons, lie not only jiroclaims sanity, but when ';ertaiii facts are proved, he swears to the existence of malice. Not only so, but when an injury is inflicted, he testifies to the fact that the party inflicting the injury in- tended so to do. Take the above case with the testimony of this witneaa i)resunipti07i in connection with the other facts, and if the evidence closes there, the defendant would and should be convicted. I)ut, the State having closed, the defendant proves fact alter fact tending to show the want of san- ity. Shall wo try him by the presumption or by the facts on tUe question of sanity, or by both the presumption and the facts? If this witness is infallible; if he cannot err; if his evidence is conclusive on the question of sanity, then we should try him by the presumption, which would be no trial at all. But, as he knows nothing of this case, and since his evidence is not conclusive when opposed by other evidence, but very power- ful, and conveying evidence of a presump- tive character, we should try the defendant 852 EVIDENCE AND PRACTICE. Erwin v. State. payinj^ no attention to the marshal's order to halt. Two witnesses for the State testified that while the appellant appeared to be drinking some- what, he did not appear to be deprived of his reason, and in their opin- ion he knew what he was doing. by bot?i. The trial proceeds ; the defendant proves fact after facl, tending to show the want of sanity; but there is the evidence of that old, hoary-hcaded witness, who is without partiality or prejudice; who is not related to either of the parties, and who Is incorruptible, proclaiming the sanity of the defendant. The jury draw ui)on an experi- ence which corroborates the truth of his evidence; but, as ho knows nothing of the sanity of this particular prisoner, his evi- dence being of a presumptive character, and notconclusive, the struggle throughout tlio trial i-i between his evidence and that of the defendiint. The defcnilant closes, and the old wilnoss presumption appears to bo crushed ; but in comes the .State with the evidence of witness after witness swearing to facts tending to show sanity, thus cor- roborating this witness presumption ; and tl.us the jury try the case by the evidence of this witness presumption, in connection with alt the evidence on the question of san- ity, giving to each witness and all the evi- dence their due and proper weight, just as in other cases in wliich the question of san- ity is involved. It will bo seen, therefore, that the evidence of this witness presump- tion is to be taken in connection with all of the other evidence, he being treated as a witness in the case. lly a careful survey of the above positions it will be perceived that the burden of proof Is quite a dilforent thing from tlie means or instruments of proof. We liave not time here to elaborate this position. We have now said a'l we desire to say upon the bur- den of proof, concluding that it never shifts in vogard to the necessary ingredients of the offence. The court below charged the jury that the burden of proving instmily was upon the defendant. 'I'his, wo think, was error. 17 Mich. Ill; 10 N. Y. (iH; 2 Mete. 240; 1 Gray, 61; 7 Metc'iOO; 31 111. ;18.5; State r. Crawford, 14 Am. L. Keg. (N. S.) 23; 43 N. H. 224; 19 Ind. 170; United States v. McGlue, 7 Law Hep. (N-. rs.) 439. The nexti)ropo8ition is: "Must the State prove sanity beyond a reasonable doubt?" [f sanity is a necessary ingreilient of crime, aiid if it be necessary to prove the ingredi- ents of crime beyond a reasonable doubt, the conclusion that it -,anity) must be proved beyond a reasonable doubt cannot be re- sisted. Hence the settlement of tlie first proposition —viz., that sanity is an inherent, intrinsic, necessary element of crime —con- clusively settles the last i)r<(position, if the doubt can be applied to the necessary ingredi- ents. To illustrate: The defence is the want of sanity, or alibi, or good faith, or mistake, or any other matter which will defeat guilt; now, is it projier to specifically apply the doubt to either of these grounds? Take, for example, tho fraudulent intent in theft, and assume that the facts are of such a character as to make thi.s the only question. Upon this the defendant makes his contest. Would it be wrong for the court to apply the doubt directly to this part? We think not. Then if the doubt can properly and justly be spe- cifically applied to one ingredient of an of- fence, why not to others, if they are made prominent by the situation of the case. II the court, by its charge, calls special atten- tion to the defence or defences urged by de- fendant, and then applies the doubt to tlie whole case, we are not to be understood as holding that this would be error. But sup- pose the defenitant asked that the doubt be pointedly and directly applied to his defence or defences, would it bo right or wrong for the court to thus ai)ply it? This brings to the front the rir/ht or wrong of the princi- ple. Now, it is conceded by all that if there be a doubt of the guilt of the defendiint the jury must acquit, and as there can l)e no guilt Mil bout sanity, a doubt of sanity would therefore be a doubt of guilt. If it be i)roper to acquit upon doubt of guilt, how can it be wrong to acquit upon a doubt of sanity, upon which guilt necessarily depends? \\ Otild an honest and just man convict, if he had a well founded and reasonable doubt of the prisoner's sanity? Wo think not. Would justice demand his conviction, or would not reason, humanity, and justice imperatively ro(iuire his acciuittal? Then, if uiioua well- founded, reasonable doubt of sanity, justice demands Ids acquittal, is it wrong for the court to so state in its charge? Must justice be put to shame, driven to the rear, and forced nesses for :ing some- their opin- lable doubt, list be proved annot be ro- ot the flrst I an inherent, crime — con- •sition, if the tsari/ ingredi- e is the u-ant )r mistake, or Jcfeat guilt; lly apply the s? Talie, for in theft, and li a character stiou. U|)on itest. "Would ly the doubt ; not. Tlien > justly be spe- 3nt of an of- py are made the case. II pecial atten- urged by de- oubt to the iiderstood as But sup- Jie doubt be his defence wrong for lis brings to tlie princi- if there be ft'ndiuit the e can be no sanity would it be i)roper ow can it bo sanity, upon ids? Vould if he had a loubt of the not. Would ir would not inperatively upon a well- inUy, justice iig for the Must justice , and forced BURDEN OF PROOF. 85;:? Dissenting Opinion of Hurt, J. A number of witnesses for the defence testified tliat at tlie time of. and for some time previous to tlie shooting, the appellant had been drinking to great excess. They declared their belief in his insanity re- sulting therefrom, and that he did not know right from wrong at the time, nor what he was doing. Upon this testimony the appellant rested his defence. to ensconce herself behind some other proposi- tion f Has not the prisoner the right to have her brought to the front, face to face with the jury, and the jury to be ;.iade to pass upon her merits? In every trial, justice should be kept in the front rank, ant" not driven to the rear with the stragglers and camp-followers. We therefore conclude that, when requested by the prisoner, the court should charge the jury that if they have a reasonable doubt as to the sanity of the prisoner they should acquit him. Hatch r.State, (5 Tex. (App.) 384; Uobinson v. State, 5 Tex. (App.) .51'.); Kay v. State, 40 Tex. 29. This charge was asked and refused in the Webb Case, decided at this term {ante, p. 490), in which action of the court we think there was error. From the statement of facts in this case, it will be found that the defendant stated 'hat he was compelled to kill deceased; that he had taken suppei* at his sister's, near Hilliard's, and on his way home was pass- ing Dr. Harrington's, when he got after him with a pistol and ran him down, when he wheeled and shot him. The State intro- duced these statements. It further appearsi from the horse -tracks, that deceased was running his horse along the road in the di- rection of the person who shot him, and also that the deceased fell in the road, and that his pistol was lying by him. The kill- ing was in the night, and was not seen by any person. Under these facts, defendant proposed to show that just before, or a short time before the killing, deceased threatened to kill tlie defendant. This being objectoii lo Dy che State, the court sus- tained the objection; to which the defend- ant excepted, and reserved a proper bill of exceptions. It is conceded by the assistant attorney-general that this evidence was ad- missible, but contended that the defendant is not injured by its rejection, because the facts establish overwhelmingly that defend- ant was waylaying the deceased, and that the right of self-defence was thereby for- feited. It will be seen that, under this state of case, our third proposition is found, viz.': "Can the proof be so plenary on one side as to justify the court below in tlu; rejection of legitimate and proper evidence in behalf of the other side? " To this proposition our answer must be in the negative. To hold the contrary would ninke the court the judge of the weight of tlie evidence and the credibility of the witnesses, which is imper- atively and invariably the province of the jury. There can be no case until the evi- dence is closed on both sides, and tln'ii, and not till then, can it be proiierly termed the case. This evidence, which legally and justly constituted a i>art of the case, being rejected, the jury passes upon a part, and not the whole case, which nius^t, of neces. sity, result in injury lo the defendant. When the court charged the burden to be on the defendant to show insanity, we think there was error, and that the rejec- tion of evidence of threats was also error. For these the judgment must be reversed and the cause remanded. White, P. J., and Winkler, j. — W'e concur in the above opinion reversing the judgment, but cannot give our assent to the views or conclusions expressed with regard to the question of insanity. Our views upon this subject will be found in the opinion in the case of Webb v. State, a?jsue as to n, drunken lens. If, sxcuse the OS, defeat ry thereon 3le of the , Wharton , are very I, laboring 1, there is ild not be jsponsible I this case ge, in his 3 of law distinct that upon follows : of crime, quiry the lis will sat- remanded. is ,vol. 1, p. ; Marshall 'tate.lTex. 298;SuttOD ate, 1 Tex. (App.)539; 48(5; Fran - 'Connell v. ate, 9 Tex. 'ex. (App.) )358. DRUNKEXNESS. 855 Charge of Court as to. law requires in such cases is not as to the amount of intellectual capac- ity of the accused, or in other words, the law does not look to or inquire whether an accused party is possessed of a little or a great mind. It is the quality and not the quantity of the mind that the law looks to. If a man is in possession of a sound mind, has merely sufficient mental capacity to know right from wrong, to know and comprehend the nature and consequence of his own acts, the law holds such party accountable. On the other hand a man may be in the possession ordinarily of that whif.a would be termed a great mind, still if such person, during a period of actual insanity, violate the law, such person would in law not be a subject for punishment, and in such case it is in law immaterial what the cause of said insanity may have been. But in law insanity and mere drunkenness are two things distinct one from the other. While insanity exonerates from all punisliment, mere driuikenness neither mitigates nor justifies. If a man of his own volition voluntarily be- comes drunk, and during a fit or spell of even very great intoxication, does an act, he cannot in such case plead drunkenness as an excuse. The law will not allow a sane man to shield himself from the conse- quences of his own acts on the ground that such sane man, of his own accord and of his own will, chose to become even boastily drunk. No mere temporary condition of the mind, brought about by a fit or mere spell of drunkenness, however great such drunkenness may be, is in law an exoneration or excuse for crime." This charge, so far as the defence of the defendant is concerned, is negative in its character. There is no direct, affirmative application of the law to his theory of defence. It is true that the jury are told that if they believe that the defendant is actually insaiie, he would not be amenable. This is very general, including every species of insanity. The evidence tending, whether strongly or otherwise, to establish delirium tremens, the charge should have explained that species, and applied the legal ])rinciples thereto. This should have been done clearly, distinctly and affirmatively. Again, the charge makes the test of insanity depend upon whether the defendant knew right from wrong generally. The test is now settled to be whether the defendant knew the act charged to be wrong ; if so, he is punishable. There is another objection to the charge. It proceeds upon the idea that no temporary condition of the mind produced by drunkenness can avail. This is a correct assumption if delirium tremens can never result directly and immediately from drunkenness. This, however, is not the case. Though usually occurring in habitual drinkers after a few 856 EVIDENCE AND PRACTICE. Notes. day's total abstinence from spirituous liquors, it may be the immediate effect. » For the errors above pointed out the judgment is reversed and the cause remanded. Reversed and remanded. NOTES. § 7G. Barbarity ol Crime does not Raise a Presumption of Insanity. — The barbarity or enormity of the act raises no legal presiunptiou of insanity.* In Lake v. People,'^ tried in New York in 1854, it was said by the judge in cliarging the jury: "It is contended tliat the fact of the i)risoner killing tlie woman with whom he coiiabited and his own children, is in itself, evidence of insanity. This argument evidences not only a want of knowledge of human nature and of the springs of human action, but the grossest ignorance of the his- tory of mankind. For, from the time Cain slew his brother, down to this day, when almost every newspaper brings tidings of a Avife killed by her hushand, or children by their parents, all experience shows that no ties, however strong, no relation, however sacred, not even the bonds of afliuity and consanguinity, could withstand the wrath of an exasperated man; and, indeed, when carefully and closely considered, the domestic relationship, so far from being a barrier against violence, invites to i,ts commission, by the opportunity it offers, and the help- lessness of a portion of its inmates. Those who are constantly together have such abundant means of discovering the offensive traits in each other's disposi- tion, that love not unfrequently degenerates into hatred, and the intimacy of the family circle, w)>ich should lead to peace and happiness, too often furnishes the occasion for angry irritations and collisions which ultimately terminate in violence and bloodshed. And when we consider, in addition to this, the num- erous evil minded persons, their ungoverned passions, the artillcial excite- ments to Avhich they resort, we can hardly be surprised that a very large portion of the homicides occur amongst those who are connected by the ties of family or blood. Indeed, it is well known, historically, that infanticide, or the murder of one's own children, is the prevalent crime in some countries, and there is too much reason to believe that it is too frequent in this. Perhaps my views may be colored by personal observation. The last case of mrrder tried in this court room was that of a woman for poisoning her husband ; the other one tried in the same court, was that of a man for killing the child of his wife; both of them were executed in July of last year. In June last a man was tried before me iu Brooklyn for beating his wife to death, and in December of the 1 Wharton & Stille's Med. Jur., vol. 1, sect. 202; Kay'B Med. Jur. 238. a State v. Stark, 1 Strobh. 479 (1847) ; Laros v. Com., 84 Pa. 8t. 20Q (1877) ; Holsen- bake V. State, 45 Ga. 43 (1872) ; Ball's Case, 2 City Hall Reo. 85 (1817) ; Plenovi's Caoe, » City Hall Rec. 123 (1818). 8 1 Park. 495; «. c, People v. Lake, 12 X. Y, 358 (1856). NO INFEKENCE OF INSANITY FROM CRIME. 857 Adultery — When Evidence Kelevant. mmediate I and the anded. isanity. — isanify.2 i judge in dlliiig the idcnce of of human if the his- tliis day, sliand, or trong, no ity, could ■fully and .'r against the help, ther have 5 disposi- iniacy of furnishes ninate in the inini- 1 excite- ortion of amily or lurderof "e is too i may be is court tried in fc; both as tried rof the 's Caoe, ft !,12X.Y. year before last, a man was tried before me in iJroolilyn, who stabbed his wife, his motlier and liis sister, all tlie i)crsons present. The wife and niotlier were killed on tlie spot; the sister, tliougii dangerously wounded, survived to tell the story on the witness stand. It was done in broad daylight, and the culprit immediately walked out of tlie house and surrendered himself up, declaring his readiness to suffer the penalty of his crimes. No insanity api)eare(l in the case and he was executed in January, 1852. To say, therefore, that a man will not kill his relations unless he is insane, is ecpilvah nt to saying that he will not commit crime unless he is insane; or in other words, tliat there is no such thing as crime, inasmuch as its wickedness proves its innocency; it is hardly necessary to add that such a doctrine is Kul)verslv(! of all order and safely, and does away with the whole administration of criminal justice, and is just worthy of the source Avhence it originated, namely, among French intldels, and German metaphysicians and trauscendeutalists." § 77. Evidence of Wife's Adultery Relevant, When. — i;vi(lence of informa- tion to the prisoner of his wife's adultery is admissil)le to show that he committed a nnirder in a state of frenzy, only where it is shown that the in- formation was given so near the time of conunitting the crime that the court can see that there was not a sullicient period for the passion, it would natu- rally excite, to abate. i In Snu'iirry. State'^ evidence that the deceased (the prisoner's wife) had for a long time been having criminal intercourse with other persons, and that the prisoner had for a long time been cognizant of this, was held inadmissible by itself as tending to show insanity. In Guptig v. titate^ the judge instructed the jury in these words: " If the jury should llnd from the evidence that there is a reasonable douI)t whether the defendant has been subject to attacks of ei)ilepsy, and if this fact (if so found) has been suppknent'Hl by testimony of expert witnesses establishing to the satisfaction of the jury ^'evidence raising a reasonable doubt being sullicient) that epilepsy is a disease which tends to produce insanity, this evidence vunild not be sufficient to raise a reasonable doubt of his sanity at the time of the alleged commission of the homicide. There must be sulUcieut evidence to raise a reasonable doubt of actual insanity at the time of the alleged commission of the offence." This instruction was held to be erroneous. Referring to the ruling in Sawyer v. State, the court said: "There are some important distinctions between this case and the one before us. It is clear that the fact that Sawyer's wife had been committing adultery with Kii)bs and other men, and that Sawder knew the fact, would not tend to produce the di^sease of insanity in Sawyer. It might very much enrage or distract him temporarily, but would not tend to produce insanity as a disease. This is a very different statement from the facts sup- posed in the instruction we are considering, namely, that Guetig had attacks of epilepsy, and that epilepsy tended to prove insanity. Besides, in the Sawyer Case the question was one upon the admissibility of evidence, which is solely for the court to decide. The question in the present case is one upon the 1 Sanchez v. People, 22 N. Y. 147 (1860), 7 Abb. Pr. (x. 8.) 321 (1868); State v. John,, aflliming on this point Sanchez v. People, 8 Ired. (L.) 330 (1848). 4 Park. 535, reported sub. noin. People v. = 35 ind. 80 (1871). Sanchez, 18 How Pr. 72 (1859) ; Cole's Trial, ' 63 Ind. 278 (1878). 858 EVIDENCE AND PHACTICE. Notes. insufflclcucy of the evidence to prove a given fact, wlilcli is solely for the jury to decide. * ♦ ♦ ry\^^, instruction complained of, compactly stated, plainly means tliat if the appellant has been subject to attacks of epilepsy, and epilepsy is a disease which tends to produce insanity, these facts are not sufllcient to raise a reasonable doulit of his sanity at the time of the allej^ed commission of the homicide. It is not clear in the statement of the time of the attack of the ei)ilepsy in relation to the time of the commission of the offence. For aug'iit that the instruction says In words It might be understood to mean that If tlie appellant had attacks of epilepsy on the day the deed was done (a fact, indeed, which tiie evidence tends to prove), or an hour before, or even at the time it still would not be sulliclent to raise a reasonable doubt of his sanity at the time, the homicide was committed. Such a view would be plainly erroneous. The Instruction is also erroneous, because It directly states that certain evi- dence which is legitimately before the jury Is not sufllcient to prove a certain fact or to raise a reasonable doubt of a certain fact.' 'i § 7S. Declarations not Res Gestee Inadmissible. — The declarations of the prisoner unless res (jesUn are inadmissible. So It was held in State v. Scott" that where a prisoner had connnitted homicide at ten o'clock at night evidence of what he said next morning was inadmissible to prove his insanity. " We un- derstand the rule to be," it was said in a subsequent case in the same State, " that a party charged with a crime can never i)ut in evidence in his own be- half any declarations of his after its commission, not even iu support of Insan. ity as a defence, unless as a part of tiie res (/estw. to some act which is admitted in evidence." ^ Tlie prisoner's declarations made after the commission of the crime that he was sane when he committed It arc admissible against hini.i Declarations of the deceased that the prisoner was insane are irrelevant.* In a rennsylvania case it was held not error to refuse evidence that the deceased had said: " My husband shot me, but I don't want him punished," for the pur- pose of showing that she believed him insane and not accountable for his ac- tions." § 70 . Confldential Communicationa Between Husband and Wife — Testi- mony as to Insanity not within the Rule. — In United States v. Guiteau,'' a Mrs. Dunmore, who had been married to the prisoner in July, 18G9, and was his wife for four years, but at the time of the crime and the trial w'as divorced from him and married to another man, was called as a witness for the prosecution, and asked Avhether in her association with the prisoner she had ever seen any- tliing that would indicate that he was insane. It was objected that her answer would infringe the rule regarding confldential communications between hus- band and wife. The court allowed the question and the witness answered that she never had. On appeal tlie ruling was affirmed. "The question," said the Supreme Court, "called for the witness' observation of the defendant's sound- 1 The court is not bound to hear evidence upon wliicli to ground a in-esuniption of the possible insanity of tlie prisoner, until di- rect evidence of tlie prisoner's insanity has been given. Laros v. Com. 84 Pa. St. 200 (1877). 2 1 Hawks. 24, (1820). 3 State V. Vanr., 82 N. C. 631 (1880). * State V. Krin,?, 74 Mo. 612 (1881) ; Gui- teau's Case, ante. 6 State V. Spencer, 21 N. J. (L) 196 (1846). 8 Sayres v. Com,, 88 Pa. St. 291 (1879). ' 1 Mackey. I CONFIDENTIAL COMMUNICATIONS . 85y Acts and Conduct at other Times. tor the j ury ted, i)luinly nd epilepsy ufflcient to mission of e attack of ence. For mean that ne (u fact, ■en at the H sanity at L'rroneous. jrtain evi- ; a certaiii 3ns of the Scott " that vidence of " We un- ime State, Is own be- of insan. 1 admitted ion of the inst liini.i ■ant.* In deceased the pur- ■ his ac- — Testl- uiteau,"' a 1 was his ccd from edition, cen any- answer en hus- I'ed that aid tlie sound- 1); Gul- )6 (1846). 79). •ncss or unsoundness of mind, and the objection goes partly on the "iround tliat, notwithstandin*^ tlie ruling of the court that conlldentlal cDUinuiuieations be- tween the liusband and wife were protected, slie may have included, as . part of tlie bias of her answer, what are understood as communications from lier former husband. We think that the exhil>ition of sanity or insanity is not a eonnnuid- catlon at all, in the sense of the rule which protects tlie privacy and conildencc of tlie marriage relation, any more tlian the lieight or color, or blindness, or the loss of an arm of one of the parties is a communication. The rule which is sup- posed to have lieen violated was established in order that the conduct, the vol- untary conduct, of married life might rest secure upon a basis of peace and trust, and relates to matters which the parties may elect to disclose or not disclose. It was provided in order th:it matters should not come to the light, which would not do so at all without a disturbance and disregard of the bond of peace and confidence between the married pair. Therefore it has not been applied to any matter which the husband, for example, has elected to make public, by doing or saying it in tlie presence of third persons along with liis wife; and it cannot be applied to that which, whether he will or no, he inevitably exhiiiits to the world as well as to liis wife. Some diseases a husband may conceal, and he may clioose whether to reveal them or not. If he should reveal the existence of such a dis- ease to his wife, in the privacy of their relation, slie may never disclose that communication, even after the relation lietween them has ceased. But sanity or insanity are conditions which are not of choice, and when the disease of insanity exists, the exhibition of it is neither a matter of voluntarily confidence nor capa- ble of being one of the secrets of the marriage relation. The fact that there are instances of cunning concealment for a time, does not affect the general truth that insanity reveals itself, whether tJie sufferer will or no, to friends and ac- quaintances as Avell as to the wife. In short, the law cannot regard it or protect it as one of tlie peculiar confidences of a particular relation. It may be added that it is diflicult to jierceive, in any view of tliis subject, liow the witness' de- nial that she had seen indications of insanity can be said to reveal any fact whicli her husliand had communicated to her. If our opinion that sanity or insanity cannot be a communication within the meaning of the rule should be Avroiig, it must be remembered that sanity is a presumption of law, and that the wife would seem to reveal nothing to the world, unless she should say that the cxisccnce of insanity in her husband had been communicated to her liy his conduct during their connection. We are of opinion that no error was committed in receiving this evidence." § 80. Evidence of Acts and Conduct at other Times. — Tlie prisoner's acts and conduct at times other than that at Avhich the; crime was committed are receivable in evidence. i Where the sanity of a prisoner is at issue, a letter written hy him, prior to the commission of the alleged offence is admissible in evidence to throw light on the condition of his intellect at the time of the act charged. If destroyed, secondary evidence of its contents may be given.'- In a Georgia case it was held tliat evidence of a conversation subsequent to the act 1 Com. V. Pomeroy, 117 Mass. 143 (187.5) ; State V. Kelly, 57 N. II. 549 (1876) ; Guiteau's Case, 10 Fed. Rep. 161 ; State r. Hays, 22 La. Ann. 39 (1870); U. S. v. Holmes, 1 Cliff. 98 (1858). = State V. Kring, 64 Mo. 591 (1877) , over- ruling on this point State v. Kring, 1 Mo. (App.) 438 (1876). 'Iv 860 EVIDENCE AND PRACTICE. Notes. churgc'd was inudinissil)lo to piuvc the cU-femlant's insanity ; and so are tests made l)y one not an expert at liie time.' In a Delaware case, an odd coileetion (if various articles of no novelty or value, even as curiosities, wldeh the prisoner liad made from time to time, and had long preserved, with a view of starting a museum, were allowed under the plea of insaidty to l)e i)roduced and sliown to the jury .2 Where tiie defence was that tlie homicide charged had l)een committed by the prisoner under the insane delusion that the deceased and others were engaged in a eonsi)iracy against him, expressions of hostile feelings toward the prisoner made by the deceased, though not shown to have been made in the de- feuilant's presence, nor to have come to his lf ('oiitliumiirc of Insanity. of tho crime. 1 It liii.s l)t'en held that it is t'()ni|)C'tL'nt for tlie proseatlion, af/ninst the prisoner'' s ohjietinn^Ui \\\ivo<\\um ayMKiniiv tliat lie was intoxicated a sliort time previous to tlie eoniniissiou of tlie offence charfjed, i);'ovided sncii testi- mony nial Bowden v. People, 1-2 IIuii,S5 i;i'^'77). ■ Stater. Spencer, 21 N.J. (L.) I'.Ki (184 By your decisions, matters of extenuation and excuse, or discharg' , ason of Insar ity, must be shown by him wlio sets it up; otherwise the i)lied malice con- tinues, and the case remains in tlie judgment of the law a ense o* murder. This case (Willis') was carefully considered, and in view of our oww decisions and the crown law of England, and after commenting on Commonwealth v. York,^ and the dissenting opinion therein of Wildk, J., a conclusion is reached, ill 1 Foster's Crown Law, 25.5; East P. C. 224 ; State r. Willis, o;( N. C. 26. - See Foster ami other auiliorities, sK/jra. ^ State V. Willis, supra. < 9 Mete. !)3. rUKSUMlTION OF COXTIMUANCE OF INSANITY. 803 Temporary lusaiilty. harmony with provlous riilltiKS in tlilHcotirf, that, matters of mltii»atli>n, excuse, or jiistllleation must always conu; from him wlio claims the lu-iietlt thereof, am! must bo proved not Ix-yoml ii reasonable doubt, l)ut only to the satisfaction of a jury; and to this caso we assent, as controlling the case under consideration. Ai)plylujJC tluj prluciplo al)ovo enunciated and estal)llshe(l i»y Willis^ Cusp, the prisoner, by tlu; voluntary Ixllllui; of (iatlinii, adndtled by himself, and tlie con- sefpieut Implied malice, went to trial with tho Icf^al conclusion of murder af;alnsthlm; and to have accpilttcMl himself it would have i)een lncund)ent on him to have proved an habitual or permanent Insanity before tiie homicide, and If the fact of its exlstcnco orisiinally, or its presumed contluiuince at llu; time of tlie killing, was controverted by tho evidence of the State, he would have had to show, and that by evidence satisfactory to tho jury, at least, the fact of a continuance of insanity at the time lu! slew the deceased ; orfailinsso to do tho le^al conclusion from malice lmi»lled would have Htiil remained and his offence would still have been murder. Now on tlie trial, the Slatt! dlsiiensed wltli proof by the prisoner of insaidty at a day anterior to tlie homicide by admitting that nnich for him, and thereby the issue was reduced to tho sinjile fact of tho existence or non-existence f)f prisoner's Insanity at tlm time of tlie killing. Upon that point, evidence was Introduced by tlie Stale tending to show tlie non-exhstcncc of insanity, and the prisoner did or might have Introduced testimony In aid of the presumption already in ills favor from the admission of insanity before tho homicide. In order U) satisfy the jury of the existence of his Insanity at the time of the killing, anil tho prisoner falling to satisfy tho jury of tho truth of Ills defence, there remained then the fact of tlio voluntary act of killing and with malice implied, and this in point of law, made tin; (;rimo nuir- der.i After a careful investigation of the sevf-'al exceptions taken by tho prisoner, Ave arc unable to discern any error of law on tlie trial, and we must so declare, and this will be certilled, to the end that the sentence of the law may be executed." It is only habitual insanity, which once proved to exist, the law presumes to continue; the presumption does not ai)i)ly to a temporary insanity resulting from some transient cause'' or drunkcteess.^ If a jierson bo proved to have had on a particular occasion a paroxjsm of mania a potti, or delirium caused i)y fever, or by sudden and severe mental agony, there would bo no presumption tliat the same state of mind continued after the exciting cause was removed. On tho contrary the presumption would bo that tho mind was restored to Its normal condition when tho disturbing element liad ceased to operate. In Peo- ple V. Francis,* the defendant asked tho court to instruct tho jury that " insan ity once shown to exist was presumed to continue until tho contrary was .shown." In the Supreme Court it was said : •' If the term insanity, as emploj'od in these instructions is to bo con.strued as referring to a general unsoundness of the mind, and not to an aberration of a temporary nature proceeding from some transient cause, then the instructiijus correctly state the law. » * * The vice of these instructions is that they state the proposition too l)roadly. 1 state V. Willis, sujtra; Com. v. Eddy, 7 Gray, 583. 2 State V. Scwell, Z Jones (T..),245 (1855) ; State V. Reddirk, 7 Kas. 144 (1871). 3 Id. <38Cal. 183(18f9). 864 EVIDENCE AND PRACTICE. Notes. As we have shown, every species of insanity is not presumed to continue until the contrary is sliown, but only a general habitual insanity, not proceeding from a transient cause, uiul if the instructions had been properly qualified in this respect tliey ought to have been given. But in the iorm iu which they were offered, they were properly refused." § 83. Evidence »5f Insanity in Relatives. — Where the defence is hereditary insanity, the mental condition of tiie prisoner's immediaLe relatives is relevant ;! e.g., that his mother, or aunt,-' his brothers or sisters, ^ or his father, was in- sane.' But insanity in the prisoner's family is irrelevant where there is no evi- dence that he himself is insane.^ Where there is no evidence that a prisoner ever exhibited any signs of Insanity, evidence that some of his uncles and aunts were insane is inadmissible." Evidence of the insanity of the mother and uncle or other relatives of the prisoner must i. i disregarded, if there is no other evi- dence tending to show that he was himself insane at the time he did the act charged.' In i^late v. Simms,^ the defendant was indicted for the murder of James Reese, the defence being insanity. On the trial the court instructed th^ jury that the fact that some or all of a person's ancestors have been insane docs not of itself prove that person insane, "and if ther ; is no direct and preponderating evi- dence of insanity of defendant at the time he killed Reese, the jury cannot jus- tify or excuse the killing on that plea." On appeal this Avas held erroneous. "The vice of that instruction is," said IIexrv, J., "that it requires direct proof of insanity. What is meant by th ; term ' direct ' in that connection I cannot tell, but it was calculated to make an impression on the minds of the jury that evidence of the insanity of one of defendant's aunts and two of his sisters, which was proved, was not worthy of much consideration; but the evi- dence must be direct that defendant was insane. Direct evidence would be that of medical experts that they had exanuned the defendant and found nim insane, or of persons who had been familiar with him, and from their personal obser- vation believed him insane. If the instruction means anything it was intended to exclude from the consideration •>; the jury all other evidence of insanity. An act which would not indicate the insanity of a person in whose family there had been no case of insanity might be a very stiong circumstance to prove in- sane a person whose aunt had died in a mad-house." And the court held that this erroneous instruction was not cured by another to the effect that the fact of the prisoner's insanity miglit be established by facts and circumstances ao well as by direct ovluence. In a Connecticut case, the prisoner having introduced evidence to prove that his sister had been insane about six years, the court permitted the prosecution to inquire, on cross-examination, Mhat caused the Insanity, for the purpose of showing that it was not hereditary. On iii)peal, this was held proper. " Obvi- 1 Hagan v. State, 5 Baxt. 615 (187,5) ; U. S. r. Ildlmes, 1 Cliff. OS (1858) ; Guiteau's Case, 10 Fed. l!op. IGl. 2 reopli! V. .Smith, 31 Cal. 406 (1866), 8 People t'. Garbutt, 17 Mich. '.) (1868). * State V. Felter, 25 Iowa, 67 (1868). <• Cole's Trial, 7 Abb. Pr. (N. S.) 321 (18G8). » S..ite V. Cuiuiiiighain,72 X. C. 46'.) (1875). f BratUey v. State, ;!1 lad. 402 (1860). 8 68 .Mo. 306 (1878). CHARACTER OF PRISONER RELEVANT. 865 Opeciflc Acts of lusauity — Proof of other Crimes. ously," said Loomis, J., "one of several children might be insane from manj- causes tliat could not possibly affect the otlicrs. If, therefore, the testimony in chief was relevant at all, wliich is doubtful, there is no possible ground for its admissibility, unless it tended to show a taint of insanity descending with the parental blood. So that the cross-examination M'as strictly legitimate, as calcu- lated to furnish an instant and perfect test of the value of the testimony." i § 84. Character. — Where the plea is insanity, evidence of the prisoner's previous good character is relevant.* In Johnson v. State, tlie prisoner being indicted for burglary pleaded as a defence tliat at tlie time of the commission of tiie crime his mind was so beclouded by the excessive use of intoxicating liquors as to rendered him incapable of forming a felonious intent, and he offered to prove his general character for many weelvs previous to the time of the crime. The rejec- tion of this evidence was held to be error. *' It must bu supposed," said the Court of Appeals, "that the offer to prove the general cliuracter of the accused was made Avitli reference to tlie matter undergoing investigation, and that he either sought to estnblish a character for honesty or it was his intention to con- fine the inquiry to his general condition for several weeks previous to the alleged commission of the offence charged, as bearing on his mental capacity at the time it is alleged the offence was committed." § 85. Specific Acts of Insanity Need Not be Shown. — In People v. Tripler,* the prisoner, Eliza Tripler, was charged witli stealing five silver spoons from tlie house of Mr. Stoneliale. Mr. Stonehale missed tlie spoons, and immediately went to the silversmiths in the neighborliood and gave them a description of the articles stolen. The prisoner offered them for sale, and was detected, taken to the po- lice, examined and committed for trial. The spoons were proved to be the property of the prosecutor, and these facts were made out to the satisfaction of the court and jury. Tlie defence set up was that the prisoner was at times in- sane; her sister testified that she had a fall some years ago, " that affected her head." Tlie prosecutor himself thought " her conduct was strange," but none of the witnesses testified to any act or acts of mental derangement, or pointed out any particular manner of conduct to show it. By tlie Court: "Although the de fence has not been satisfactorily made out, yet there was quite enough made out to raise a doubt in the mind of the court of the prisoner's being a person of sound mind, and wliere a doubt exists, it would always be the safest way to acquit. Insanity itself is calamity enough without inflicting the pain of a convic- tion and its consequences. The witnesses have not shown any particular act whereby W'e could discover derangement, yet it is sufl[lcient to say that a doubt has been raised, and that doul^t ought to operate in favor of the prisoner." The jury returned a verdict in favor of the prisoner, without leaving the box. § 80. Proof of Other Crimes. — As a general rule where a man is accused and on trial for one crime, the fact that he has committed another crime is not relevant. But it has been held that whers the defence to a charge of muider is insanity, 1 State V. Hoyt, 47 Conn. 518 (1880). s Hopps V. People, 31 111. 385 (1863). 65 3 1 Tex. (App.)l!n(13;6). * 1 Wheeler, Cr. Gas. 49 (1822). 866 EVIDENCE AND PRACTICE. Notes. and the coolncsf and unconcern of the prisoner at the time he committed the homicide are relied on as justifying inferences favcable to the plea, it is competent to show that the prisoner had been in his early life engaged in the perilous call- ing of smuggling, as tending to rebut the presumption tliat his deportment oa the occasion of tiie act for which he is charged was attributable to insanity.^ § 87. Testimony on Former Trial. — Where a witness becomes insane, his tes- timony on a former trial is admissible .' The record of proceedings on another trial in which one of two defendants who- are jointly indicted is adjudged insane, is not evidence against his co-defendant of the fact of such insanity on a trial under the indictment.' § 88. Pleadiner— Trial. — Under a plea of " not guilty," the prisoner is entitled to show his insanity at the time the crime was committed.* Insanity is a ques- tion of fact to be decided by the jury.* The New Yorli statute authorizing the court to appoint a commissioner to pass upon the prisoner's sanity, does not talce away from him the riglit to have the question of his sanity decided by a jury under a plea of not guilty .< § 89. Bight to Open and Close. — The plea of not guilty and defence of insanity thereunder does not give the defendant the right to open and close .^ § 90. Judge need not Specially Define the Various Types of Insanity. — In Stuart V. State,^ it is said by the Supreme Court : " It is earnestly argued that the law applicable to this defence was not properly submitted to the jury. The charge, in substance, was that the law presumed the prisoner. If over fourteen years of age, to be of sound mind, and the burden was upon him to introduce proof to show his want of sanity, or to create a reasonable and well-founded doubt of his sanity, to entitle him to an acquittal. The judge, in his charge, does not use the words mania a potu, delirium tremens, or other similar language, but uses the words, "unsoundness of mind," or insanity; the jury were instructed that to relieve the prisoner it was sufficient to show the unsoundness of mind, or create a reasonable doubt of the prisoner's sanity; and this was sufficient, whether the disease be permanent or temporary, and whether caused by the voluntary use of ardent spirits or otherwise. We do not think it essential that the judge sliould have specially defined the various classes or types of insanity. It is the unsoundness of mind that excuses the act. According to the proof, mania a potti is a disease in which the mind Is unsound. The language of the charge Is comprehensive enough to embrace the particular classes of Insanity indicated by the proof. It says: The • unsoundness of mind may be temporary, caused by the use of ardent spirits.' This is what physicians call mania a potu, or delirium tremens, and If the proof made out a case of mania a potu, it made out a case of mental unsoundness. We think in this there was no error." 1 Hopps V. People, 31 111. 386 (1863) i Marler v. State, 67 Ala. 55 (1880). s Harler v. State. 67 Ala. SS (1880). * People V. Olwell, 18 Cal. 456 (1865). ^ State V. Holme, 64 Mo. 163 (1873), citinff State V. Hundley, 64 Mo. 414 (1864) ; Statu v. Kring, 64 Mo. 691 (1877). « OBtrandcr v. People, 28 Hun, 88 (18S2). ? Loeifner v. State, 10 Ohio St. 598 (1857) ', State t<. Felter, 32 Iowa, 49 (1871). « 1 Baxt. 180 (1873). ■ itted the )mpetent OU8 call- tinent oa inity.^ , his tes- lants who lefendant s entitled s a ques- rlzing the does not ided by a lefence of close.' Dlty.— In d that the lie charge, een years uce proof led doubt does not uage, but nstructed of mind, efficient, by the ntial that. insanity. ;he proof, ge of the insanity mporary, ia a potUf it made ;d jr." ); Statu v.^ 88 (1882). 598 (1857) ; > DUir TO INSTRUCT AS TO INSANITY. S6T Jury may be Cautioned as to Defence. § 91. Duty to Instruct on Insanity Plea. — In Texas it is held that the court should charge Sv)ecially on the defence of insanity, however slight theeridcnce adduced,! or whether asked or not.* Evidence that the accused is of a lower order of intellect than other members of his family is not, of itself, sufficient to impose upon the court the duty of charging the jury on the subject of insanity J § 92. Jury May be Cautioned as to Insanity Plea. — The jury may be In- structed that the evidence relating to insanity should be carefully and intelli- gently scrutinized ; * that no pretended case of insanity should be allowed to shield a man from the consequences of his own acts, they, at the same time, being told also that if one has really committed an act which is the result of a diseased or unsound mind, the defence of of insanity would be a good one, and the prisoner should have the benefit of it.' In a California case the judge said to the jury: " In prosecutions for crimes,, the defence of insanity is often interposed, and thereby becomes a subject of permanent Importance in criminal jurisprudence. A due regard for the ends of justice and the peace and welfare of society, no less than mercy for the accused, require that it should be thoroughly and carefully weighed. It is a plea some- times resorted to in cases where aggravated crimes have been committed under circumstances which afford full proof of the overt acts, and render hopeless all other means of evading punishment. While, therefore, it ought to be received, as a not less full and complete, than it is a humane, defence when satisfactorily established, it yet should be examined into with great care lest an ingenious counterfeit of the malady furnish protection to guilt." This was approved in the Supreme Court." In another case the court said to the jury: " Insanity is a defence often resorted to, and in most cases, when every other ground of de- fence has failed. From its nature it ou^ht to be received in all cases by jurors with the greatest degree of caution and circumspection."' In McKee \ People,^ it was held proper for the trial judge to say to the jury: " If you find the prisoner, at the time Dr. Bennett was observing him through the hole in the wall, as described by the witnesses, was watching to see whether he was observed, and wr/^ regulating his conduct accordingly, it would raise a very strong presumption that the prisoner was feigning insanity, and, indeed, such evidence of design and calculation on his part, as to be, in my opinion, en- entirely fatal to this defence of insanity." "A leference to Dr. Bennett's testimony," said the court, "will show the cir- cumstai ces under which he watched the prisoner, and were important to de- termine whether the insanity imputed to the prisoner was feigned or real. The doctor said he was looking through the hole prepared so that he might observe the prisoner, and was looking through the hole when the prisoner was put into the west side of the jail. As soon as the sheriff closed the door, the prisoner walked through the hall, going through the same motions as he had been be- 1 Erwin «. State, 10 Tex. (App.) 700 (1881) ; Looney v. State, 10 Tex. (App.) 620 (1881). • Thomas v. State, 40 Tex. 60 (1874). » Powell V. State, 37 Tex. 348 (1872). * Sawyer v. State, 35 Ind. 80 (1871) ; Quetlg V. State, 63 Ind. 278 (1878). i> People V. Bumberger, 45 Cal. 650 (1873). • People V. Dennis, 39 Cal. 626 (1870). ' Sellick'B Case, 1 Citr UaU Rec. 18S (1816). e 36 N. Y. 113 (1867). 868 EVIDENCE AND PRACTICE. Notes. fore. He then walked back toward the hole, and as he did so the witness noticed his eyes directed towards the aperture. It could be seen from the in- side. He did it two or three times. lie came near the aperture, passed to one side and stood still a moment. He then crossed directly in front of the aper- ture to the other side. He then appeared to bend forward, and looked into the hole and dodged back. The conduct of the prisoner, as thus detailed, if he was Avatching to see whether he was observed, and was regulating his conduct accordingly, was most important for the consideration of the jury on the issue whether the insanity claimed for the prisoner was real or feigned. If the jury came to the conclusion that the prisoner was watching to see if he was ob- served, and believed he was, then his conduct clearly evinced such evidence of calculation and design as conclusively showed tliat he was not at thut time, at least, insane. It certainly tended strongly to show that the defence of insanity was not founded in fact, and the expression of the opinion of the judge that it was fatal to the defence of insanity is not a matter of exception." §93. Insanity — Findiner ot Jury Conclusive. — In Johnsonv. >S'?(7f«,Uhe prisoner was indicted for assault with intent to kill. The defence was mental imbecility, but he was convicted. On appeal, theCourtof Appeals said. White, P. .J. deliv- ering the opinion: " The defence relied on was not so much insanity as mental imbecility, or incapacity to distinguish right from wrong. Upon this point the testimony is conflicting. Dr. Keating is the only witness Avho believes that the defendant is not a reasonable creature, but insane; the other witnesses believe him capable of distinguishing right from wrong, and accountable for his acts when not under the influence of some powerful emotion of mind. The witness King, who knew him well and lived in his immediate neighborhood, said he was a man of good sense — had sense enough to attend to his own business and make a good farm hand, and that he had never seen auything wrong with him. The charge of the court npon this branch of the case presented the law in explicit and ample terms, as now uiulerstood in this State, and the jury were fully apprised of their duty in the premises. The evidence, under such proper instructions as to the law, has failed to satisfy them that defendant's mental incapacity was such as to render him irresponsible for his acts. To support a plea of insanity the evidence must be such as to satisfy the minds and con- sciences of the jury to the extent that they can say he should be and is ac- quitted npon that ground. ^ Hliould it fail so to satisfy them, their finding is conclusive and will in no case be reversed, unless the finding is most clearly and directly against the evidence." In a Georgia court it was said: " There seems to be no evidence of insanity. The rambling statement of the prisoner is, it is true, very incoherent, but it would be rather dangerous to give much weight to an evidence of insanity so liable to imposition as this. The wickedness of the crime and the want of ap- parent motive would be equally dangerous. Motives are generally hard to dis- cover, and wickedness is unfortunately incident to human nature, even in sane people. We are free to say that we are not disposed to look kindly on pleas of llOTex. (App.)671. 2 Webb V. State, 9 Tex. (App.) 490; King V. State, 9 Tex. (App.) 67. NEW TIIIAL NEWLY DISCOVERED EVIDENCE. 869 Continuance. Insanity tliat liavc tlicir strongest evidence in the enormity of tlic crime, and they arc n : thuui^ht of until it liecomes important to excuse a violator of the law. So far as appears from tlie record in tliis case tliere was no other evidence of insanity, but the enormity of the crime and the incolierence of the prisoner's statement to tlie juiy, and even if we were satisfied tliat thecharge of tlie judge to the effect that they must be satisfied of the insanity of the prisoner before they can find him not guilty on that ground, we would not grant a new trial, simply because there was no evidence of insanity. i In liusscll v. State, it was said : 2 "We will remark that in taking leave of the points arising on tlie plea of insanity that an attentive perusal of the testimony fully satisfies us of the cor- rectness of the finding of the jury on this sul)ject. Apart from the fact that the prisoner had l)een some years before, and also in early childhood subject to at- tacks of epilepsy, there is nothing to support the idea that he was insane, save the unprovoked and cold-blooded murder of wiiich he was guilty and this, wc fear, proceeded only from the madness of passion or from a wretchedly inade- quate conception of the sanctity of human life." In Fisher v. State,^ it was said : " lu the case before us the evidence satisfactorily proved that the appellant Avas •ntoxicated when he committed tlie offence with which he was charged in the indictment; tliat he was an habitual drunkard; but we cannot say after the ver- dict of the jury that continuous excessive use of liquor had caused disease, pro- ducing insanity or idiocy, as a mental condition of tliat permanency which would render him un;iccountable for cnnie by him committed. We know as a matter of general knowledge tl\at sucli nienuil condition is not the necessary re- sult of such drunkenness," and ';he verdict of guilty and judgment thereon were affirmed. § 94. New Trial — Newly Discovered. Evidence — Cumulative Evidence. — Though a new trial is not granted on the ground of newly discovered evidence, where the evidence might have liee-.» discovered and used on the trial l)y the ex- ercise of reasonable diligence, nor where the evidence is simply cumulative,* yet in a capital case, where the defence is insanity, a more liberal construction is given to tlie rule — in the first case because negligence in an insane man may be overlooked, especially wliere he is defended by young or inexperienced counsel, and in the next because unsoundness of mind is Ijest proven by a series of facts and conduct extending over a considerable period.^ § 95 . Refusal of Application for Continuance — Evidence Not Cumulative. — In Webb v. State,^ it was held error for the court below to refuse an applitatiou for a continuance based on tlie absence of six witnesses wlio would testify to the prisoner's insanity. The Court of Appeals in passing upon the question laid down the general rules on the suljject of insanity as follows: Wiiitk, J. "It is a wise as well as most humane provision of our law tliat ' no act done in a state of insanity can be punished as an offence.' ^ With regard to murder, it is specially declared a part of the definition of the crime that it is tlie act of * a 1 Holsenbal£o t'. State, 45 Ga. 55 (1872). 2 53 Miss. 307 (1876). 3 Blliul. 435 (lt-7S). * State V. Uedemeier, 71 Mo. 173 (18Y9). s Aiulerson v. State, 43 Conn. 514 (1876). "5 Tex. (App.) 506 (1879). " Pasc. Dig., art. 1643. «70 EVIDENCE AND PRACTICE. Notes. person with a sound memory and discretion.' On tlie other hand, it is equally as well settled, both in law and in reason, that every man is pre- sumed to be of sane mind until the contrary is shown.^ 'In criminal cases, In order to absolve the party from guilt, a higher degree of insanity must be shown than would be sufficient to discharge him from the obligations of his contracts.'* 'In all such cases the jury are to be told t'lat every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is proved to their satisfaction; and that, to establish a defence on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring under «uch a defect of reason, from disease of the mind, as not to know the nature or quality of the act he was doing, or. If he did know % that he did not know he was doing wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused, at the time of doing the act, knew the difference between right and wrong; which mode, though rarely, if ever, leading to any mistake with tlie jury, is not deemed so aceu- rate when put generally and in the abstract as Avhen put with reference to the party's knowledge of right and wrong in respect to the very act with which he is charged.' * Mr. Bishop says : "The inquiry is directed to the particular thing done, and not to any other ; because, as we have seen, a man may be responsible for some things while not for others. Of course, also, it has reference to the time of the transaction, not to any other time. The reader, however, should distinguish these questions from questions concerning the proof; for, to ascertain the state of the mind at a particular period we may inquire into its condition both before and after in relation to a particular subject, its condition as to other subjects."* Evidence of the state of the mind of the party both before and after the act done is admissible in determining the question of sanity.* Another rule, -equally well settled, seems to be that ' if derangement or imbecility be proved or admitted at any particular period, it is presumed to continue until disproved, imless the derangement was accidental, being caused by the violence of a disease. But this presumption is rather matter of fact than law, or, at most, partly of law and partly of fact.'* Whatever may have been the rules of evidence heretofore with regard to the character of proof admissible on the subject of insanity, the doctrine that non-professional witnesses should be allowed to state their opinion as to the sanity of the party, derived from their acquaintance with and observation of his conduct, appearance, and actions, has become too well set- tled to admit of doubt or controversy at this time.^ We are aware that in Gehrke v. State our Supreme Court, following in the wake of the deci- sions In Massachusetts and New Hampshire, held otherwise.* The subject has, however, of late years been more thoroughly examined and discussed ; and in New Hampshire particularly, in the recent case of Hardy v. Merrill, Foster, C. J., of the Circuit Court, in a most elaborate opinion, concurred 1 1 Greenl. on £ v., sect. 42. »/d., sect. 372. 3 2 Greenl. on Ev., sec. 373 ; Carters. State, 12 Tex.600; IWhart.Cr. Law (6th ed.), sects. lo, 16. < 1 Bish. Cr. Law, (4tli ed.), sect. 476. * 2 Greenl. on Ev., sect. 371. B 1 Greenl. on £v., sect. 42. T Holcomb V. State, 41 Tex. 125; Mc- Clackey v. State, decided by this court at the Tyler term, 1878. 8 13 Tex. 568. CONTINUANCE. 871 Affidavit for, Not Admissible. in by tiie Supreme Court, reviews tlie previous decisions and overrules them, which places that court in full accord with the English and American doc- trine as it now generally obtains on that subject.' The case of Gehrke v. State* has been practically, as we have seen, and will hereafter be considered as over- ruled on this point. Now, from what has been stated above, it necessarily fol- lows that there are no definite limits within which the evidence can be restricted •on an inquirj' of this sort. Nor is the investigation one in which the judge could well say that additional evidence would be but cumulative of lilce testi- mony already adduced; for the greater the number of witnesses wlio would depose to the opinion that a party was insane, the more likely would the jury, we apprehend, be inclined so to believe and become satisfied of the fact. In the case at bar, the defence was insanity. An application for continuance was made on account of the absence of six of defendant's witnesses, all of whom had been duly attached, and were under bond to appear and testify. The facts to which they would depose are fully set out in the application, and it contained the opinions of those witnesses as to the insanity of the defendant, gatliered from their associations with him, and their observations of his conduct, lan- guage, and appearance for some weeks prior and down to and including the very day of the killing, both before and after the act. This application was, more- over, in strict compliance with the requirements of the statute. No reason is given by the court for its action in overruling it, and we are left to infer that it was upon the ground that the evidence was deemed immaterial or inadmissible. We do not think so ; on the contrary, it appears to us both material, admissible, and pertinent to the issue to be decided ; and its materiality becomes much more apparent when we consider it in connection with tlie evidence actually adduced for the defendant on the trial. How far these witnesses can be rolled upon for the truth, or how far their testimony might have influenced the action of the jury in finding their verdict, it is Impossible for us to say. As presented to us, the application for continuance was sufficient, and should have been granted." The case was reversed and remanded. §96. Evidence — Affidavit of Defendant for Continuance not Admissible on Trial. — In Farrell v. People,^ the prisoner was indicted for assault with in- tent to commit murder, and the sole defence at the trial was insanity. Before the trial he moved to continue the cause, on account of the absence of a material witness, and in his affidavit in support of the motion he deposed that he could prove by the absent witness that he did not fire the shot which constituted the alleged murderous assault, and that what he could so prove was true. On the trial, and after the prosecution had given to the jury all their evidence In rebut- tal of the evidence of the prisoner on the question of insanity, the prosecuting attorney was allowed to read this affidavit in evidence to the jury. In the Su- preme Court this was held erroneous. '* It is patent," said Scholfield, J., " that it was utterly irrelevant to the issue being tried. It did not tend to prove a single fact which it was incumbent on the People to prove or to disprove any thing which the plaintiff in error had attempted to prove. Of course the affida- vit of the party is competent evidence against himself when it is relevant to the I 86 N. H. 227 > 13 Tex. 568. « 103 111.17(1882). 872 EVIDENCE AND PRACTICE. Notes. Issue. It stands on tlie same footlnij as any other tleclarntioii niacin by hini un- der oath, lint who wouhl pretend that it wonldhe relevant on the (|Uestiou of insanity to i)rove that a party had before that time deelared his innocence of any participation in the act alle'j;e(l to be criminal, and had sworn to tlds declaration? The allidavit may be untrue and the plaintiff in error may have also been insane. If lie was in fact Insane, he may have had no recollection of the transacticni or no capacity to reason in reicard to it. In any view what he swore (o in his alli- davit cannot have a tendency to enliiihten the (|uestion whether he was affected with insanity at the time he connnitted the assault. The improper effect of the allidavit on the minds of the jury may h;ive been cither in producinj^ the belief tliat the defence of insanity was an afterlhouyht, and so not urged in fjood faith, or that plaintiff In error had connnitted perjury in makin;^ the allidavit, for which he deserveil punislnnent. If he was really insane when he conunitted the assault, it could lei^ally make no difference when the defcmce w'as llrst inter- posed, lie wt)uld not himself be a competent JndLre of his mental status, and the more certain his in.sanity, the more certain it would be that Ids allidavit ouirhtuot to be regarded for auy purpose. But the proof that he committed the assault being conclusive, the jury, without retlectiug whetl cr sane or insane, might conclude he Is clearly guilty of perjury, and use the fact of that guilt not only as a make-weight in determining his guilt of the specitlc offence charged, but also in llxlng the amount of his punishment for that offence. If .it be true that he committed perjury in the allidavit, he cannot be punished for that offence ill this trial. These principles ai'e obvious and can require no elaboration." § 97. Misconduct of Jury — Reading: Newspaper Accounts of Insanity as a Defence. — In State v. liubinson,^ the prisoner Avas on trial for murder, the de- fence being insanity. During the deliberations of the jury cojjies of the Wash- ington Post containing an account of the trial of Gulteau for the uuirder of President Garlield, Avhich was then going on, were received and read by them. In one of the copies of the Post read by the jury was a report of the examination of Dr. John Gray, Superintendent of the Lunatic Asylum at I'tica, N. Y., who was called by the prosecution, and a part of his cross-examination, as follows: — Question. " What is kleptomania? " Ansiccr. " A word used to express thieving. I don't believe in it. I don't be- lieve in any of the so-called moral insanities. I believe they are crimes." Question. " What do you mean by dypsomanla? " Answer. " Some call such a tendency a habit of drinking. I call it drunken- ness. I don't call it insanity." Question. " What do you mean by pyromania? " Answer. " Tlie burning of houses. I call it incendiarism. I call it a crime." In another of the papers it appeared that Dr. Gray testilled that he was medi- cal superintendent of the New York State Asylum. He did not believe in moral Insanity and had not for years. That term was intended to signify a pen'ersion of the moral character, leaving the intellectual character still sound. He Avas, according to the nevA'spaper, examined generally upon the subject of insanity, and in the course of his examination he expressed tlie opinion very decidedly that 1 20 W. Va. 745 (1882). ADDENDA OF LATE CASES. 873 I Cases too Recent to lloport. t Gultcau wns sane. In the Supreme Court this was held to be such error as to require a new trial. " Tlio main defence," said Johnson, P., "relied on l)y counsel for Robinson was Insanity. Tlie only defence relied on inCJuiteau's case was Insanity. The expert, Dr. Gray, was examined at leufjjtii on the subject of Insanity, and his opinions on that subject as reported in newspapers were read by the jury, and from what was read the jury mliiht well infer that tlie dis- tlnfjuished Dr. Gray believed that insanity was sometimes feigned. A^ain Dr. Gray ridiculed the idea of 'moral insanity,' declarinji^ that ' dyiisomania' was not ' insanity ' but •drunkenness.' It was clalnu'd in this case that Rol)inson was Insane from previous habits of intoxication; that he liad been .so lon;^ ad- dicted to the use of Intoxicatinij; li(|Uors ; that insanity was superinduced therei)y. The statement of Dr. Gray was calculated to .shake the belief of the jury, if any such they had, that by the long continued use of intoxicating lUiuors a man might become Insane. We have seen that a verdict was set aside because a jury got hold of a work on criminal law and read from it while they were trying a man for murder. It is certainly more dangerous for them to read from a newspaper what purports to be the testimony of an expert on the suljject of insanity when that is the very subject which they are considering. We think the reading of the uewsjjaper account of the expert testimony on the sul)ject of insanity in the Ouiteau Case was calculated to prejudice the case of the prisoner; and the court erred in refusing to set aside the verdict for this reason." i 1 This case of State v. nobinson would have been printed in this work in full, had it been reported in time. It did not, however, appear in the reports until this collection wns in plates. The following rulings on the subject of insanity in the case nf State T. Iiobin$on, are here noted, in connec- tion with other cases, reported too late to appear in this collection in their proper places. 1. Permanent insanity produced by habitual drunkenness is an excuse for crime. 2. Insanity when relied on as a defence must be proved to the satisfaction of the jury in order to entitle the prisoner to an actiuiltal. If upon the whole evidence the jury believe that the prisoner was insane when he com- mitted the deed, they willac with you in tliof^o rags." This ('(mvcrsation was heard by a person in nnotlier part vl the house who stated that immediately thereafter he heard a blow. The daughter seemed to have been nsli'ep when the mother returne(l. When sho awoke, the mother was sitting upon a chair near her bed. Appellant said to her, "Shut your mouth." The wifo an- swered, " I won't do it until you shut yours." He replied, "I'll make you." Upon saying this ho got the axe and struck tho wife a blow upon the head. The daughter tried to get the axe from him, but did not succeed. Ho struck the wifo with it again befcu'e tho daughter ran into the yard. I'ersons from another portion ot the house arrived at the door in a short time and saw him infliciiiig fidditional blows. He met them at tho door and told them that he had killed his wife Willi an axe, ami invited them to see for themselves. Afterwards he went into tho yard with one of his small children and tried to ((uiet it. He asked those present to cut liis head otf with the axe and bury him beside his wife. After a short time ho sent for n i)olii'eman, waited until he arrived, and told him that he wanted to die as soon as iiossible. On the following morning he told a )>oliceman at tho jail that he had killed his wife, and where the axe would be found. Under proper pleas, as required by sects. 1763 and 17G4, Uev. Stat. ISSl, the defence was based upon the alleged insanity of the apiiellant. Two physicians were called by appellant to testify upon this question. One of these testified that he could not say that appellant was of tinsonnd mind, but cnnld say that ho has but very little iiilcllecl. The other testilled that in his opinion ap pellant was of unsound mind. Appellant was a witness in his own behalf, and testi- fied that ho and his wife had been slaves; were married soon after they became free; that they h.-id no quarrels, and that no Jeal- ousy existed on tho part of either; that lie did not recollect distinctly what look place on the night his wife died ; Hint ho was not afraid to die, and thought he would go to a better world. The error assigned in tho court is the overruling of a motion for a new trial. The serious (luestion presented by tlu! record is the giving of the seventeenth instruction by the court. Tho portion of which complaint is made is as follows: — " The law preHumoa sanity in ali cases, and the burden of overthrowing the pre- sumplion is upon tho person who alleges insanity, but it is not necessary tluit such pr(!siimption should bo overthrown by a preponderance of evidence. And in this case if the evidence given by defendant has been sullleient to raise in tho minds of tho jury a reasonable doubt ot his sanity, then tho general (jucstion is presented to the jury whether or not the crime was committed by him while responsible for his acts, anil then upon the whole evidence in tho case, as introduced by both tho defendant and State, if a reasonable doubt exists us to defend- ant's sanity at the lime he committed the act, he is entitled to the benefit of the doubt." This instruction starts out with the propo- sition, substantially, that unless the defend- ant had, by allirmativc evidence, created a reasonable doubt as to his sanity at the time the crime charged was committed, that ques- tion was not before tlie jury for considera- tion. This we think was erroneous. One of the averments, anil one of the essential ele- ments in the oirenec of murder, is malice. Murder is said to be committed whiMi a per- son of sound mind and discretion unlawfully killcth any reasonable creature in being and under the king's peace, with malice afore- thought, either expressed or implied. 3 Coke Just. 47; i Rl. Com. VX>; 2 Chit. Cr. I.. 724. Malice is just jis essential to the olfence as is the killing, and the State is culled upon to If f ADDKNDA OF LATE CASES. H77 CUSCS too lU'Cfllt In I{(|iort. ns rhnrsjcd. Tlie tcstlinoiiy of tin- witnesses upon the siibjcrt of his lnsinilfy, iis prt'si'iiti'd In tlic ri'coril before us, Is of ii eliaracter 'o induce tlu' belief that it Is not II ciiso In which the proof Is evident or prfsui..,Jtlou greut. Therefore it Is deternilaed that he Is entitled to bail." prove tho one iih clearly an the other. It is imt iihvays posHlblo or iiccrshury to prove malice liy the Hitnie kind of evidence. It may oft(Mi be inferred froni the killing uitU surrounding eircnnnstancuH, in wliieli case it Is 8aid lu |je implied, but It Ih nevertheleHa proven. Tlicro can lie no criminal intent when the mental condition of the accuKcil is such that hu is Incapable of forming one. And hence it mnat appear from llie evidence, beyond a reasonable doubt, that at the time of tho commisMliin of the olfence <'liari;cd, tlio menial condiiion of ilic defenilant was such that he was uuiiublo of forming uu inlent. There is n legal i)rcBumption that all per- sons are sane. Itiaca.'^e like tliis llial pre- sumption operates as evidence in behalf of the Stale, and if tho other evidence on the jjart of the Slate docs not overthrow it, the .State may rest ui)on it as sulUcient. The de- fendant nmy overthrow tho evidence on tho part of tho State, or so weaken it by counter proof, that upon the whole evidence the issue may not be eHtablished in favor of the Stale, beyond a reasonable doubt. J'olk r. State, 19 Ind. 170; JJradlcyr. State, :;i Ind. ■i;)2; Snyder V. State, :!9 li.d. lO,-.; lVoi)le r. Uarbult, 17 Mich. 9; Slater. JJartlctt, 4a X. II. -iJl; oglc- treo V. Stale, 28 Ala. 701; Stale r. Crawford, 11 Kan. 32, In a case like this, when the plea of insanity is in, the question of the sanity or insanity of the accused is before the jury, and is to be passed upon by tliem, whether tho defendant has introduced evi- dence upon the subject or not. It is the duty of the jury to consider not only the evidence directed specially to tho quostion of the mental condition of the accused, but also all circumstances developed by tho evidence bearing upon tho question. In some cases the circumstances attending the killing, and the whole evidence on the part of the State, may be such as to completely overthrow the presumption of sanity without any evidence at all on tho part of the defendant. How much weight the conduct of the accused, and tho circumstances attending the killing, should have, as bearing upon the question of his sanity, we do not decide; but we think they were such that he had the right to have them considered by the jury, whether he Introduced any evidence or not. We cannot know what weight the Jury nmy have given to the tesliinony on the part of the defend- ant. I'nlcHS they regarduil il as siilllcient of itself to raise ii reasonable douhl of his sanity, they could not, under this instruc- tion, (consider that (luestion. Other instructions, |)erhaps, stated the law upon the Huliject correctly, but the seven- teenth was not \\ilhd:a\vn, and taken to- geiher they would teml to mislead rali.er than to enli^'hlen the jury. Any erroneous instruction in a criminal ease cannot be (cor- rected by another which slates tlio law Correctly, unless the erroneous instruction in a criminal case cannot be corrected by another which states tho law correctly, unless the erroneous instruction be lliereby l)lainly withdrawn from tho jury. Kingens v. Slate, 45 Ind. 01 ; Howard v. Stale, jo Ind. 1!M). If Instructions are inconsistont with each other, so that the jury aro loft in doubt or uncertainty as to the law applicable to the fads of the case, the judgment will be reversed. Kirland r. State, 4;i Iml. llti. As tho jml^'inent must bo reversed on aci'ount of eror in giving tho seventeenth iiisiruetion, we will not consider oilier (lues- tions discussed by ciiunsel. The judgment is reversed, with inslruciious to tho court be- low to grant a new trial. In State V. Jones, 17 N. W. Ucp. Oil, decided by the Supreme Court of Iowa in Keccmber, 188:i, the prisoner being indicted for murder in the first degree set up as a defence that he was insane. Two errors on the trial were noticed by llie Supreme Court and tho con- viction reversed. They are fully set out in tho opinion of A dajis, J., who said; "The couit gave an instruction in these words: " You have evidence of the conduct, lan- guage, and appearance of the accused during the time of the alleged killing, during which time it is alleged that he was insane. You are to consider all iho facts which you find to bo established by the evidence, and which relate to the conduct, language, and appear- ance of the defendant during that time ; and you should consider them for tho double purpose of testing the value of the opinions of such witnesses as have given opinions on iho question of the defendant's insanity, based upon such facts, and of determining 878 EVIDENCE AXD PRACTICE. Notes. §99. Appeal. — The trial on the main charge in the indictment will not be postponed because of an appeal to the Supreme Court from a preliminary find- ing of a jury against him on a plea of lusanity at the trial.^ ■V 1 People V. Moicc. 15 Cal. 329 (1860). whether the fact of insanity is established independent of such opinions." The de- fendant assigns the giving of this instruction as error. The objection urged is that the ]ury was told in substance that if they found the defendant insane (hey must so And from facts independent of opinions. We hardly think that the instruction, even when taken by itself, is susceptible of such construction. But the jury was expressly told, in another instruction, that they were to determine what V ci^ht and credit should be given to the opinions of witnesses upon the question of insanity. The jury, we think, could not have been misled in the way which the de- fendant claims. While we say this, we ought, perhaps, to say that we do not regard the question as to whether insanity was fully established by facts independent of opinions necessary to be considered. It is true that the facts, as the court said, were to be con- sidered for a double purpose. But, in defin- ing the double purpose, we should have been better pleased if the court had said that they might be considerrd for the purpose of test- ing the value of the opinions, and upon the question as to how far they tended to estab- lish the fact of insanity independent of the opinions. We make this criticism the more freely because we have reached the c nclu- sion that for errors to be pointed out here- after the case m-'sl, be reversed and remanded for p.iother trial. The instruc- tion alove set out in our opinion contains en or. The Jury was directed to consider the facts, relating ti) the conduct: language, and appearance oi the defendant duHn(7rt, language and appearance at other times were not to be excluded. Thera was no evidence what- ever as to the conduct, language and appear- ance of the defendant at the precise time when Roberts was killtiCt He was seen by others on tpat day, but the evidence of in- sanity pertains to other days. The evidence showed that he was insane in early life, and had not fully recovered when he came to Western Iowa. There was evidence tending to show that from the time of his first in- sanity "any trouble" (to use the language of the witness) "would throw him oif his balance." Four relatives of the defendant testified to his changed mental condition from the time his trouble with Roberts com- menced, and they gave their opinion tl.at he was insane. Two others, who do not appear to be relatives, testified to strange conduct of the defendant, and gave their opinion that he was insane. In addition to that, one physician testified that he made aa examination of him, and regarded him as insane. While the court did not say that the Jury should not consider the conduct, language and appearance of the defendant at times other than that of the alleged kill- ing, the tendency of the instruction was to confine, by implication, the attention of the Jury to that time. In this it appears to u.s there was error. The court gave an instruction in these words : "The burden is on the defendant to establish by a preponderance of evidence that at the tinie of the killing of Roberts* if he did kill him, he was in such a state of insanity <>.s not to be accountable for the act; a:id if the evidence goes no further than to .'.how that such a state of mind was possible or merely probable, it is not suffi- cient, but it must go further and overcome the presumption of sanity, and fairly satisfy you that he was not sane." The giving of this instruction is assigned as error. Ii> our opinion the instruction cannot be sustained. If it was made probable to the jury that the defendant was so far insane as not to be- accountable for his acts, we think that he should have been acquitted. Worcester defines probable as " having more evidence than the c itrary." Webster defines it as "having more evidence for than against." We think that it was siifflcient if the evi- dence of insanity preponderated. The idea of the court seems to have been that as the presumption of sanity counts for some- thing, it cannot be said to be overcome by a bare preponderance of evidenoe. There is a course of reat ; 40 Am. Dec. 481 (1843) ; Pigg v. Statfl, 43 Tex, 108 (1878) ; Webb v. State, 5 Ter. ( ipp.) 596. s '. . iie Law of Expert and Opinion Evidence Reduced to Rules. By John D. Lawson. St. Louis : F. H. Thomas & Co. 1883. CIIAPTEK VI. INSANITY AT TRIAL OR AFTER CONVICTION. INSANITY AT TRIAL- VERDICT OF JURY THAT nilSONEK IS UN^UiLE TO PLEAD — PRACTICE. CoM3IONWEALTJI V. BiJALEY. [1 Mass. 103.] In the Supreme Judicial Court of Massachusetts, October Term, 1804. Hon, FuAXciy Daxa, Chief Justice. " SiMKON Stkoxo, ^ " TlIKODOKK Si:iKiWICK, " Samukl Skwkll, r Judfjes. " George Tiiaciier, I On an Indictment for a Capital Crime if lite Jury And that tlic prisoner neglects to l)lead by the act of God, the court will not try him upon the indictment. The prisoner was indicted for the murder of his wife. On Tuesday, the third day of tliis torrn, Le was set to the bar and the indictment was read to him. Upon being asked the usual question whetli^ he was guilty or not guilty, the prisoner in a voice scarcely audible, said he did not know what to say ; thrt it appeared to him she was still alive ; it seemed to him he had seen aer since. The court told him he must say guilty or not guilty, upon w'.iicli he made nearly t,ie same answer as before. After a few moments had elaps'jd the court asked him whether he was 71010 disposed to plead, and told h.m he was charged with killing his wife. He again answei-ed as he hr.d before and added tliat he was guilty of what he had donu, but did not know what he had done. The court then informed him that he should have time till the next day to consider of the charge and remanded him to prison. On the next day he was again set to the ])ar, and arraigned on the indictment, when he said he was guilty of all he had done, he must confess ; but no direct or positive answer could be obtained from him. From the appearance and conduct of the prisoner at the several times he was arraigned, the court were inclined to believe tiiat he was in a 5^ (881) 882 INSAMTV AT TIJIAL OK AFTEK CONVIf TION, Freoniuii v. rt'Oplc. state ot mental derangement, and it also appearing that soon after the supposed murder of his wife, he had cut his own throat in such a man- ner as to endanger his life, a jur^' was immediately empanelled and swoi-n " well and truly to try between the Conmion wealth and the pris- oner at the bar whether he neglected or refused to plead to the indict- ment against him for murder, of his free will and malice, or whether he did so neglect by the act of God." The jury found that he did so neglect by the act of God. Whereupon the prisoner was remanded to jail. INSANITY AT TRIAL -TEST OF INSANITY — SUBSEQUENT INSANITY - evidence. Freeman v. People. [4 Deuio, 9; 47 Am. Dec. 21(;.] In the Supreme Court of New York^ January^ 1847. Hon. Greene C. Bronson, Chief Justice. " Samukl Beardsley, " Freeborn G. Ji >SLEY, ) h:\vETT, ) Justices. 1. A Person while be Continues Insane cannot lie tried or punished: aliter.iihe be capable of comprelieiidiug his position and of making his defence, though on some sub- jects his mind msiy be deranged. 2. Insanity at the Trial should be tried by a jury ; but other methods may be adopted by the court in Us discretion. 3. Test of Insanity . — The test of insanity, when alleged as a defence to an indictment, is whether, at the time of committing the act, llie prisoner was laboring under such me ital disease as not to know the nature and quality of the act he was doing, or that it was wrong. 4. On a Trial of Present Insanity the prisoner is not entitled to peremptory challenges. The right to peremptory challenges exists only as to the trial on the indictment and nut t)n the trial of preliminary or collateral issues. 5. Evidence of Subsequent Insanity. — On the trial of an indictment for murder the court refused to permit evidence to be given that the prisoner was insane at any time aficr the iiuding of the verdict on the preliminary issue of iuL-anity at the trial. Held, error. 6. Same. — Where the prisoner was tried for murder, four months after the crime wa.-^ committed, evidence tliat he was insane at the time of the trial was relevant on the question of his insanity four months before. Error to the Cayuga Court of Oyer and Terminer. I FREEMAN V. PEOPLE. 885 statement of L'ase. • the man- and pris- dict- jther lY— he be sub- ;edby ment, such hat il ngCB. id mil [?i-(he time Held, was u the 1 Indictment was found against Freeman for the murder of John G. Van Nest, on March 12, 1846. On June 1st of the same year, when tlie accused was about to be arraigned, liis counsel pleaded that he was then insane. The prisoner ^vas then remanded ; but on June 24th was brought into court, and a jury was impanelled to ascertain whether he was sufficiently sane " to be required to i)iead to, and to be trierJ. upon said indictment." The verdict of the jury was: "We find the pris- oner sufflcienty sane in mind and memory to distinguish between right and wrong." The verdict was excepted to, and the court was askei to instruct the jury to find whether the prisoner was sane or iiis'ips. This request was denied. On the sixth day of July the prisonoi- was ar- raigned. His counsel objected on the ground that the Acrdict was de- fective. The objection being overruled, he excepted. The defence was to the effect that the defendant was insane or idiotic. The proceedings upon the trial sufficiently appear in the opinion. Verdict of guilty was rendered and the prisoner sentenced to be executed. W. II. Seward, for the prisoner. L. Sherwood, District Attorney, and J. Van Buren, Attorney-Gen- eral, for the People. Beardsley, J. — The prisoner was tried at a Court of Oyer and Termi- ner, held for the County of Cayuga, and found guilty of the crime of mur- der, upon which verdict sentence of death was pronounced. In the course of the trials, preliminary and final, a multitude of exceptions were taken by the prisoner's counsel, which, with the record of the con- viction and sentence, have been brouglit into this court by writ of error. These excejjtions, or such of them as the counsel for the pris- oner supposed to be available, were argued at the last term of this court, and having since been examined and considered with care and delibera- tion, we are now prepared to dispose of them b}' rendering judgment on the case before us. When the prisoner was brought before the Court of Oj'er and Ter- miner, to be arraigned on the indictment, a plea that he was then insane was interposed by counsel on his behalf, which, being denied by the public prosecutor, a jury was impanelled to try the issue so joined. On the trial of this issue various objections were made and exceptions taken by the prisoner's counsel, and the first question to be decided is, whether these exceptions can be re-examined on a writ of error. The statute declares that " no insane person can be tried, sentenced to any punishment, or punished for any crime or offence, while he con- tinues in that state. "1 This, although new as a legislative enactment in 1 2 R. S., p. 607, sect. '.'. 884 INSANITY AT TIMAL OR AFTER CONVICTION, Freeman v. People. this State,^ was not introductory of a new rule, for it is in strict con- formity with the common law on the subject. "If a man," says Sir William Blackstone, " in his sound memory commits a capital otence, and before arraignment for it he becomes mad, he ought not to be ar- raigned for it, because he is not alile to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried : for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judg- ment should not be pronou' d ; and if, after judgment, he becomes of non-sane memory, execu .ion shall be stayed, for peradventurc, says the humanity of the English law, had the prisoner been of sound mem- ory, he might have alleged something in stay of judgment or execu- tion. Indeed," it is added, " in the bloody reign of Henry tlie Eighth a statute was made which enacted, that if a person, being compos mentis, should commit high treason, and after full into madness, he might be tried in his absence, and should suffer death, as if he were of perfect memory. But this savage and inhuman law was repealed ])y the statute of 1 and 2 Ph. «& M.- For, as is observed by Sir Edward Coke, ' the execution of an offender is, for example, lit poena adpaucos, metus ad omnes, perveneat ; but so it is not when a madman is executed, but should be a miserable spectacle, both against law and of extreme inhumanity and cruelty, and can be no example to others.' " ^ The true reason why an insane person should not be tried, is, that he is disabled by an act of God to make a just defence, if he have one. As is said in 4 Harg. State Trials:"* "There may be circumstances lying in his private knowledge, which would prove his innocency, of which he can have no advantage, becaus^"^ not known to the persons who shall take upon them his defence." The most distinguished writers on criminal jurisprudence o-oncur in these humane views, and all agree that no person, in a state of insanity, should ever be put upon his trial for an alleged crime, or be made to suffer the jiis. on Cr. 16 a p. 15. < 7 (1. & I*. 305, s. c. 1 Lewin'it C. C. 64. TItlAL OP PRKMKXT INSANITY. 889 Test in sncli Ciihos. known to the prisoner the intUctment and charge against lier, and to the court her plea and answer thereto. The witness exphiined to her by signs what slic was cliarged with, and she made signs which imported a denial of the charge ; whereupon the judge directed a plea of not guilty to be recorded. The witness by direction of the court, then stated to her that she was to be tried by a jury, and that she might object to such as she pleased ; but he testified that it was impossible to mjike her com- prehend a matter of that nature, although slie might understand subjects of daily occurrence which she had been in the habit of seeing. A jury was thereupon " impanelled and sworn to try whether she was sane or not," and proof was given of " her incapacity at that time to under- stand the mode of her trial, or to conduct her defence." The judgt; "told the jury, that if they were satisfied that the prisoner had not then, from the defect of her faculties, intelligence enough to understand the nature of the proceedings against her, they ought to find her not sane." The jury so found, and the prisoner was detained in c'ose custody as the statute directs. A similar case occurred in 1836, wliich was disposed of in the same way. Alueuson, B., said to the jury: "The question is whether the prisoner has sufficient lyiderstanding to comprehend the nature of this trial, so as to make a proper defence to the charge." ' Both these prisoners had been at all times deaf and dumb. In presump- tion of law, such persons are always idiots or madmen, altliough it may be shown that they have the use of understanding and arc cai>able of committing crimes, for which, in that event, they should be punished. - In the case of Queen v. Goode,'-^ which occurred in 1837, the pris- oner was brought into the Court of Queen's Bench and arraigned on an indictment for a misdemeanor. As he showed clear symptoms of insanity a jury was immediately impanelled to try whether he was then insane or not ; and upon evidence given, as well as upon his appearance in court, the jury found that ho was insane. The prisoner was thereupon de- tained in custody under the statute. In Lei/s Case,'* on the trial of a similar question, Hullock, B., said to the jury: "• If there be a doubt as to the prisoner's sanity, and the surgeon says that it is doubtful, you cannot say that he is in a fit state to be put upon his trial." The course at common law was much the same. In Frith's Case,^ which preceded the act of 39 and 40 Geo. III. to which reference has been made, the prisoner was arraigned for high treason, and a j -.worn to [ 1 Rex I'. Pritchard, 7 U. & P. 303. •I Russ. on Cr.6; Shelf, on Lunacy, 3. a 7 A. A E. 636. ■t 1 Lewin C. C. 239. ^' 22 How. St. Tr. 307, 318. ^ ▼ .0. ^S' IMAGE EVALUATION TEST TARGET (MT-3) .^' ^,V ^0 1.0 I.I 11.25 1^ m ■^ 12.2 - lis llilio .. .,. I 1.4 1.6 '^* '/ Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 873-4503 /. 890 INSAMTV AT TRIAL OIJ AFTEK CONVICTION. Krecnmii v. People. inquire whether he was of sound mind and understanding or not. Lord Kenton, Chief Justice of the Court of Kinjjf's bench, presided at the trial, assisted by one of the judges of the Court of Cdramon Pleas and one of tlie barons of the Court of Exchequer. It was observed by the court to the jury that the inquiry was not wliether the prisoner was in- sane wlien the alleged crime was committed, nor was it necessary to inquire at all what effect liis present state of mind might have l)een when that question came to be discussed ; but the humanity of the law of England had prescribed that no man should be called ui)ou to make his defence at a time when his mind was in such a situation that he appeared ricapable of doing so ; that however guilty he might be, the trial must Vi oostponed to a time when by collecting together his intellects, and having them entire, he should be able so to model his defence, if he !j? 1 one, as to ward off the punishment of the law f and it was for the jt.iy xo determine whether the prisoner was then in that state of mind.' With these lights before us, the construction of the statute which forbids the trial of any insane jierson, cannot be attended with much difficulty. A state of general insanity, the mental powers being wholly perverted or obliterated, would necessarily preclude a trial ; for a be- ing in that deplorable condition can make no defence whatever. Not so. however, where the disease is partial, and confined to some subject other than the imputed crime, and the contemplated trial. A person in this condition may be fully competent to understand his situation in respect to the alleged offence, and to conduct his defence with discre- tion and reason. Of this the jury must judge ; and they should be in- structed that if such is found to be his condition, it will be their duty to pronounce him sane. In the case at bar the court professed to fur- nish a single criterion of sanity ; that is, a capacity to distinguish be- tween right and wrong. This as a test of insanity is by no means invariably correct; for while a person has a very just perception of the moral qualities of most actions, he ma_y, at the same time, as to some one in particular, be absolutely insane, and consequently, as to this, be incapable of judging accurately between right and wrong. If the delu- sion extends to the alleged crime, or the contemplated trial, the party manifestly is not in a fit condition to make his defence, however sound his mind may in other respects be. Still the insanity of such a person being only partial, not general, a jury, under a charge like that given in this case, might find the prisoner sane ; for in most respects he would be capable of distinguishing between right and wrong. Had the in- 1 Shelf. 468. TEST OF TV ,NITV 891 Knowlet, e of Right ami Wrong. strnction been that the prisoner was to bo deemed sane if he had a knowledge of right and wrong in respect to the crime with which he stood charged, there would have been but little fear that the jury could be misled, for a person, who justly apprehends the nature of a charge made against him, can hardly bo supposed incapable of defending him- self in regard to it :n a rational way. At the same time, it would be well to impress distinctly on the minds of jurors, that they are to gauge the mental capacity of the prisoner in order to determine whether he is so far sane as to be competent in mind to make his defence if he has one, for unless his faculties are equal to that task he is not in a fit con- dition to be put on his trial. For the purpose of such a question the aw regards a person thus disabled by disease, as non compos mentis, and he should be pronounced unhesitatingly to be insane within the true intent and meaning of this statute. Where insanity is interposed as a defence to an indictment for an alleged crime, the inquiry is always brought down to the single question of a capacity to distinguish between right and wrong at the time when the act was done. In such cases, the jury should be instructed that " it must be clearly proved that at the time of committing the act, the party accused was laboring under such v. 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. The mode, of putting the latter part of the question to the jury on these occasions has generally been, whether the accused, at the time of doing the act, knew the difference between riglit and wrong; which mode, though rarely, if over, loading to aiiy mistake with tlie jury is not deemed so accurate when put generally and in the abstract, as when put with reference to the party's knowledge of right and wrong in respect to the very act with which he is charged." ' This is the rule laid down by all the English judges but one, in the late case of McXaghteri, while pending in the House of Lords. The case is reported in 10 Clark & Fin.'-^ and the opinion of the judges may be found in a note to the section of Greenleaf's Evidence referred to. In Beg. v. Oxford,'^ Lord Dknman, C. J., charged the jury in this manner: " The question is whether the prisoner was laboring under that species of insanity which satisfies you that he was quite unaware of the nature, character and consequences of the act he was committing, or in other words whether he was tuider the influence of a diseased mind, and was really uncon- scious, at the time he was committing the act, that it was a crime." 1 2 (ireenl. Ev., Bcot. 373. » 9 C. & P. 525. p. 200. 892 INSANITY AT TUIAL Oil AFTKU CONN KTIOX Freeiiiiin v. IVopJc. The insanit)' must be such as to deprive the party charged with crime of the use of reason in rcfjard to the act done. He may he deranged on other subjects, but if capable of distinguishinijc between right and wrong in the particular act done by him, he is justly liable to be punished as a criminal. Such is the undoubted rule of the common law on this subject. Par- tial insanity is not, b}^ that law, necessarily an excuse for crime, and can only be so wliere it deprives the party of his reason in regard to the act charged to be criminal. Nor in my judgment was the statute on this subject intended to abrogate or qualify the common-law rule. The words of the statute are, "■ No act done b}' a person in a state of insan- ity can be punished as an offence." ^ The clause is very comprehensive in its terms, and at first blush, might seem to exempt from punishment every act done by a person who is insane upon any subject whatever. This would, indeed, be a mighty ciiange in the law, as it would afford absolute impunity to every person in an insane state, although his disease migiit be contined to a single and isolated subject. If this is the meaning of the statute, jurors are no longer to inquire whether tlie party was insane *■* in respect to the very act with which he is charged," but whether he was insane in regard to any act or subject whatever; and if they find such to have been his condi- tion, render a verdict of not guilty. But the statute is not so under- stood by me. I interpret it as I should have done if the words had been " no act done by a person in a state of insanity, in respect to such act, can be punished as an offence." The act, in my judgment, must be an insane act, and not merely the act of an insane person. This was plainly the rule of law before the statute was passed, and although that took place more than sixteen years since, I am not aware that it has. at any time, l)een lield or inti- mated by any judicial tribunal, that the statute had abrogated or in any respect modified this principle of the common law. But to return to the trial of the prelimininary question in the present case. The jury found, not as the issue retiuired them to do, that the prisoner was or was not insane, but that he was "sufficiently sane in mind and memory to distinguisli between right and wrong." This ver- dict was defective ; it did not directly find anything, and certainly not the point in issue, Init evaded it by an argumentative finding. At the utmost the jury only made an approach towards the point to be deciiled but failed to reach it. Tliey should have been required to pass directly on the question of insanit}', and should not have been allowed to evade 1 2 R. S. 697, sect. 2. oriNIOXS 0\ INSANITV. 893 liislrictioiis as to Tiiiu', it by an f.rgumentativo verdict of any sf)rt. Such a finding as this would bo objectionable in a civil proceeding, and in a criminal case, should not be allowed.' The preliminaiy trial being closed, a plea of not guilty was entered for the ])risoner, and the court proceeded to the trial of the main issue. [Omitting another ruling us to <'hallcnge of jurors.] The verdict on the preliminary issue was icndered on the Cth of July. In the course of the trial, and shortly after the loth of that month, sev- eral medical witnesses were sworn and examined on the part of the pris- oner, with a view to estaldish hia insanity the preceding ]March, when the alleged murder was perpetrated. One of these witnesses, Dr. Van Epps, had known the prisoner from his childhood, and had visited and examined him with a view to ascertain his mental condition, both before and after the Gth of July. The others had never seen the prisoner until the loth of Julj' ; but they also had examined bim on and after that day in order to be prepared to express an opinion on the question of his sanity or insanity. That part of the bill of exceptions which states the questions made and exceptions taken, in regard to these witnesses, is perhaps liable to some misapi)rehension, and it nia3' be that I have not rightly understood what w: » intended to be decided by the court. I have read this part of the bill of exceptions repeatedly', with an anxious desire to collect its true meaning, and, although I would not affirm positively", that its mean- ing may not have been misapprehended, I still think no error has been fallen into in regard to the views of the court. As I undi-rstood the bill of exceptions, the cor.it held that it was comi)etent for these or other medical witnesses, to express an opinion upon the question of the insanity of the prisoner at the time of the alleged murder, but that such opinion must be formed upon facts and circumstances which occuiTed, or observations made before the ()th of July, when the verdict on the preliminary issue Avas rendered, and could in no degree rest upon any thing observed in the a|)pearanee, manner, or condition of the prisoner since that time ; and that the witnesses could not. with a view to fortif" the conclusion of insanity at the time of the homicide, be allowed to express an opinion that he was insane at the trial, or had been at any time since the (ith of July. >.'or was it even allowable to sa}' they had examined the prisoner, since that time, with a view to ascertain his men- tal condition. These restrictions were deemed proper l»}' the court, as I gather from the bill of exceptions, on the ground that the verdict on 1 lu the matter of Morgan, a lunatic, 7 I'aifrc, '23C. S94 INSANITY AT TUIAL OR AFTER CONVICTION. Fri'L-nian r. IVoplc. the preliminary issue hart conclusively estahlisiied for all purposes con- nected yrith this trial, the sanity of the prisoner at the time when that verdict was rendered. I cannot adopt the sujrgestion made on tiie argument that the 6th of July may have been taken as a reasonable tim' r. I.tiiicustur. Does the proof satisfy you that the clinngc in the man r^hows that he has becoino insane, or so far insane as to be incapable of properly caring for himself? And a single act of eccentricity or of irrational conduct is not evidence of insanity, but a group or series of unnatural acts may properly be considered as tending to prove insanity. Or were these acts the result of his giving way to a naturally violent temper and jealous disposition? Were these exhibitions the result of insanity, or mere neglect to properly rule his own spirit? Has he simulated insanity, or was he in fact insane at the time of his trial? The name of the disease is not important if the man is really crazy. It makes no difference wliether it is called paralysis of the insane, or paresis — or by some other name — if the fact of insanity exists. Doc- tors may disagree as to a diagnosis of disease, but we have nothing to do with mere names. While the biuden of j)roof may be said to be on the defendant, to satisfy you that he is in fact insane, yet, if the proof, when all consid- ered together, leaves a reasonable doubt upon your mind of this man's sanity, he should have the benefit of the doubt. That is to say, no man should be considered as a proper subject for criminal prosecution, of wliose sanity tliere is ground for a reasonable doubt. The question is not as stated by counsel for the prisoner, whether the defendant has had a fair trial, but wliether he was in such a mental con- dition as to be capable of appreciating the exigency and properly pre- paring for it. If he was sane he ought to have made proper preparations for his trial. If he was so insane as not to comprehend the peril he was in, or the crime he was charged to have committed, then he ought not to have been tried, and if he is still so insane, he ought not to be sen- tenced for the crime of which he has been found guilty by the jury. This case should be considered in the same light by you as if it had not been tried. Sui)posc his trial was not impending, and his counsel should come into court and suggest that his client was so far insane as that he ought not to be tried, and the court as a preliminary step, had ordered a jury to be impanelled to try the question of his sanity or insanity, the duty of that jury would be j)recisely what yours is now — that is, to inquire into and find whether the defendant was so far insane as to be incapable of realizing the peril in which he was placed, and taking such steps as a prudent man, under the circumstances, would have taken to prepare for his trial, and whether that insane condition still continues. If found insane by your verdict, the verdict now standing against him will be set aside. . INSAMTV \T TIMAI, 901 SttltL' I'. I'Utti-'ll, The jury found the prisoner to have been insane at the time uf his trial on the indictment. On calling the matter for trial, the question arose as to which side should open the case. The court ruled that counsel for the prisoner should open and close the case to the jury. INSANITY AT TRIAL — PUOCEDUKE — UIGIIT OF PRISONER TO WAIVE yUESili.'N. State v. Patten. [10 L.*. Auii. 'jyj.i In the Supreme Court of Louisiana, Ajml, 1855. Ilea. Thomas Smdi'i.i., Chief Justice. «• C. VoOUIIIKS, •' A. M.BlCU.VNAN, " A.N. Or.DKN, , " II.M.Sl'Ol-FOKD, j )■- Judges. 1. Whenever a Prisoner's Sanity at the time of tlio offence allcircd is in qucstioa, the rule Ui.it lie umy control or (liscliarj;t! his counsel at pleasure, hiiouM be so far re- laxed as to permit them to otfer evidence on these points, even against his will. 2. In a Criminal Case, when after the close of the tcstimon;^ in behalf of tho State, the counsel of tho accused uUcfjed the prisoner's insanity helore, at the time of, and since tho killing, and offer(>(l to introduce testimony in jiroof of the f.act, and thereupon the prisoner arose, and repudiated such defence, ancl dischargoil hi> counsel, ami the court gave tho case to the jury without further evidence or pleading's on behalf of the pris- oner: Ileld, that the court erred in allowing the prisoner, under the'circumetances, lo discharge his counsel, and erred in not allowing them to offer proofs on the question of insanity. Appeal from the First District Court of New Orleans. Robertson, J. Isaac E. Morse, Attorney-Go uertil for the State. Larue & Wfiittaker and A. Ilenncn, for defendant ond appellant. Spofford, J. — I'pon the trial of James Patten for the murder of Turnbull, the following bill of exceptions was taken by the prisoner's counsel : — " Be it remembered, that on the trial of this cause on the 20th day of March, 1854, after the evidence on the part of the State was closed, and when the counsel of the prisoner were proceeding to prove, by the evi- dence of the witnesses, the insanity of said prisoner at the time of the 902 INSANITY AT TRIAL OK AITKU CONVICTION. Slato «. ratten. killing, set forth in the indictment, and a long time before, and even since the said killing, the said prisoner arose and oljjected to, and re- pudiated the said defence, anU insisted npon discharging his counsel and submitting his case to the jury without any further evidence or ac- tion of his counsel in his defence ; his counsel opposed, and remonstrated against the prisoner's being permitted to do so, alleging that they were prepared to prove the defence by clear and irresistible testimony ; but the court overruled the objection of the said counsel, and permitted the prisoner to discharge Iiis said counsel, and refused to hear them further in his defence, and gave the cuoe to the jury without any further evi- dence or pleading on his behalf ; to all which opinion and ruling of said court, the defendant's said counsed excepts, and prays his exceptions may be signed," etc. [Signed] Jno. B. Robertson, Judge. There was a verdict of " guilty, without capital punishment," and after his former counsel had, in the quality of amicicurke, attempted to obtain a new trial and an arrest of judgment without success, the pris- oner was sentenced to hard labor for life in the penitentiary. From that judgment the present appeal has been taken. The sanity or insanity of the prisoner is a matter of fact ; the admissi- bility of evidence to establish his insanity, under the circumstances de- tailed in the bill of exceptions is a matter of law, and the only matter which the constitution authorizes the tribunal to decide. The case is so extraordinary in its circumstances that we are left without the aid of precedents. In support of the ruling of the district judge, it has been urged that every man is presumed to be sane until the contrary appears, and that a person on trial for an alleged offence has a constitutional right to dis- cbarge his counsel at any moment, to repudiate their action on the spot, and to be heard by himself ; hence the inference is deduced that the judge could not have admitted the evidence, against the protest of the prisoner, without reversing the ordinary presumption and presuming in- sanity. In criminal trials it is important to keep ever in mind the distinction between law and fact, between the functions of a judge and those of a jury. It was for the jury and the jury alone to determine whether there was insanity or not, after hearing the evidence and the instructions of the court as to the principles of law applicable to the case. By receiving the proffered evidence for what it might be worth, the judge would have decided no question of fact ; he would merely have told the jury : " The law permits you to hear and weigh this evidence ; whether it prove , PRESENT INSAMTV OF I'KISONEU. 903 Kifiht to t'onlrol liis Couiist?!. anything, it is for you to say." By rejecting it, he deprived the jury of some of the means of arrivingat an cnUghtoned conclusion ui)ou a vital point peculiarly within their province, and in effect, decided himself, and without the aid of all the evidence within his reach, that the prisoner was sane. It is idle to say that the legal presumption and the prisoner's own declaratiokis, appearance, and conduct on the trial established his sanity to the satisfaction of both judge and jury; for prcsurapti(jns may be overthrown, declarations may be unfounded, and conduct and appear- ances may be deceitful ; and tlie prisoner's counsel, sworn officers of the court, with their professional character at stake upon tlie loyalty of their conduct, alleged that they stood there prepared to prove by what they deemed clear and irresistible testimony that the accused was in- sane at the time of the homicide, long before, and ever since ; so that the sole inquiry now is, not whether they or the court were right as to the fact of sanity, upon which we can have no opinion, but whether they should have been allowed to put the testimony they had at hand before the jury, to be weighed with the counter-evidence. If the prisoner was insane at the time of tlie trial, as counsel offered to prove, he was incompetent to conduct his own defence unaided, to discharge his counsel, or to waive a riglit. Upon the supposition that the counsel were mistaken in regard to the weight of the evidence they wished to offer, as they may have been, still its introduction could do the prisoner no harm, nor could it estop him from any other defence he might choose to make on his own ac- count; neither could it prejudice the State, for it is to be presumed that the jury would have given the testimony its proper weight ; if , on the other hand, the counsel were not mistaken as to the legal effect of this evidence, the consequences of its rejection would be deplorable in- deed. The overruling necessity of the case seems to demand that, whenever a prisoner's soundness of mind and consequent accountability for his acts are in question, the ride that he may control or discharge his coun- sel at pleasure should be so far relaxed as to permit them to offer evi- dence on those points, even against his will. Considering, therefore, that it would be more in accordance with the sound legal principles and with the luimane spirit which pervades the criminal law, to allow the rejected testimony to go before the jury, the cause must be 3manded for that purpose. It was said in argument, on behalf of the State, that the alleged in- sanity was, at most, but a monomania upon another topic, which could not exempt the prisoner from responsibility for the homicide. 904 INSAXITV AT TUIAL OR At TKK CONVICTION. Bonds ?'. State. The judge will instruct the jury in regard to the principles of law which govern this subject, when all the facts shall have been heard. At present the discussion is })reniatnre. It is, therefore, ordered that the judgment of the District Court be reversed, the verdict of the jury set asiile, and the cause remanded for a new trial, according to law. INSANITY AFTER CONVICTION — WHERE JUDGE IS SATISFIED OF SANITY JURY UNNECESSARY. Bonds v. State. [Mart. & Ycrg. U:'.; 17 Am. Due. 71)5.] In the Supreme Court of Tennessee, 1827. Hon. RoBKRT Whytk, " JoHX Catiion, " Jacob Tix k, " IlEXR-i Ckabb, Judges. If a Prisoner after Conviction allege why sentence should not be pronounced that he ia a lunatic, but the judge u|vi)ii liis own insiiectiou is .siitisUed that the i)lea is false, lie may pronounce sentence without callin;,' a jury to try the issue. But aliter where the judge has a doubt or the case is oue of dilViculty. White, J., delivered the opinion of the court. Duncan Bonds was indicted in the Circuit Court of the County of Lincoln, at its September term, in the year 1824, for the murder of Felix Crunk. To the indictment, upon his arraignment, he pleaded not guilty, and put himself upon the country, and the attorney-general did the like. The jury found the prisoner guilt}' of the murder, wherewith he was charged by the bill of indictment, and the Circuit Court passed sen- tence of death upon him. Whereupon the defendant, by his counsel, entered two bills of exceptions ; which being signed and sealed by the court, and made a part of the record, a writ of error was taken to this court. The first bill of exceptions shows that when the prisoner was led t<> the bar, anti was asked by the coiwt if he had anything to say why s^on- tence of death should not be pronounced upon him, in answer thereto by his counsel, he tdleged that he was at that time a lunatic, and that IXSANITV AT TRIAL. 905 Miij'bc Deculoil l)y Court Witliout Jiirv sentence could not be pronouncccl upon him ; and offered to plead his lunacy in bar of the sentence, and also demanded of the court that a jury be called to try the issue of fact arising from that plea. Jiiit the court, upon inspection of the prisoner, and upon consideration of tlu case, because nuthiug was shown to render it probable that defendant was a lunatic, or to maiie that matter doubtful, refused to allow the prisoner his plea aforesaid, and denied him thn privilege of a jury at this time, to try the question of his sanity or insanity, and proceeded to pronounce the sentence of death accordingly, the prisoner having nothing further to allege to the contrary. Upon this bill of exceptions it is contended by the defendant's counsel, that there is error in this ; that the Circuit Court refused, upon the alle- gation by them made, of the lunacy of the prisoner, to receive a plea of lunacy in bar of deatk being pronounced at that time, and to em- panel a jury to try the truth of the pica; and it was urged that this course of proceeding, upon the allegation of lunacy, made by the counsel, on behalf of the prisoner, was not a matter of choice or dis- cretion with the court, but imperative, and that the allegation must be taken as true by the court, unless the fact was submitted for trial to a jury; and 1 Chitty C. L., is cited in support of this position, where it is laid down: " The judge may, if he pleases, swear a jury to inquire (X officio, whether the prisoner is really insane, or merely counterfeit ; and, if they find the former, he is bound to rei)rieve him till ._3 ensuing session." The meaning of this passage, giving it a reasonable con- struction, must be that if upon the question made, the judge is not sat- isfied, or has doubts, he may call in to his assistance the aid of a jury, and submit the matter to them. The law on this point is more fully stated in 1 Hawk. P. C.,i in the notes, where it is said: " Every per- son of the age of discretion is presumed of sane memory, until the contrary appears, which may be, either by the inspection of the court, - by evidence given to the jury, who are charged to try the indictment,'' or, by being a collateral issue, the fact may be i^leaded and replied to one term, and a venire awarded, returnable instauter in the nature of an inquest of ofllce ;-« and this method, in cases of importance, doubt, or diflaculty, the court will in prudence and discretion adopt. ^ From this it appears that inspection by the court is one of the legal modes of try- ing the fact of insanity ; and nothing appears in the record of this case ip. s. -1 HrIc, 33; Tr. per pais, 14; O. M. ITJI, No. 4. ■'H Da. Abr. 21; 1 Hale, 33, 36, 36; O. B. 1124, No. 222. * Inst. 4(> ; Koil. 13 ; 1 Tprm, 61. 6 1 Iliile, 35, 50, 56 ; 1 And. 154. 906 INSANITY AT TRIAL OR AFTER CONVICTION. Si)aiiii ?'. Stjitc. to show that the discretion ^ of the court, in adopting the mode pursued, was erroneously exercised. This court, therefore, is of opinion that there is no error in the matter of the first bill of exceptions. Judgment affirmed. INSANITY AFTER CONVICTION — EVIDENCE —CERTIORARI. Spann V. State. [47 Ga. 549.] In the Supreme Court of Georgia, January '"erm, 1873. Hon. Hiram Warner, Chief Justice. " H. K. McCay, ^ " W. W. Montgomery, f^^^ses- 1. Insanity after Conviction — Evidence. —In .in inquisition to infiuire into the sanity of a man convicted ol murilcr and suulenccd to be liaugcd, and whom it is alleged has, after conviction, become insane, evidence of his insanity at times before conviction is only admissible as explanatory of his acts since. 2. Whether Certiorari will Lie to review the proceedings before a jury called under the statute to in(|uire into the sanity of a prisoner alleged to have become insane since liis conviction, quare Enoch F. Spann, after his conviction of the crime of murder, and af- ter he had been sentenced to be hung, was alleged to have become in- sane. The sheriff, with the concurrence and assistance of George W. Davenport, Ordinary of Webster County, under the provisions of section 4572 of the Revised Code, summoned a jury of twelve men to look into such insanity. On the IGth and 17th days of Jidy, 1872, an investiga- tion of this issue was had before the said jury, the said Ordinary' presid- ing. Witnesses were introduced to prove Spann insane at different times before his conviction. The Ordinary excluded all such testimony, and counsel for the prisoner excepted. No evidence of insanity since the conviction was introduced. The prisoner, by his next friend, W. F. Spann, presented his petition for the writ of co/V/ocar^ to the Honorable Jamks M. Clark, "judge of the Superior Courts of the Soutliwestern Circuit, alleging the ruling aforesaid as error. The judge refused to sanction the petition upon the grounds that said ruling was right and proper, and that the writ of 1 p. 145. INSANITY AFTEK VKIJDICT 907 J'loiuliiig ami I'ractico. * certiorari does not- lie to a proceeding under section 4572 of the Revised Code. Whereupon tlie prisoner, by his next friend, excepted and now assigns said ruling as error upon each of the grounds aforesaid. Hawkins & Ouerry, W. A. Hawkins, and Phil Cook, for plaintiff in error. C. F. Crisp, Solicitor-General, and C. T. Goode, for the State. McCat, J. —By the laws of I^ngland (and, so far as they aro not altered liy statute or by the nature of our government, those laws would seem to be of force hero), one under sentence of death might be re- prieved, that is, the execution of the sentence might, for good reasons, be stayed for a time. Tliis is wholly distinct from the pardoning i)ower, which in England was entirely with the crown.' A reprieve is techni- cally with the judge. Even where it comes from the king, it cumes in the shape of a hint to the judge, who is the actor.^ Ordinarily, it is a discretionary power with the judge, and is exercised where he is aware of good reason why the prisoner should not be executed, and this action is only to delay the execution until the facts can be looked into.^ A stay of execution is also granted on satisfying the judge that the convict has become insane, or is quick with child.4 In the latter case the pris- oner might demand the stay as a matter of right, since as another life is in her womb, humanity to that demands the reprieve. But the slay for insanity seems to depend on the discretion of the judge at common law.^ He may call a jury if he pleases. The whole proceeding is merelv a stay of execution, and is based rather upon the public will and a sense of propriety, than on any right in the prisoner. By our statute, in the case of a convict becoming insane, it is the duty of the sheriff, with the concurrence of the Superior Court, to sum- mon a jury of twelve men to inquire into the insanity. No provision is made for the mode of trial ; nothing is said as to who shall preside. The jury are simply to make an inquisition. In the case of a pregnant woman, the sheriff, with the concurrence of the Inferior Coui-t,°shall select one or more physicians, who shall make inquisition. In either case, if it appear that the fact exists that the prisoner is insane, or quick with cliild, the sheriff shall suspend the execution, and report the inquisition and suspension to the judge, who directs the report to be en- tered on the minutes. The execution is thus suspended until the judge shall order otherwise, and this he must do whenever he has become satis- fied that the cause for stay has ceased. In the case of an insane person, 1 4 Bla. Com. 394. s 2 Hale, 412; 1 Chitty, 758. » 1 Chitty, 559. < 3 Inst Com. 395. '■ 1 Hale, 370, Co. 17, 18; 1 Hale, 368; Bla, 90« INSANITY AT TRIAL Oil AFTER rONVKTION, Spuiin V. Statu . he may call an inquisition or not at his pleasure. In the case of a pregnant woman the statute simply says when he is satisfied, " \Yhcn it shall ap- pear to him." 1 It is rather a perversion of terms to call an inquisition of this kind the act of a court, and to exercise in reference to it the writ of certiorari. The whole proceeding is rather an inquiry based on pub- lic propriety and decency, tlian a matter of right, and whilst I do not say that a certiorari will not lie at all, yet, for myself I greatly doubt if such was the intent of the law makers. But we see no grounds for cer- tiorari in this case. It is not pivtended that the verdict does not con- clude all inquiry as to the insanity of the prisoner at the time of the act done and at the trial. But it is said that anj' previous condition of in- sanity may be used to illustrate his present condition. We agree to this. If there was any evidence of present insanity, if it were in proof that since his conviction he presented by his acts, words, looks and conduct, evidences of insanit}', we see no objection to rn inquiry into his past life, to see if he had been insane before ; such r fact would tend to ex- l)lain his present acts. We have looked carefully into the evidence for some circumstances of present insanit}'. We see little or nothing, ex- cept the opinions of the phj'sicians, based on the history of his life and on certain notions they seem to have of moral insanit}'. We are not disposed to criticise these gentlemen's opinions. They doubtless know far more of this matter, as a medical question, than we do, and there is doubtless such a form of insanity as moral insanity. But a doctor inquires into the sanity of a man for one reason, and the public for anotlier. If he be diseased in body or mind, he is a subject for medical treatment, and the inquiry of the physician is to ascertain if the case calls for treatment. The public wishes to know if the man be so insane, as that society is called upon to let him go unpunislied if he has committed a crime. Under our law, a man v- r-. ..ishable if he knew riglit from wrong, and this, notwithstanding, • •. ,;« , come within some of the classifications of the medical profeijsi'.n •; Iiisane. We see nothing in this evidence to present a cast icre it is a viola- tion of a proper sense of propriety or a projjcr consideration for tliose on whom God has laid his afflicting hand, to allow the sentence of the law to take its course. Judgment affirmed. 1 See Revised Code, sects. 4572 and 4573. INSANITY AT TllIAL. 909 People V. Fiirrell. INSANITY AT TIME OF TRIAL — ISSUE — EVIDENCE — PLEA OF NOT GUILTY. People v. Farrell. [31 Cal. 57(1.] In the Supreme Court of California, January, 1867. Hon. John- Ci'RREY, Chief Justice. " Lorenzo Sawyku, " Ar'r.i:sTi;s L. Riiodks, " Oscar L. Siiaftku, " Silas W. Sanderson, Associate Justices 1. Insanity at Time of Trial — Practice.— Where it is suggested that a prisoner brought up for trial or judgineiit is insane, llie tiueistiou of his sanity must ho suhmittcd lo a jury. Tlie rule is the same where tlie prisoner lias been found to be insane, the trial postponed, and calleil "(gain at a subsequent term. 2. Ona Second Trial, til > >rnier verdict is admissible on the question of present insanity. 3. The Verdict of a Jury, called to examine the sanity of a i)erson at the trial, that ho is Insane, is conclusive that he was insane when it was rendered, and is awi\ Maxwkll, ■» " Rali'ii L. Bkkksuikk, i •^"^'^^•"'• 1. Plea of Not Guilty — Evidence of Insanity. — It is error to exclude from the juiy evidence of tlio prisoner's insanity at tlie time of the commission of the offence, on the plea of not guilty. 2. Insanity at Trial. — If there is reasonable ground to doubt the sanity of the accused at the time of the trial, and after a jury is impanelled, it is the duty of the court to sus- ORUJIEH V. STATE. 013 Syllabus uml Facts ?69. the jury ^e, on the I accused Irt to sus- pend the trial and to impanel another jury to imiulro into the (act ot hucIi Muiity. If 8uch jury Und tliu nccuncd to he inHiino iit the tiinu <>( tlie trial, it mIihII thi^n iiiiiuirc iih to biH Miiiiity at tlio liiiiu u( (;oiiiiiiitling tlic otluncc. If hucli jury llnd the a(',cu>ed tu he in - ■auo at the time tiio offence wnH committed, that (act is a good defence in bar of furl tier prottecution. If hucIi jury Had the accused siano at the time of tlio trial, then the trial In chief shall proceed. 3. DiBcharfre of Jury — " Once in Jeopardy"— If it is not suggested that the accused is in.sano at the- time of the trial, and the jury impanelled for tlu; trial of the cau-e be dis- charged, the prisoner is theiv'iy wronged by beiiiu preventetl frmn making his pmper defence before the jury, and is "ntitled upon his motion to be discharged from further prosecution of the indictment, Joseph Grubei- was indicted in the Circuit Court of Ohio County, on the 6th day of October, 1808, for grand larceny, and on the 8th day of the same month was arraigned, and pleaded not guilty. A jury was electeil, tried and sworn to well and truly try, and true deliverance make between the State and the prisoner. After the jury was sworn, it ai)pearing to the court that there was question as to the sanity of the accused at the time of the commission of the offence, the court ordered that one of the jurors be withdrawn and the remainder from rendering a verdict be discharged. A jury was thereupon impanelled to intiuire whether or not the prisoner was, on the 17th of August, 1868, the time of the commission of the al- leged offence, of sound mind, which jury found that the prisoner was, at the time aforesaid, of sound mind. The cause was continued until the next term of said court, when the prisoner by his counsel moved to be •lischarged from further prosecution of the indictment ; whicli motion the court overruled. The accused then offered to file a special plea set- ting up the fact of the discharge of the jury, under the facts above stated, in bar of further prosecution of the indictment against him. This plea the court refused to allow him to file, and he thereupon ex- cepted to the opinion of the court. Another jury was impanelled, and before it, and during the trial, the accused offered a witness who was a physician in good standing, to prove that the prisoner, at the time of the alleged offence was committed, was insane. This evidence the court refused to allow to go before the jury, and the accused again excepted. The jury found the prisoner guilty, and fixed his term of confinement in the penitentiary at four years, and on this verdict the court pro- nounced sentence. The defendant obtained a writ of error and supersedeas to this court. R. J. Russell, for tlie plaintiff in error. Attorney-General Melvin, for the State, who declined to argue the case. Maxwell, J. — The petitioner, Joseph Gruber, was indicted on the 6th day of October, 1868, for grand larceny, and on the 8th day of the 58 914 INSAMTV AT TniAI- 0!{ AITi:U roNVICTION. (JriiluT V. Sfttt*'. same month was arraigned on the said indictment, to whicli he pleaded not guilty. A jury was tlicn regularly scli'cti'd, tried and sworn to well and truly try and true deliverance make between the State and the prisoner. It appears from the record, that after the jury was sworn, it appear- ing to the court that there was (luestiou as to the sanity of the party at the time of the connnission of the offence alleged in the indictment, hy order of the court one of the jurors was withdrawn, and the remainder of the jury from rendering a verdict were discharged. A jury was thereupon immediately impanelled to inquire whether the said Gruber, the prisoner at the bar, was of sound mind or not on the 17th day of August, 18G8 ; which jury found that the i)risoner was sane on the 17th day of August, 18(')8, the day on which it is alleged in the indictment the larceny was committed. The cause was then continued until the next term of said court, at which term the defendant, Gruber, by his counsel, moved to be discharged from fui-ther prosecution on the indict- ment aforesaid ; but the court overruled the said motion, and refused to discharge the accused. The defendant then offered to file a special plea, setting up the fact of the discharge of the jury under the facts above stated, in bar of the further prosecution of the indictment against him ; but the court refused to allow the plea to be filed, and the prisoner excei)ted. Another jury Avas then impanelled, which found the prisoner guilty, and ascertained the term of his confinement in the penitentiary at four years, on which verdict the court pronounced sentence. On the trial of the case before the last named jury, the counsel for the defendant offered :i witness, who was a jjhysician in good standing, to prove that the prisoner was insane at the time the offence charged ascainst him was committed ; but the court refused to allow the evidence to go to the jury, and the prisoner again excepted to the opinion of the court. It is claimed here that the prisoner was entitled to be tried by the first jury impanelled in the case, and that the court had no power to dis- charge tliat jury from finding a verdict. It is unnecessary to examine the numerous and conflicting cases re- ported to ascertain under what circumstances a court may discharge a jury in a criminal case. The Code of Virginia* jn'ovides, that " if a juror, after he is sworn, be unable from any cause to perform his duty, the court may in its discretion, cause another qualified juror to be sworn in his place. And in any criminal case the court may discharge the jury when it appears they cannot agree in a verdict, or that there is 1 Edition of 1860, p. 83U, lect. 13. (leaded to well aid the appear- iiirty lit lont, l)v uaindor wy was Gruber, 11 day of the 17tli lictmcnt intil the r, by his je indict - cf U3cd to 1 special tlie facts it against I prisoner prisoner itentiary unsel for tanding. cliarged evidence on of the 3d by the er to dis- eases re- charge a ■lat "if a his duty, be sworn arge the there is INSAMTV AT TKIAL. 1»15 Wrongful l)lsr!;iirtr<' "f Jury. a manifest necessity for siicli u disciiarge." This Rontion contains what seems to have been tlie sum and substance of the divisions of the courts before its enactment. ' Tiio jury in the case unchM' consideration was not discharged bocausr: it could not ugrt'O, but bci-auso it upiJcart'd tu tlic court that tlicni was question as to tlic sanity of tlie piirty at the time of the conimi.ssioii of the offence alleg(!d in the indictment. Tlie (luestion then is, v.ns there a manifest necessity for the discharge of the jury according to the mean- ing of the law? What is a case of manifest necessity for the discharge of a jury depends njton the circumsttmces of the case in which the ques- tion is raised. If, for instanct', it had been bein establishe(l in the case under consideration that the accused, after the jury was impanelleil, had been discovered to be insane at the time of tlie trial, it would have been a case of necessity, and mercy to the accp.;ied, to have disehaiged the jury. But it wa3 not even suggested that ho was insane at the time of the trial. If there had been reasonable ground t(j doubt the sanit}' of the accused at the time of the trial after the juiy was impanelled to try the indictment agiiinst him, it would have been the duty of the court merely to have suspended the trial and have impanelled another jury to inquire into the fact as to such sanity. And if it had been found that the accused was insane at the time of the trial, the jury impanelled on the question of the sanity of the accused .should have incpiiivd whether or not he was insane at the time of the alleged offence. But if the jury had found the accused to be sane at the time of thi ir verdict, then they could make no further inquiry, and the trial in chief should have pro- ceeded. The jury in chief was discharged because it appeared to the court that there was question as to the sanity of the party at the time of the commission of the offence alleged in the indict. .lent, and to try this question, the second jurj' was impanelled. If the accused was insane at the time the sup[)osed offence was committed, the fact was a good de- fence in bar of the prosecution to excuse from liability to punishment upon the plea of not guilty. It seems to rae, therefore, that there was no manifest necessity foi the dischaige of tlie juiy, but, on the other hand, that there was a manifest wrong to the accused in discliarging it, because he was thercliy prevented from making a defence before the jury, wiiicli he was entitled to make. Because of the discharge of the first jury, contrary to la'?/, it seems to me the accused could not be tried before another jury, but was en- titled to his discharge. 1 U. S. V. Perez; 9 Wheat., f)?.); Fell's Case, « Leigh, 613 ; William.-,' Case, 2 Gratt. 507. 916 INSANITY AT TRIAL OK AFTEK CONVICTION. Notes. The accused being entitled to his discharge, moved the court to dis- charge him, and upon tlic motion being overruled by the court offered to file a special plea, setting up the improper discharge of the first jury. This was a case in which the accused should have been discharged on his motion, because the recoi'd shows a continuous proceeding against him on but one indictment, and shows with certainty that the Joseph Gruber who made the motion to be discharged, is the same person who was indicted, arraigned, and who pleaded not guilty to the indictir.ont, and the same person whom the jury was impanelled to try. If these things did not all appear from the record, it would have been necessary to have set them up by a special plea. In this view of the case the question made on the exclusion of the evidence to prove insanity, offered to the jury which convicted the ac- cused, is in no wise material to the case ; but as it is made in the as- signment of error, it is, perhaps, necessary to decide it. If the accused was in fact insane at the time the supposed ofifence was c mmitted by hitn, he is guilty of no offence, and upon the fact appear- ing to the jury, it would have been its duty to i\ave found him not guilty. It was, therefore, error in the court to exclude from the jury the evidence offered to prove the prisoner's insanity. I am of the opinion that the judgment complained of will have to be reversed ; and the court proceeding to enter such judgment as the court below ought to have entered, must discharge the accused upon his said motion, from all further proceedings under the indictment. Berkshire, J., concurred. Judgment reversed^ and the prisoner discharged. NOTES. § 101. Insane Person Cannot Be Tried. — Insanity arising after tho ofEcncc was conunittL'd l)ut before trial is no defence to the indictment. ' But an insane person cannot be tried; "^ and, therefore, if from the appearance or conduct of a prisoner when called on to plead, it appears that he is Insane, the court should institute a i)reliminary inquu'y to ascertain his sanity. ' 1 Jones v. State, 13 Ala. 153 (1*18). = Ley's Case, 1 Lewin, 2;i7 (1828). 3 Jones 1'. State, 13 Ala. 153 (1848) ; People D. ran-ell, 31 Cal. 57G (1807); Com. v. Bra- ley, 1 Mass. 103] (1804); Freeman v. People, 4 Uenio, !t; People r. Kleini, 1 Eilm.Sel.Cas. 13 (1845). INSAXE PEUSOX CANXOT BE TKIEI). 917 Practici'. ^ No plea of present insanity is required. If at any time during the proceed- ings in a eriniinal trial, a doubt arises as to tlio sanity of tliu prisoner, it is tiie duty of tiio court of its own motion to suspend furtlier proceedings in tne case until tlie question of sanity has been determined. Tlie prisoner's counsel can- not waive sucli an inquiry, nor on tlie other hand can he conii)el the court tu enter upon it when no ground for such doubt exists. ' Generally, liowever, this is left to the discretion of the trial court, anle doubt arises as to his sanity, the court shall order a jury to be empanelled to inquire thereof. The proceedings are suspended until this question is determined and if the verdict is in favor of his sanity, the trial proceeds; but if otlierwise, the proceedings are further suspended until he becomes sane. <' Under this statute," say the Su- preme Court, in State v. Arnold,^ "the court is to inquire into the i)risoner's mental condition at the time he appears for arraignment or on any other occasion when required, and not at the time of the commission of tlie offence. In determining whether a reasonable doubt exists as to his sanity, before empanelling the jury, the judge is not conllned alone to the case made for the prisoner by his counsel, nor ' suggestions to that effect made by his relations or other persons for him, but may in his discretion investigate the whole matter thoroughly, taki' into consideration all tlie circumstances, obtain all the liglit reasonably attaina- ble, and from all the facts thu ; developed, determine whether the necessity ex- ists for the inquiry. The statute was enacted out of abundant and tender regard for the rights of the accused, but the inquiry should not be allowed, M from all the circumstances there is no reason to doubt his sanity. If such doubt does arise the inquiry should be promptly and thoroughly made. And this because it is the dictate of humanity and the command of the law. " In this case the testimony as to the sanity of the accused is all before us, and after examining it carefully, we are brought to the conclusion that there was no error in refusing the proposed investigation. There is some testimony tending to show that prior to the alleged larceny, he acted strangely; and that since, his manner occasionall}' indicatetl mental imbecility. There is none, however, showing insanity at the time he appeared for trial. This was some five months after the commission of the offence. The testimony not only did not show in- 1 People V. Ah Ying, 42 Cal. 18 (1871). 3 Jones V. State n Ala. 15:! (is.»8). 3 Bonds V. State, Mart. & V. 143 (1827). < Guagando v. State, 41 Tex. fi2(! (1874). ' 12 Iowa, 479 (1801). 918 INSANITY AT TUIA.. OU AFTER CONVICTION. Noti's. sanity, but we can see nothing tending to show it at that time. The legal prc- numptiou is that ho was sane. Tliis presumption slioukl be rebutted, and tlie reasonable doubt created by tlie i)risoner, or from a consideration of the testi- mony and circumstances presented. To do this, evidence of mere incapacity to fully understand and comprehend all his legal rights; and to niaice known in the most succinct and intelligent manner to his counsel all the facts material to his defence is not sufhcient. A doubt must be raised whether at the time there is such mental impairment citlier under the form of idiocy, intellectual or moral imbecility, or the lilie, as to render it prolmble that the prisoner cannot, as far as may devolve upon him, have a full, fair, and impartial trial. If insanity existed at the time of tlie commission of tlic offence, of course, it presents a different question, availing as it would the prisoner on his linal trial. So if his mental condition has been such in the interim as to prevent the preparation of his de- fence, it might be a good ground for a continuance. But if there is no room for a reasonable doubt on the subject at the time he is arraigned for trial, or on any other occasion when he is recpiired to appear, he cannot demand the investi- gation contemplated by the statute." In People v. Hcott,^ the prisoner pleaded guilty to an indictment for incest. His present Insanity being alleged, a jury was impanelled which found him insane, and he was committed to an asylum. On his discharge, his reason being restored, his case was brought before the court and he was sentenced to ten years' imprisonment. Before judgment he asked to withdraw the plea of "guilty " and plead "not guilty," supporting his application with aiTldavits that he had been insane for many years. But this the court refused. On appeal it was held that as the evidence raised a doubt of his sanity at the time the plea was inter- posed, the motion should have been granted. Where tlie prisoner at the trial objected to be defended by counsel, but after- wards assented to allowing him, it was held no ground of error that the judge permitted the counsel to conduct the case.* On a trial of present insanity the jury may form tlieir judgment that he is in- sane, on his appearance before them, witliout calling witnesses.' In England a grand jury has no right to ignore a bill on the ground of in- sanity; for this would result in preventing the continement of the prisoner under the statute.* So one must not be tried when he is so intoxicated as not to appreciate his peril or to act advisedly with his counsel.^ §102. Deaf and Dumb Person. — A prisoner though deaf and dumb may he tried if he can be connnunicated with by signs.* Where it is alleged tliat pris- oner is a deaf mute and cannot understand tlie trial, the court will empanel a jury to try the truth of this suggestion, and if found to be true will decline to try him.' In Dyson^s Casc,^ the prisoner, a girl deaf and dumb, was indicted for the murder of her infant child. On being called on to plead, an Interpreter was unable to 1 59C.ll. 341 (1881). s Ueg. r. Southey, 4 F. & F. SW (1805) . 3 Queen v. CJoode, 7 Ad. & El. 53G (18:i7). * I{. V. Hodges, 8 C. & P. 105 (18;iS). ' Taffe V. State, 23 Ark. 34 (1861). ' R. V. Jones, 1 Leach, 120(1773) ; R. v. Steel, I Leach, 507 (1785) ; R. r. Wliitlleld, 3 C. &K. 121 (18i-)0). '■ State r. Harris, 8 Jones (L.) 137, (1860). " 7 C. & P. 305 INSANITT AFTER VERDICT. 919 Coutiiicmuut of liisiiiic rrisouors. make her uuderstand. Tarkk, J., ompancUcd a jury to try whether she was insane or not, and witnesses testified tliat she liad not sutlicient reason to under- stand wliat was goinf; on. Pakkk, J., said to the jury : " You are cnipanelied to try whether tlie prisoner is sane, not wliether slie is at tliis moment la))oring under lunaey, l)at whetlier slie has at this time sullicicnt reason to understand tlie nature of tliis proceeding, so as to be able to conduct her defence with dis- cretion." Tlie jury found tliat she was insane. § 103. Insanity after Verdict or Judgment. — If the prisoner, after conviction of a capital felony, suggests insanity, tlie judgnventmust bo suspended until that fact can be tried by a jury; if after judgment, execution must be likewise stayed.! In an inquisition to inquire into the sanity of a man convicted of murder and sentenced to be hanged, Init avIio it is claimed has since become insane, evidence of his insanity before conviction is inadmissible, except where such insane acts are explanatory of insane acts since conviction.'' § 104. Confinement of Insane Criminals.- -In England, when a prisoner stands mute or exhibits signs of insanity at the trial, a jury is empanelled to try the question, and if they lind him insane, he is thereupon ordered to be de- tained in custody during the Queen's pleasure.* In Minnesota it is required by statute that if a prisoner is acquitted on the ground of insanity the jury shall so state in their verdict, and the court may then order the prisoner to be com- mitted as a dangerous person.* In Commonwealth v. Merriam,^ where one who had been committed to the house of correction as a person dangerous to go at large was Ijrought from there, and tried and acquitted of a charge of murder under a plea of insanity, he was re- manded by the court to the place whence he came. 1 State V. Vanii, 84 N. V. 722 (1881) ; State V. Brinyea, 5 Ala. 241 (1843). 2 Spann v. State, 47 Ga. .'549 (1873). 3 Keg. V. Davie8, 6 Cox. 326; 3 C. & K. 328 (1853). As to the practice under the Eng- lish statute in this respect, see R. v. Dwerryhouse, 2 Cox, 446 (1847) ; R. v. Israel, 2 Cox, 263 (1847) ; R. v. Pritchard, 7 C. & P. 303 (1830). * Bonfanti v. State, 2 Minn. 123 (1858). As to the constitutionality of a statute pro- viding for the conflnemeut of insane crim- inals. Underwood v. People, 32 Mich. 1, (1875). s 7 Mass. 168 (1810) INDEX. ACTS AND CONDUCT. In considering tlie question of tlie sanity of a prisoner, tlie jury may prop- erly be directed to consider his appearance, conduct, and language prior to tlie time of the commission of the alleged crime. State v. Mewherter (la.), P- 102. G., being indicted for murder, pleads insanity. The opinion of one who was in the army with G. as to whether G. when in oattle was unduly excited, is irrelevant. People v. Garbutt (Mich.), p. 403. In a crl nal prosecution for the crime of murder, the witnesses for the accused may, under the plea of insanity, be permitted to give to the jury the acts, declarations, conversations and exclamations they saw, had with, and heard the accused make at any time, shortly before, at the time of, or after the killing. The objections to such testimony go to its effect. State v. Hays, (La.), p. 7'J7. Where insanity is relied on as a defence to crime, evidence of acts and conduct of the prisoner subsequent to its commission is not admissible to prove his condition at the time of the offence, unless they arc so connected with evidence of a previous state of mental disorder as to strengthen the presumption of its continuance at the time of the crime, or when they indicate permanent unsoundness, which must necessarily relate back. Com. v. Fomeroy (Mass.), p. 799. The plaintiff in error was tried and convicted for falsely swearing to his qualiflcation as bail in a criminal case. Upon the trial tlie prisoner claimed that he was at the time of the commission of the offence, some six months previous to the trial, insane from delirium tremens. The judge charged the jury that, in deciding upon his insanity, they might take into account his physique and apparent age, and consider his con- duct upon the trial. There was no evidence tending to show that his physical appearance, six months after xhe disease, would be affected thereby. Held, that the charge was erroneous. JBowden v. People (N. Y.), p. 807. On an indictment for murder, evidence that the prisoner Avas or was not generally drunk when out of work, whether he did not move more quickly when drunk than sober, is not relevant where there is no proof of actual intoxication, or that he was out of work at the time. Warren V. Com. (Pa.), p. 809. Evidence of acts and conduct at other times, pp. 859, 377. Specific acts of insanity need not be shown, p. SOo. 921 922 IXDKX. ADULTERY. On an indictment for murder, evidence tl'at the prisoner's wife had been In the hiibit of comniitliuK adultery with the deceased is inadmissible. Nothing but finding a man in the very act can mitigate the homicide from murder to manslaughter. State v. John (N. C), p. 787. S. was indicted for tlie murder of his wife. On the trial he offered evi- dence that she had for a long time been having an adulterous inter- course with one B. and others, of which S. had for a long time been cognizant. Held, inadmissible, both on the question of heat of passion and of insanity. Saiojer v. State (Ind.), p. 790. When evidence of wife's adultery relevant, p. 857. ALABAMA. Test in, 2.'U. Moral insanity disapproved, p. 309 Burden on prisoner, 514. ANGER. And wrath is not insanity, p. 14G. Frenzy arising solely from the passion of anger and jealously, no matter how furious, is not insanity which will excuse a crime. Quetig v. State (Ind.),p. 45G Where a homicide is done with premeditation and deliberation, evidence that the prisoner had an irascible tomper or was subject to tits of pas- sion for slight causes is incompetent. Sindram v. People (N. Y.), p. 802, ANOTHER CRIME. As a general rule, on the trial of one crime, proof that the prisoner had com- mitted another is not permissible. But where the defence is insanity, and the coolness and unconcern of the prisoner at the time are relied on as evidence of it, it is competent to show that the prisoner had in former years been a smuggler, as tending to rebut the impression that his deportment was the result of insanity. Hopps \. People (Ill.)> pp. 444, 8C5. APPEAL. Trial on main charge will not be postponed to wait result of appeal on question of insanity at trial, p. 878. APPEARANCE AT TRLVL. See Acts axd Conduct. ARKANSAS. Burden of proof on prisoner, p. 514. AUTREFOIS ACQUIT. See "Once in Jeopardy." BAIL. Refusal of, defence being insanity, p. 8ti. INDEX. 923 ie had been in inadmissible. ! the liomicide 787. le offered cvi- uiteroiis inlcr- ong time been Leat of passion sly, no matter Guetig v. State ition, evidence ; to flts of pas- ple CN. Y.), p. loner had corn- ice is insanity, time are relied )risoner had in npression that . People (lU.), t of appeal on BAEBARITY OF ACT. See PuKSUMPTioN. BEGIN AND RIPPLY, RIGHT TO. See Open and Close, Right to; Trial, Insanity at. BOOKS OF SCIENCE. • See Experts. BURDEN OF PROOF. Defence of insanity must be proved to the reasonable satisfaction of the jury. State v. Erb (Mo.), 1>- H- Insanity as a defence to crime must be proved to the satisfaction of the jury; it is not necessary that the jury .'(hall be satisfied of tlie insanity of the prisoner beyond a reasonable doubt. Dejarnette v. Com. (Va.), p. 18. The burden of proving sanity does not fall upon the prosecution. The presumption is that every one is sane, and the prisoner must overcome this presumption by satisfactory evidence. If, however, there is rea- sonable doubt as to the prisoner's sanity, arising upon the evidence in the case, and upon nothing else, the jury should give the accused the benefit of that doubt and acquit him. Walker v. People (N. Y.), p. 40. Where the recorder's charge accompanied the foregoing propositions -with the instruction that the insanity must be clearly proveit; held, that the charge was correct. Id., p. 40. If no evidence is given on the subject of the mental condition of the accused, the presumption is that he is sane. Where evidence on the subject is offered by the defence the prosecutor may produce answering testi- mony, but he must satisfy the jury on tlie whole evidence that tlie prisoner was responsible; for the affirmative of the issue tendered by the indictment remains with the prosecution to the end of the trial. Id., p. 49. The defence of insanity should not be sustained on vague and shadowy testimony, or mere conjecture. There should be clear and substantial evidence of insanity; but if there is, upon the whole evidence in the case, any reasonable doubt, the accused is entitled to the benefit of that doubt, and to an acquittal. Id. The law does not presume insanity arose from any particular cause ; and if the government asserts that the prisoner was guilty, though insane, because his insanity was drunken madness, this allegation must be proved, U. S. v. McQlue (U. S.), p. 55. Upon an indictment for murder, where the defence is insanity, the jury should acquit if they entertain a reasonable doubt as to the soundness of mind of the prisoner at the time of the homicide, although they believe he had judgment and reason sufficient to discriminate between right and wrong in the ordinary affairs of life. He is as much entitled to" the benefit of a doubt on that as any other material fact in the case. Stevens v. State (Ind.), p. 87. 924 INDKX. BURDEN OF VROOF — Continued. Where there is a reasonable doubt of the prisoner's insanity adduced by liim, the burden of proving his sanity falls on the State. Bradley v. State (Ind.), p. 115. Evidence tcndina; to show the prisoner's insanity does not throw upon the prosecution tlie burden of overbalancing it, if it does not raise a reasonable doubt. People v. Finley (Mich."), p. 140. The burden of proving insanity to the satisfaction of tlie jury is ou the prisoner. Lynch v. Cor.i. (Pa.), p. 14(1. The jurors ought to be told that every man is presumed to be sane, and to possess a Eufflcient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence ou the ground of insanity, it must be clearly proved that at the time of committing the act the party accused was laboring 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 as not to know that what he was doing was wrong. McNaghten^s Case (Eng.), p. 150. A jury may find a person insane where the preponderance of the evidence is in favor of his insanity. Com. v. Rogers (Mass.), p. 158. Where the defence of insanity is set up as an excuse for crime, the burden of proving it is on the person alleging it. The presumption is that he is sane. U. S. v. Guitcau (U. S.), p. 103. The defence of insanity must be made out to the satisfaction of the jury. State V. Gut (Minn.), p. 189. The prisoner must prove the plea of insanity beyond a reasonable doubt; otherwise the presumption of sanity will remain in full force. State v. Pratt (Del.), p. 31' 7. The burden of proof of insanity is on the accused. State v. Spencer (N. J.), p. 335. Insanity, when set up as a defence to a crime, must be sho^vn by clear and convincing proof; but if the jury entertain a reasonable doubt of the prisoner's sanity, they should acquit. State v. Marler (Ala.), p. 34G. The defence of insanity must be proved beyond a reasonable doubt. State V. Brinyea (Ala.), p. 340. The burden of proof is on the prisoner to show insanity, and a reasonable doubt of sanity will not authorize an acquittal. Bosioell v. State (Ala.), p- 352. The defence of insanity must be established by proof satisfactory to the jury. State v. Fetter (la.), p. 371. To authorize an acquittal ou the ground of insanity, the jury must be sat- isfied that the accused was insane. Graham v. Com. (Ky.), p. 373. The legal presumption of sanity must be rebutted by satisfactory evidence. A doubt of sanity is not sufficient to justify an acquittal; for the pre- sumption of sanity must be overcome by a preponderance of evidence. Kriel v. Com. (Ky.), p. 373. To establish the defence of insanity, the burden is on the defendant to prove by a preponderance of evidence that at the time of committing B f INDEX. 925 BURDEN OF PROOF — Continued. the act 111! was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act lie was doini;; or, if he did, that he did not know he was doing what was wrong. State v. Lawrence (Me.)> ?• 158(1. Partial insanity, if not to the extent above indicated, will not excuse a criminal act. Id. The prisoner pleading insanity as a defence to crime must establish it to the satisfaction of the jury. Baldwin v. State (Mo.), P- 31)5. The burden of proof Is on the defendant to ^l)0w that he was insane at the time of the commission of tiie crime cliarged. State v. McCoy fMo.), p. 408. The burden of establishing the insanity of the prisoner Is on the defence. But it is not necessary that it be provi'd beyond a reasonable doubt ; it Is sufficient if the jury are satisfied by the weight aiid preponderance of the evidence that the accused was insane at the time of the commis- sion of the act. State v. Klinger (Mo.), p. 410. The burden of proof being on the prisoner to prove his insanity, an instruc- tion that to overthrow the presumption of sanity he must satisfy the jury by "the weight and preponderance" of the testimony that he was insane at the time he committed the crime, is not error. State v. Smith (Mo.), p. 415. If the jury have a reasonable doubt of the commission of the crime, on the whole evidence, they should acquit. Id. The burden of proving insanity to the satisfaction of the jury rests upon the defence; l)ut it is not necessary that insanity should be established beyond a reasonable doubt. An instruction, therefore, whu;h requires a clear preponderance of the evidence to establish insanity is erroneous. State v. Hundley (Mo.), p. 418. The burden of proving insanity as a defence to a criminal charge rests on the prisoner. To establish such a defence, evidence is necessary, such as will reasonably satisfy the jury. State v. Bedemeier (Mo.), p. 424. The burden of proving tlie defence of insanity to the satisfaction of the jury rests on the prisoner. Loeffner v. State (0.), p. 432. On the trial of an indictment for murder, where the defence Is that the prisoner was insane at the time he committed the act, it is not sulliclent to raise a doubt in the minds of the jury as to Avhether the prisoner was sane, but the evidence must be such as satisfies the minds of the jury that he was in fact insane. Ortwein v. Com. (Pa.), p. 4;i8. It is error to instruct the jury that insanity must be proved by "clearly preponderating" evidence. It is only necessary that the evidence sup- porting it sliould <' fairly preponderate." Coyle v. Com. (Pa.), p. 441. A prisoner charged with crime, who sets up insanity as a defence, does not thereby assume the burden of proof of such insanity. Such a defence is only a denial of one of the essential allegations to be proved by the State; and therefore, if, on the whole evidence, the jury entertain a reasonable doubt of his sanity, they must acquit. Foster's Case, 23 111. 21)3, overruled. TInpm v. Ppnnio rill.), p. 444. 92(5 INDEX. BURDEN OF VROOF — Continncd. G. was indicted for murder, th« defence belnj? insanity. Tlie court in- structed tlio jury tliiit, " tlio liiw presumes tliat ii man Is of Bound mind until there is some ovideuoe to tlie contrary. * • * An accused Is entitled to an acquittal if tlw! evidence engenders a reasonablo doul)1 as to tlio mental capacity at tlio time tlie alleged offence is charged to have been committed. Evidence tending to reliut the presumption of sanity need not, to entitle the defe dant to an acquittal, preponderate In favor of tlie accused. It will be sufficient If It raises In your minds a reasonable doubt." Held, coiTect. Ouetig v. State (Ind.;, p. 455. The defendant under a plea of insanity is not required to establish its truth by a preponderance of the evidence; but if, upon tho whole of the evidence Introduced on the trial, together with all the legal pre- sumptions applicable to the case under the evidence, there Is a reason- able doubt whether he is sane or insaiK;, he inilst be acquitted. tStaV' V. Crawford (Kas.), p. 451). Whenever evidence is given which tends to overthrow the presumption of sanity, the burden of proof of sanity is cast upon the prosecution. People V. Garhutt (Mich.), p. 4ija. When any facts are proved which raise a doubt of the sanity of a person accused of crime, it devolves on the State to remove that doubt, and establlsli the sanity of the prisoner to the satisfaction of the jury beyond all reasonable doubt. Cimningham v. State (Miss.), p. 470. Where, in a criminal case, the accused relies npon insanity as a defence, the burden of jiroof is on tlir prosecution to show sanity. Wright v. People (Neb.), i). 477. In sustaining such a defence, where there is testimony to rebut the legal presumption that the accused was sane, unless the jury are satlsUcd beyond a reasonable doubt that the act complained f)f was uot pro- duced by mental disease, they must acquit. Id Where insanity is set up as a defence to an indictment, the jury must l)e satisfied beyond reasonable doubt of the soundness of the prisoner's mind and his capacity to commit the crime, upon all the evidence before tliem, regardless of the fact whether it be adduced by the prose- cution or by the defendant. State v. Bartlett (N. IL), p. 480. On a trial for murder, Avhere the defence was insanity, the judge charged the jury that sanity being the normal state of the mind, there is no presumption of insanity; that the burden of proving it is upon the prisoner; that a failure to prove it, like a failure to prove any other fact, is the misfortune of the party attempting the proof," and that tlicy must be satisfied of his insanity beyond a reasonable doubt; otherwise they must convict. Held, error. People v. McCann (N. Y.), p. 4'JO. The burden of proof is upon the prosecution to show by the whole evidence that a person chargeil with crime, alleged to have been committed in a state of insanity, is sane. O^Connell v. People (N. Y.), p. 4!)1). A charge that " the proof of insanity must be as clear and satisfactory, in order to acquit, as the proof of the crime ou^ht to be to find a sane man guilty; " or to charge that if the jury have a reasonable doub-r^ : INDKX 927 BUKDKN OK VnOOV — Continued. to the insanity of dcfcndunt, they uu^ht to convict, id crntr. Dove v. Slate (Ti!un.;. p. 502. The burden of proof Is on the prisoner who pleads Insanity iia a defence ; and tiic jury aro llio Jihljies of tth; wcl;;lit of the testimony adduced thereon. McKemie, v. State (Ark.), p. b'.V.\. The defence of insanity tnu.st be proved to tlic satisfaction of the jury. BosioeWs Case (Va.), p. S92. An instruction that where tlie jury, from the evidence, entertain a rational doubt on the question of insanity, they slioiild always llud in favor o! sanity, is erroneous. Smith v. Com. (Ky.;, p. 670. The evidence of Insanity, to warrant an acquittal, .should be sufflclently clear to convince the minds and consciences of the jury. Webb v. State (Tex.), p. 835, and see King v. State (Tex.), p. 811. The burden of proof of Insanity is upon the defendant, yet he should have the benefit of any reasonable douljt. U. S. v. Lancaster (U. S.), p. 897. Three theories as to the burden of proof, p. 513. First theory that burden on prisoner to prove defence beyond reason- able doubt, pp. 5i;'>, 514. now almost obsolete, p. 511. except perhaps In Delaware, p. 514. and New Jersey, p. 614. Second theory, that burden on prisoner to satisfy jury of truth of plea, p. 614. Rule in Alabama, pp. 514, 874. Arkan.sas, p. 514. California, p. 614. Connecticut, p. 516. Georgia, pp. 516, 874. Iowa, pp. 516, 878. Kentucky, p. 517. Louisiana, p. 617. Maine, p. 517. Massachusetts, p. 617. Minnesota, p. 518. Missouri, p. 518. North Carolina, p. 518. Ohio, p. 518. Pennsylvania, p. 520. Texas, p. 532. Virginia, p. 521. West Virginia, p. 521. England, p. 522. Third theory, that burden is on prosecution, p. 525. Rule in Illinois, p. 526. Indiana, pp. 526, 875. Kansas, p. 527. }»28 INDKX. IJURDKN OK Vnooi'—Vontinncd. Mirhlpan, p. 5l.'7. MLssisslpi)!, p. ol.'7. N('l)ra8ku, p. u'JJ. New Hiimpsblrt', p. 627. New York, p. 529. Teuuessee p. 5;!1. BURGLARY. See Intknt; Capacity to Commit Crime. CALIFORNIA. Test in, p. 231. Burden on prisoner, p. 514. CAPACITY TO COMMIT CRIME. It is competent to show as a defence to a crime that the prisoner was in such a physical condition as to render it improbable that he committed It; as for example, that he was too drunk to have carried out a cure- fully executed larceny or burglary. Ingalla v. State (Wis.), p. 712. CERTIORARI. See Vkkdict, I.vsanity aktkk. CHALLENGE. On a trial of present insanity tlie prisoner is not entitled to peremptory challenges. The right to peremiilory challenges exists only as to the trial on the indictment and not on the trial of preliminary or collateral issues. Freeman v. People (N. Y.), p. 882. CHARACTER. Evidence of the uniform good (Character of the prisoner is admissible where the defence is insanity. Hopps v. People (HI.), p. 444, and see p. 865. CHILD. A temporary mental derangement produced by drinking intoxicating liquor, under which a hoy oi thirteen years of age committed a theft, author- izes a jury to acquit luni. Com. v. French (Mass.), p. 681. The child test, p. 20n. CHILDREN. See Dementia. CONFESSION. When insane no evidence of guilt, p. 8G1. CONFIDENTIAL COMMUNICATIONS. See IlfsUAXi} and AVife. CONFINEMENT. Of insane criminals, p. 1)19. CONNECTICUT. Moral insanity recognized, p. 270. Burden on prisoner, p. 61G. iM)i:\, 1>2!» <:()NSTITI TION.M, LAW, See " ((N» !•; i\ .Ikoi-auh^ ." ('<»NTINII.\N(;|.;. Ui'fiiHiil of appliciitioii for, held «' I'UKSI MITIIIN, CONVICTION. .SW; Nkukict, I.NM.wirv .Vi ri;n. <'(»rNSKI,, IlKJIITSnl'. .SV'« TiMAi,, I.N.sANirv ^r'l'lMl: n\. DK.VK .MKTi:. Practice on trial of. p. itjM. DKChAlJATInNS. (S'fif, also, .Vi'T.S AND ('o.Miicr. Tlic prisoner's nn.sworndcrlaralioiis arc not ailniisNihlc in iiis favor, Hk.iii;!, adnilssibic asaiiainsi liim. ('. ,v. v. GuUpuh (U. S.), p. l(i4. Dfclaralion.sof llic licccasi'd arc ii.. ••vidi'iicc of ilir insaniivof ilir prisoner States- .S>e«rec (N. ,1.), |). ;i;!.-). Whero ttic defence to an indictment for murder i.s insiirdt.v, evidence of ;i .sul)S.'(piciit conversation witli the i)rison<'r, and of liie tests made at tliat fiine are not adniis.-dMe to sliow Ids in.sanitv. Choice v. Stotf tr.n ' > p. oM. ■ ' ■^' Of prisoner wlien U(iniissil)ie. s/afe v. John (S. ('.;, \>. 7x7. Tlie |)ri,sonor Ixdnjj; indicted for tlie ninrd.'r -f his wife, ••videne,. ,,f i,,.,. a.-ts and declarations (jn tlie same ilay are ii'relevant. n'on-fntw Com d'a ) p. .so'.i. . ■ ' -J^ Dcclaration.s not ms i/e.ttir inadniis.sihie, p. s.v.i. 1)K(;kkks of cim.mi:. Tlionfrl, a total want of responsiliility on account (.f imsanit.v he not sliown, yet if the prisoner's mind was so fur impaired as to render ii:-! incap^ able of a de]il)erate, premeditated murder, lie shoidd be convicted only of murder in tlie sec^oiid degree. Andpison v. Stale (Conn.), p. i:.':i. Where tliere are degrees of murder, tlie fact of druul^enness is relevant on tlie question wlietlier the liiliing sprang from a premeditated piirpo.se, or from passion e.xcited by inadefiuate |)rovocation. Haile v. Sfa/'>- (Tenii.), p. 57;!. Intoxication is relevant on the (juestion of deliberation and premeditation. BoHV-e.lVs ('due (\'a.), j). o'.*2. On an indictment niidcr a statute |)rovidiiig that ail murder "perpetrated by any kind of wilful, deliberate, and iiremeditated killing" is murder in the first degree, a state of intoxication or any otiicr fact tendiii" to iiao INDEX. DIOGKKKS OF CmMK — Contimied. prove that the prisoner was incapable of delil)eration may be shown. Statev. Johnson (Covu.), p. GOH. Tile intoxication of the prisoner is relevant in ileterniininjuj the prisoner's state of mind at the time of the act; and in connection with proof of provocation may tend to show that the act was one of suilden passion and not of premeditation, and that therefore the homicide is man- slaugliter and not murder. Id., p. (109. Where the crime was conunitted after provocation, evidence of intoxica- tion is admissible on the question whether it was done in tlie heat of passion, :',nd wliether tln-eatening words were uttered by tlie prisoner with deliberate purpose or otherwise. People v. Rogers (N. Y.), p. i!24. Intoxication is no excuse for crime; but if it deprives the reason of power to thinlc anil weigli the nature of the act committed, it may prevent a conviction for murder in tlie first degree. Jones v. Com. (I'a.), p. 088. On the question of the degree of a murder, evidence of the drunkenness of the prisoner is relevant. Swan v. State (Tenn.), p. G48. Drunkenness works.no mitigation of the grade of tlie guilt of any one who lias committed a criminal offence; yet in a case where, under the act of 182St, cli. 53, sec. ii, there must be a deliberate and premeditated killing to constitute murder in the first degree, proof of drunkenness is admis- sible, because it may show that the party accused was incapable, l)y reason of the state of liis mind, of forming a deliberate and premedi- tated design to take life. As between the offence of murder in the second degree and manslaughter, the drunkenness of the offender can form no legitimate inquiry; the killing voluntary, the offence is neces- sarily murder in tlie second degree, unless the provocation were such as to reduce the offence to manslaughter. Pirtle v. State (Tenn.), p. 645. If :i person is so drunk as to be incapable of forming a premeditated aii the act of ted killinii 8 is admis- ;apable, l)y rl preniedi- rder in the Sender csin ;e is neees- were such ;^Tenn.), 1). litated and he first de- t, th'! jury he purpose ing upon a i to reduee rder in the eliberation rder in the h intent to ent is rele- he prisoner produced a Lancaster d preniedi- , tlie degree t was com- I)I:(;HEES of ClU'^iV.— Continued. nutted the prisoner was intoxicated, any more tlian it would l)e if it had been perpetrated by means of poison or by lying in wait. State v. Tatro (Vt.), i>. NS — Continued. situation, iis to respousibility, as if tlie facts, in respect to whicli tlic delusion exists, were real. Id. Where the delusion of a person is siuli that he has a real and llrm belief of tiie existence of a fact which is wholly imaginary, and under that in- sane belief lie does an act which would be justitiable if such fact ex- isted, lie is not responsible for such act. Com. x.liogers (Mass.), p. lo«. An insane delusion is an unrea.soning and incorriuible belief in the existence of facts which are either impossible absolutely, or impossible under the circumstances of the individual. U. S. v. Guitean {V. S.), p. let. (Opinions or beliefs founded 2A. An insane delusion relieves a person from responsibility when, and only when, the fact or state of facts which are believed in under the in.sane delusion would, if actually existing, have justified the act. llosiccU \. State (Ala.), p. :!oL'. Wiicii is a criminal act iloue under an insane delusion not punishable. State V. John (\. ('.), i). 7H7. DKMENTIA. See I.Miux'n.K. l)UrN'ivI<:NNESS. See, aluo, Kxowi.Kixii: ; CAi'Acrrv to Commit Ciumi;; Lntim'; Dki.ikh.m Tkkmkns: I'rovoc.vtio.n ; Dkoui'.ks oi.- (.'huh; : M.\i,i(t:: Ciiii.o. If a person, while sane and responsil)le, makes himself intoxicated, and while intoxicated, commits murder l>y reason of insaiuty, which wa> one of the consequences of intoxication, and one of the attendants on that state, he is responsible, f. S. v. McGhte (U. S.), p. 55. N'oluntary drunkenness is no excu.se for crime: but insanity produced i)y continued intoxication is. lirudleij v. State (Ind.), p. 11."). Wliere a crime is connnitted intentionally as a matter of revenge, the In- toxication of the prisoner does not cliange its grade. State v. (rut. (Minn.), p. 18'.'. Drunkcuuess from social hilarity is no excuse for crime, h'riel v. (.'"»" (Ky.), p. :i7i'. Temporary insanity resulting immediately from voluntary intoxication is \\<> defence to crime. Hut in.saiiity remotely occasioned by previous li:ul habits is entitled to the same consideration as if It arose from any otinr cause. State v. Hnndlen (Mo.), p. 418. N'oluntary tirunkenness of whatever degree constitutes no (U'fence to tin commission of crime. People v. Garhnit (Mich.), p. 1(1,'). i INDKX. '.)3.'} DIU'NKENNKSS — Continued. Drunkenness is no excuse for eriuie. McKcnzic v. State (Ark.), p. 5;'.:?. If ii man's mind, unexeited by lit|Uor, is capable of distingnlslihiK between ri.!,'ht and wrong, and he voluntarily deprives lumself of reason by in- toxicatiou.snch intoxication is no excuse for a crime committed in tiiat condition. Choice v. Slate ((ia.), p. ii.-.s. Nor does it make any difference that a man, either i)y a former injury to the head or i)rain, or a constitutional inhrmity, is more apt to l)e maddened i)y liquor than another man. If he has leijal memory and discretion when sol)er, and voluntarily deprives himself of reason, he is responsi- ble for his acts while in that condition. Id. 4n inordinate thirst for liquor, produced I)y the habit of drinkinji, is no ex- cuse for the consequences of such indulgences. The disease called oinomania questioned. Id. The voluntary drunkenness of a murderer neitiier excuses the crime nor mitigates the punishment. Shannahati v. Com. (Ky.), p. 557. One in a state of voluntary intoxication is sul)ject to the same rules of conduct and principles of law as a sol>er man, and where a provocation is offered, and the one offering it is killed, if it mitigates the offence of the man drunk, it should mitigate the offence of the man sober. Id. Voluntary intoxication is no defence to crime; so long as the offender is capable of conceiving a design he will be i)resumed to have intended the natural consequences of his acts. Kenny v. People (N. V.), p. 5G2. Artificial and temporary madness l)y drunkenness voluntarily contracted is no defence to the charge of homicide. Bennett v. State (Tenn.), p. 571 . II. was indicted for murder. It was proved that he was drunk at the time of the offence. The judge charged die jury that drunkenness was an aggravation of the offence, unless the prisoner was so deeply intoxicated as to be incapable of forming a deliberate and premeditated design to do the act. //e?d, error. Haile v. State, {l^mx.), {). ol?,. Drunkenness may produce intoxication or mental unsoundness. So far as it produces the former it is no defence to crime. But mental unsound- ness resulting from drunkenness may, if it overthrows the prisoner's sense of right and wrong, be an excuse or palliation for crime, lieasle^i V. State (Ala.), p. 577. Insanity resulting from long continued drunkenness is an excuse for crime: but insanity, the immediate result of 'ntoxication, is not. Cornwell v. State (Tenn.), p. 683. Voluntary drunkenness does not excuse a crime, but permanent insanity, like every other kind of insanity, excuses an act which olherwi.se wouiii be criminal. BosweWs Ccxe (Va.), j). 5<)'J. Where a person is insane at the time heconunitsa murder, he is not punish- able as a murderer, although such insanity be remotely occasioned In undue indulgence in spirituous liquors. But it is otherwise, if he be ai the time intoxicated, ami his insanity be directly caused by the immedi- ate influence of such li(|Uors. ['. S. v. Drew (U. S.), p. (JOl. \}U INDEX. DIJL'NKKNNKSS — Continued. Drunkenness does not mitigate a crime; neither can it be talven into cim- sideration by a jury in deterniiniiifi whether a person committing ;i lioniicide acted tiierein wilfully, .deliberately, and premeditutedly, so as to constitute murder in the first degree. State v. Cross (Mo.), p. fjl'.i. Voluntary intoxication is no excuse for crime. Peoplev. Rogers (N. V.), p. G24. Insanity resulting from habits of intemperance and not directly from the immediate influence of intoxicating liquors, may amount to a defence to crime. Id. On an offer to prove the prisoner's intoxication at the time of the commis- sion of the alleged crime, the court remarked: " If you offer it as a defence I think it is immaterial, because I shall instruct the jury that driinkenness is more of an aggravation than an excuse." Held, error. State V. Donovan (la.), p. G78. Insanity occasioned by voluntary intoxication will not excuse where tin- person is aware of hi.s liability to insanity from the cause, and has sulli- cient mental capacity to form an Intent. Boberts v. People (Mich.), ]<. (;87. But insanity (of which a person is ignorant) resulting from voluntary intoxication will render a person not responsible, whei'e he does not know what he is doing or why he is doing the act, or if conscious ot this, he is not conscious of any object in doing it, or if the diseascil mind has so perverted his reason that he does not know that what he i> doing is wrong. Id. Where the defence of temporary insanity proceeds upon the theory that it was induced by the operation of strong drink upon a mind rendered unsound by an injury to the brain, it is error to leave tlie question oi criminal responsibility to be determined upon the facts of injury and mental unsoundness alone, or upon the effect of intoxicating liquors apart from the other facts. People v. Cummins (Mich.), p. (it)5. One in a state of voluntary intoxication is sui)ject to the same rules of con- duct and the same legal inferences, as a sober man. State v. McCants (S. C), p. 722. N'oluntary drunkenness will not mitigate a crime. State v. John (N. C), p. 787. Drunkenness is no excuse for crime, pp. 727-744. No defence to crime of perjury, y 744. No defence to crime of hlasphem. p. 745. No defence to crime of arson, p. 15. Hut it does not aggravate the offence, p. 745. Kxceptions to the rule, p. 747. An excuse if it produces insanity, pp. 747-754, 873, 874. .Vnd it is relevant on the degree of a crime, pp. 754-757, 87;'), 874. But not in Missouri, p. 757. .Vnd it is relevant on (luestion of intent, p. 758. Y INDEX. 1)35 lly, so as , p. fii;-. r. v.), \>- DHrNKKNNESS — Continued. An excuse for attempt at suicide, p. 7i ■ -> (Mass.), p. 158. The wt'ialr ')f '.ucli testimony. Quetig v. State (Ind.), i). 450. Medical experts who have heard the whole of the evidence, or to whom the whole of the evidence has been hypothetically stated, may give an opinion as to the sanity of the prisoner at the time in question ; but they cannot predicate an opinion on anything less than the entire evi- tlence whether actually or hypothetically presented. Webb v. State^ (Tex.), p. 835. Evidence of experts, p. 87'.t. FORMER TRIAL. Where witness becomes insane, liis testimony on former trial is adnussible. p. 8()(;. GEORGIA. Test in, p. 231. Burden on prisoner, p. 510. HABEAS coRrrs. Refusal of, where defence was insanity, p. 874. HKREDITARY INSANITV. See, RKi..\TiVES, Ins.\nmtv in. HUSBAND AND WIFK. Testimony as to insanity not within rule as |to contldential communications, p. 858. HYrOCONDRIA, Occasional oddity or hypocondria does not amount to insanity excusing tlie com* iiraion of a criminal offence. Nothing short of the inability to dis- tinguish right from wrong can ilo so. Hawe v. State (Neb.), p. Kl. INDKX. !>;;7 ILLINOIS. No test in, p. ;{24. Burden on prosecution, p. 52<:. IMBKCILE. An Imbecile ought not to be hold responsil)le criniinally unless of capacity of ordinary children under fourteen years of age, i.e., chihiren of hniii- ble life and of only ordinary training. State v. Richards (Conn.), !•• 1 : and see yi. 782. INDIANA. Test in, p. )V>\. Burden on prosecution, p. r)2(l. INSANE PERSON. Acts of not punlsiuible, p. 200. INSANE OR UxVCONTROLLABLE IMPULSE. See, also, Morai, Insanity; Tkst of Insanity. If an insane impulse leads to the comnussion or a crime, the actor is not responsible. An instruction that " if the jury believe that the defend- Miit knew the difference between right and wrong in respect to tlie act in question; if he was conscious that such act was one which he ought not to do," he was responsible for his act, is erroneous. Stevena v. State (Ind.), p. 87. If a person commit a homicide, knowing it to be wrong, t)Ut driven to it i)y an uncontrollable and irresistible impulse arising not from natural pas.- sion, bnt from an insane condition of the mind, lie is not criminally responsible. State v. Felter (la.), p. !t2 The uncontrollable impulse which will relieve a person from the consc- (piences of the commission of a crime, must have its origin alone in a diseased mind. State v. Mewherter (la.), p. 102. " Emotional insanity," i.e, "that convenient form of insanity which enables a person who does not choose to bridle his passion to allow it to get and keep the upper hand just long enough to enable him to commit an uctof violence and then subside," criticised. People v. Fiiiley (Midi,), p. 140. The law does not recognize any moral power compelling a man to do what he knows to l)e wrong. State v. Brandon (N. C), p. 144. The insanity which takes away the criminnl quality of an act must be sucli as amounts to a mental disease, and prevents the accused from know- ing the nature and quality of the act he was doing. Id. INSTRUCTIONS. It is error for the court to select certain facts shown by the evidence, and tell the jury what weight should be attached to them. State v. Smitli (Mo.), p. 413; State v. Hundley (Mo.), p. 418. An instruction which states that there was some evidence tending to show that the defendant was drunk in misleading. State v. Donovan (la.). p. (i78. y 93« INDKX, INSTUrCTIONS — Continnnl. A prisoner on trial is entitled to Imvt- tiio tlieory of Ills . Voluntary intoxication will not excuse acts which constitute an offence. Where, however, the offence cliarged Is an act combined with an Intent iM)i:x. }>31« \STKXV — Continued. to commit ail ojfencc not actually committed, if tiio prisoner was roti- (Icrod by intoxication incapalilc of cntortaining tin- intent, he is not re.sponsil)lc. Itoberta v. People (Mich.), p.dST. If a person has tlie capacity to form tlie intentto l. In cases which involve intention, as well as acts (as theft, etc.), evidence of the drunkenness of the prisoner at the time of the commission of the crime is relevant. Wenz v. State (Tex.), p. 708. IOWA. Burden of proof on prisoner, p. 5l(i. JURY. See, also, L.^w and Fact; Ciiali.knge. Misconduct of jury; reading newspaper accounts of insanity as a defence, p. 873. KANSAS. Test in, p. 232; Burden on prosecution, p. 527. KENTUCKY. Moral insanity recognized, p. 270. Burden on prisoner, p. 517. KLEPTOMANIA. See, also. Instructions. Ts a recognized symptom of insanity. Looney v. State (Tex.), p. 7ii'.»; and see p, 77!). St40 INDKX. KNOWLEDGE. Drunkenness of the uccuscd, at the time of piissliig the iillegfd counterfeit l)lli, is a circumstance proper to be .submittetl to thi' consideratinn of tlic jury, and sliould iuive Its just u eight in determining wliether tin- accused lstifkl<''/ (lu.), I. 108. Insanity may destroy either tlie understanding or tlie will. An instruction, therefore, which limits tlie inquiry of the jury to the conditi«)n of the power to apprehend l>y the understanding, is erroneous. Ih-ndloj v. State (Ind.), p. in. Moral mania, i.e., the derangement of the moral faculties, wliere it Is proved to exist, shouhl l)e considered l)y the jury in determining llie degree of a crime. Anderson v. State (Conn.), p. 12'.>. Moral insanity existing in such violence as to render it impossil)le for tlie party to resist its promptings is an excuse for crime. Scott v Vom (Ky.), p. l:t<;. The court instructed tlie jury that they sliould not acquit on tlie ground of moral in.sanity "unless it had manifested it.seif in former acts of similar character or lilve nature to the offence ciiarued." Udil error Id. , . Moral In.sanity— Irrisistiliie Impulse, L'70: Doctrine recognized in some States, 270; Denied In others, ;50!); and In Kngland, 309. Moral insanity, which consists of irrisistil)le impulse, co-existing with men- tal sanity, should not l)e recognized liy tlie law. Bosmull v. Sti:n( k. A new tritil will not be granted on account of newly discovered evidence whicli is cumulative. State \ . liedemeicr (Mo.), p. 4l'4, and see p. 8(l'.i That an expert witness by tlie defence has, testified contrary to expecta- tion is no reason for a new trial on the ground of surprise. Webb v State (Tax.), p. S85. NEWLY DlSCOVERKl) EVIDENCE. See, also, Nkw Trial. A. was indicted for murder in the first degree, and was c»^ cd after of- fering some evidence of his insanity. A new trial was afterwards asked for on the ground of newly discovered evidence of his insanity. Held, that it sliould be granted. Anderson v. State (Conn.), p. 12;t. NORTH CAROLINA. Test in, p. 267. Moral insanity criticised, p. ;50y. Burden on prisoner, p. 518. OHIO. Test in, p. 257. Burden on prisoner, 518. "ONCE IN JEOPARDY." If it is not suggested that tlie accused is insane at the time of the trial, and the jury impanelled for the trial of the cause be discharged, tlic pris- oner is thereby wrongefl byl)eing prevented from malting his proper de- fence before the jury, and is entitled upon his motion to be disciiargcd from further prosecution of the indictment. Oruher v. State (W. ^'a.), p. 912. OPEN AND CLOSE, RIGHT TO. See, also, Trial, Insanity at Time of. In a criminal trial, where the defence is insanity, the prisoner is not en- titled to open and close. State v. Felter (la.), p. 371. 1 evidence see p. 8il'.i > (;xi)ecta- [Vebb V 1 after of- fterwiirds 1 insanity. |). 12'.). trial, niid I tlie pris- proper de- isciiargcd (W. Va.), IS not 011- INDKX. #48 ol'KN AM) (JI.OSi:, KKiiiT To ~ Contimipcl. Tlie deffiice of insanity under tlu' plea of not j,'iiilty docs not entitle tla- de- fendant to the oi)enin« and eloslnji aruiinient to tlie jnry. Loefnet' v, Hiylit to open and close, p. HCti. In uii lnc|nislli(ni of insanity tlie eonnscl for ilic |»risoiier ylmuld open and close the case to the jniy, (^. S. v. Lnncantfr {V. S.), |). hii7. oriNIONS. See, also, Exim'.u is. A witness not an expert may kIvc his opinion of a person's insanity, if ac- eomiianied witli Mie facts on which it is based. Statew £r6 (.Mo.), p. 11. Of witnesses when adnii.sslhie. State v. Stickley, (la.), p. 108. The opinion of an ordinary ^witne.sH as to a pri.soner'.s sanity arc inadmis- sible. State V. lirinijea (Ala.), p. ;'.4!i. C)|)lnions of witness as to the prisoner's insanity are admissible. Baldwin V. State (Mo.), j). ;}!)5. Uniirofessional witnesses may be asked, after giving tlie circumstances and condnct of the party, to state their opinion as to his sanity; and tlie exclusion of such evidence dfered by a defendant is error. Duvew State (Tenn.), p. 502. The opinions of persons not experts as to the sanity of the prhsoner are ad- missible, if accompanied by the facts upon which they are founded. Choice v. State (Pa.), p. 538. The opinions of witnesses, that tin- prisoner appeared to be drinking are admissible. Id. The opinions of physicians as to the .sanity of the prisoner on facts liypo- thetically stated are admissible. Id. OPIUM. Insanity caused by use of, 782. ORDER OF PROOF. See Opkn .\nd Cj.osk, Right to. It is not error for the court, on a trial for murder, where insanity is set up as a defence, to require the defendant to submit his hypothetical case to his professional witnesses, before the rebutting evidence of the State is heard on the question of insanity. If evidence materially varying the hypothetical case is afterwards introduced, the defendant must ask leave to re-examine as to the new matter. If the new proof does not make any change in the hypothetical case submitted, the de- fendant would not be injured by the refusal. Doce v. State (Tenn.), p. 502. Where the prosecution has proved a homicide, and the prisoner introduces evidence tending to show his insanity, the prosecution may, in re- buttal, offer evidence of express malice. Choice v. State ((ia.), p. 538. }>44 IXDKX. PASSING CUUXTKKFKIT .MONKV. See KxowLKixiK. I'KNNSYLVAMA. Test ill, p. 2iVJ Burden on prisoner, i». 5i'0. I'LEA. It is not error for tlx' court, in its clmrge, to spesilv of tlic defence of in- sanity set uj) as a plea of insanity put in. Dove \. Slate (Teun.j, p. 502. In a case wficre tiie liillinfj is proved l)eyond (juestion, t-n' the judge to cliarge the jury that the plea of insanity put in (tliedL-fence of insanity) was an admission of the killing, is not error. Id. Inder plea of not guilty, evidence of Insanity is admissible, \>. HOd. It is error to exclude from the jury evidence of the prisoner's insanity at the time of tiie commission of the offence, on the plea of not guilty. Gruherx. State (W. \'a.), p. 'J12. I'HKMEDITATION. See I)E(iREK.s or Cnnii:. I'UKSHNT INSANITV. (See Tki.vi,, Insaxitv at Ti.mk ok: Nkudkt, In x.virv Aitki;. PKKSrMPTION. Every one presumed to lie sane, llovard v. State (.Miss.), p. 4; L'. S. v McGlue (U. S.), p. 54: and see p. 513. If the homcide charged is proven, in the opinion of the jury, the l)arl)arity of the act affords no legal presumption of insanity in the accused. Id. The enormity of the crime, or the al)seiKe of motive is no evidence of in- sanity. V. S. v. Gtdteau (V. S.), p. 1(14: Larosv. Com. (Pa.), j). 824: and see p. 85(i. Where a person is .sane shortly before and after an act, the presumiition is that he was sane at the time. Lynch v. Cinn. (Pa.), p. i4i;. Tlie continuance of insanity is presumed unless a lucid interval is sliown. State V. Spencer (N. J.), P- liJij. Where it is shown that the prisoner was insane at anytime prior to tlic commission ol the crime charged, the law presumes tlic continuance of sucli insanity until a lucid interval, or a restoration to reason is proved. Baldvin v. State (Mo.), p. I'>!t5. Where insanity is shown to exist a siiort time before the act, tlic evidence should show insanity at the time or tlie jury should acquit. State v. Johnson (Conn.), p. 603. Delirium tremens to be available as a defence must be sliown to e.xist at tlic time the act was done. In tlie case of temporary in.sanity tlu-re is no presumption of continuance. State v. Seioell (N. C), p. 817. Presumption of continuance of insanity, p. 8(11. .\\\ attempt at suicide niises no iiresumption of insanity, ('uiih'w Com. (Pa.), p. 4 + 1. INDKX. 945 fence of in- U' (Teiin.j, le judge to »f insanity) Gfi. i''s insanity not guilty. »; U. S. V. barl)!irlty used. 111. enco of in- O.P. 8-'+: imption is is sliown. rior to the ntinuante reason is ' <'viden('e State \ . cist at till' tiere is no '' \'. Com. PKICVIOUS AND SUBSEQUENT CONDITION. See Priou and SrnsictiUKNT Insanity, PRIOR AND SUBSEQUENT INSANITY. /S'ee, also, Acts and Conduct. On the trial of the sanity of a person, evidence of liis previous and sul)se- quent condition is admissible. U. S. v. Guiteau (U. S.), p. 1(;4. Evidence that the prisoner had been insane at a period prior to the date of the con^ijpiission of the act is admissible. State v. FeUer (la.), !t2. previous or subsequent insanity will not discharge the accused. It must be shown to exist at the time the deed was done. State v. Hays (La.), p. 7117. On a trial for murder by poisoning, the defence being insanity, the court submitted to the jury the fact of the sanity or insanity of the prisoner on the day he purchased tlie poison as Avell as on the day it was admin- istered. Held, proper. Laros v. Com. (Pa.), p. 824. Previous and subsequent insanity, p. 8G0. On the trial of an indictment for murder the court refused to permit evi- dence to be given that the prisoner was insane at any time after the finding of the verdict in the preliminary issue of insanity at the trial. Held, error. Freeman v. People (N. Y.), p. 882. Where the prisoner was tried for murder, four months after the crime was committed, evidence that he was insane at the time of the trial was relevant on the question of his insanity four months before. Id. Under a plea of not guilty, evidence of the prisoner's insanity both l)e- fore and after the commission of the offence is admissible. People v. Farrell (Cal.),p. 'JOit. PROVOCATION. In deciding as to the degree of a homicide, the jury may consider the drunkenness of the accused at the time of the killing, not to excuse or mitigate or extenuate his crime, but to assist them in deciding when there was a provocation, whether the intention to kill preceded the provocation, or was produced by it. Jones v. State (Ga.), p. 012. On a charge of murder, the fact that the prisoner was Intoxicated will not make an inadequate provocation an adequate one, unless it was suffi- cient to rendei him unable to form a wilful, deliberate and premedi- tated design to kill, or incapalile of judging of his acts and their legitimate consequences. Keenan v. Com. (Pa.), p. 715. Where a provocation has been received which if acted upon instantly would mitigage the offence of a sober man, and the question in the case of a drunken man is whether that provocation was in truth acted on, evi- dence of intoxication may be considered. S'.ate \. McCauts (^. C), p. 722. RAPE. See Intknt. 60 946 INDEX. REASONABLE DOUBT. See iNSTRircTioxs. Deflnitiou of, p. 115, 140. RELATIVES, INSANITY IN. On the (lefeuce of insauity in the prisoner, evidence that his father wassul)- jcctto fits of insanitj', is udmissible. State v Feltcr (la.), p. !)2. Where there is no evidence of the prisoner'.s in.sanity, evidence of the in- sanity of his relatives is irrelevant. Bmdlen v. >!tate (lud.), p. 114. In connection with evidence of his own insanity, testimony showing insanity of his parents or immediate relatives, is relevant. U. S. v. G^iiteau'{V. S.), p. 1(J4. Where there is evidence of tlie prisoner's insanity, the fact that sonic of his ancestors were insane is relevant. Haldwin v. State (Mo.), p.S'JC. An hereditary tendency to insanity in the prisoner may he sliown. People V. Garbutt (Mich.), p. 4(18. Evidence of mental unsoundness on the part of a brother or sister of the person whose sanity is in question is admissible. Id. Where hereditary insanity is offered as an excuse for crime, it must appear that tlie insanity actually exists in tlie prisoner; tliatit is not temporary, but notorious, and of the same species as other.mcmbers of the family have been afflicted with. State v. Christmas (N. C), p. 8i'l. Until there is some evidence of the prisoner's insanity, the court is not obliged to hear evidence of the insanity of Iiis relatives. Laws v. Com., p. 825. On the question of the prisoner's insanity, it was error to refuse to permit an inquiry into the mental condition of any of his inmiediate relatives. Hagan v. State (Tenn.),p. 8.'!;!. P^vidence of insanity in relatives, when admissible, p. 805. REPUTATION. The insanity of the prisoner cannot be sliown by evidence of reputation. Choice V. State (Ga.), p. 5o8; and sec p. 847 SOMNAMBl'LISM — Continued. der of S., F. offcreil to prove that he had been a slocp-walker from infancy; that he had to be watched to prevent injury to himself ; that fre(|uently wiien aroused from sleep, he seemed frijCfhtened, and at- tempted violence as if resisting an assault, and for some minutes seemed unconscious of what he did or wliat went on around him; that sometimes when partly asleei), he resisted the servant who slept in the room with him as if he sui)posed the servant was assaulting him. lie also offered to prove by medical expei ts that persons asleep sometimes act asif awalie. He likewise offered to prove that his life had been threatened l)y a person living near where he liad been on business during the day, and that he had on tiiat morning borrowed tlie pistol witli which he shot the deceased and had stated at the time that he was required to go near to where the person lived who hatl tlireatened him, and he wanted the pistol f^ defend himself in case lie was atta(;ked. Tlie court rejected all this proffered evidence, and the prisoner excepted. Held, error. If the prisoner, when he shot tlie deceased, was unconscious, or so nearly so that lie did not comprehend his own situation and the cir- cumstances surrounding him, or that he supposed lie was being assailed, and that he was merely resisting an attempt to take liis life or do him great liodily injury, he sliould be acquitted. Fain v. Com. (Ky.), p. 772. S I • I CIDE , ATT J-: MPT AT . See Presi'.mptiox. sr UPRISE. See New Trial. TENNESSEE. Test in, p. L'Cli. Burden on State, p. 531. TEST OF INSANITY. See, also, Insam: ok Uncx»ntij()m,arle Imiulsk; Imreciie: IlYPiK-ONPRiA. A charge which makes the test of insanity depend upon whetlier tin pris- oner knew right from wrong generally, insteatl oi with respect U tlic act but which he is indicted, is erroneous. Encin v. State (Tex.), ]). 845. If the jury believe from the evidence that tlie accused killed the deceased with malice and not in necessary self-defence he is guilty of murder, not- withstanding tliey may believe he was, at the time of committing the deed, laboring under partial insanity, unless he was, from such in.sanity, incapaiile of understanding the nature and consequence of his act, and of knowing that it was wrong, and that lie wouhl lie punished for it. Bovard v. State (Miss.), p. 5. Insanity, however produced, con.stitutesno excuse for crime, unless it be so great as to deprive the party of his power to understand the nature of his act, or of his ability to distinguish between right and wrong, and of his ability to understaml that he will be liable to punishment if he com- mits it. Id. D48 IXDEX. TEST OF laSA^lTY — Continued. Though a party be partially insane, yet he is responsible for his criminal acts, unless it appear that he was prompted or instigated by his mad- ness to perpetrate such act. Id. To entitle a person charged with homicide to an acquittal on the ground of insanity, it must appear that his mental faculties were, at the time the act was committed, so perverted and deranged as to render him incap- able of distinguishing between right and wrong, with respect to that particular act. State v. Erb (Mo.), p. 10, The prisoner was indicted for murder, the defence being iusanity. The judge charged the jury as follows : '• In every case, although the accused may l)e laboring under partial insanity, if he still understands the nature and character of his act and its consequences, and has a knowl- edge that it is wrong and criminal, and a mental power sufficient to apply that knowledge and to know that if he does the act he will do wrong and receive punishment, and possess withal a will sufficient to restrain the impulse that may arise from a diseased mind, such partial insanity is not sufficient to exempt him from responsibility to the law for tlie crime." /TeW, correct. Dejarnette v. Com. (Va.), p. 18. The test of insanity as a defence to crime is whether or not the prisoner was laboring under sucli a defect of reason from disease of the mind as not to know the nature and quality of the act lie was doing, or if he did know, that ho did not know he was doing what was wrong. People v. laeim (N. V.), p. 20. Tlie test of respousil)ility for a criminal act when unsoundness of mind is set up for a defence is the capacity of the defendant to distinguisli between riglit and wrong at the time of and with respect to the act which is the subject of inquiry. Flanagan v. People (N. Y.), p. 37. Where the defence of insanity is interposed to an indictment, the true test of criminal responsibility is, whether the accused liad sufficient reason to know right from wrong. If he had sufficient intelligence to know it, whether he had sufficient power to control or govern his actions is a matter of no moment wliatever. Walker v. People (N. Y.), p. 40. The true test of criminal responsil)illty wliere the defence of insanity is interposed to an indictment is, whether the accused had sufficient reason to know the nature and quality of his act, and whether ho had sufficient reason to know right from wrong. Id., p. 49. In his charge the recorder refused to add to this proposition the further one, " and whether or not he (tlic accused) had suflicient power of con- trol to govern his actions." Held, that the refusal was proper, as the recorder had charged that the accused must have sufficient control of his mental faculties to form a criminal intent before he can be held responsible for a criminal act, which was as far as the court should go on the subject of control. Id. It is not every kind or degree of insanity which exempts from punishment. If the accused understood the nature of his act; if he knew it was wrong ant! deserved punishment, he is resi>onsible. U. S. v. McGlue (U.S.), p. 54. INDEX, l)4i) as the TEST OF IJ^HAmTY — Continued. There is no legal test of iusauity in a criminal case. Stale v. Jones (N. II.), p. CA. On the trial of an indictment for murder, the jiuy wore instructed that if the prisoner counnitied the act in a manner tluit would be criminal and unlawful if he was sane, the verdict should be " not guilty by reason of insanity," if the killing were the offspring or product of mental disease in tlie prisoner. Held, correct. To excuse, the mental disease must be such as to destroy tlie power to comprehend the nature and consequences of the act, and to overpower the will. State v. Meicherter (la.), p. 102. If the accused was conscious that the act was one which he ought not to do, and if tlie act was at tlie same time contrary to law, he is punishable. McNaohtni's Case (Eng.), p. 150. Capacity and reason suflicient to enable one to distinguish between right and wrong, and understand the nature, character, and consequences of his act, with mental power sutlicient to apply that knowledge to his own case, furnish the legal test of sanity. Com. v. Eoyera (Mass.), p. 158. The test of responsil)ility where the defence of insanity is interposed, is whether the accused liad sutHcient use of his reason to understand the nature of the act, and that it was wrong for him to commit it. U. S. v. •Guiteau (U. S.), p. KJ-t. If a man has not reason suflicient to enable him to distinguish between right and wrong in relation to the particular act, he is not punishable. Nor is he where, in consequence of some delusion, the will is over- mastered and there is no criminal intent. Roberts v. State (Ga.), p. 193. The test of the responsibility or irresponsibility of a person for a criminal act done while in an alleged state of insanity is, was he at the time and as touching that act sane or insane? If he had suflicient mental capa- city at the time of committing it, to distinguisli between the right and wrong of that particular act, and to know that it was wrong, he is criminally responsible for it. State v. Pratt (Del.), p. 327. The test of insanity is whether the accused at the time of the commission of the crime was conscious he was doing what he ought not to do. State V. Spencer (N. J.), p. 335. The test of insanity is the ability to distinguish between the right and the wrong of the act charged. Baldwin v. State (Mo.), p. 3',m;. To establish insanity as a defence, it must be proved that at tlio time of committing the offence, the prisoner was laboring under such a defect of reason from tlisease of the mind as not to know the nature and qual- ity of the act he was doing, or if he did know it, such as not to know that he was doing wrong. State v. Klinger (Mo.), p. 410. The test of the prisoner's responsibility is whether he Avas capable of dis- tinguishing between right and wrong in respect to the act charged. State \ . Eedemeier (Mo.), p. 424. I {150 INDEX. TKST OF INSANITY— ConimHed. A person who has reason sufHciont to distinguish between right and wrong and to understand tlie nature of the act is punishable. Loeffner v. State (U.),P. 432. Wherever it appears from tlie evidence tliat at the time of doing the act charged, tlie prisoner was affected witliinsanity, and such affection was tlie moving cause of tiie act, witliout which he would not have done it, he ought to be acfjuitted. Hopps v. People (111.), p. ^H. Insanity to excuse crime must destroy the power of distinguishing betweca right and wrong. Vuniiinghnm v. State (Miss.), p. 470. But the degree of mental unsoundness, in order to exempt a person from, punishment, must be such as to create uncontrolhil)le impulse to do the act charged. If it l)e found insulUclent to deprive the accused of ability to distinguish right from wrong, he should be held responsible for the conseciuenccs of lils acts. Wriijht v. People (Neb.) p. 477. No person can be guilty of murder who has not suHicient discernment ta distinguish between good and evil, and wlio has no consciousness of doing wrong in the act he is committing. Dove v. State (Tenii.), p. 502. If a man has capacity enough to distinguish between the right and wrong of his act, lie is a subject for punishment. Choice v. State (Ga.), p. 539. The test of insanity is tlie ability to distinguish lietwcen rig>it and wrong. In case of jiartial insanity, tlie question is whether the prisoner was capable of distinguishing between right and wrong in the particular connection in which the unlawful act was done. Carter v. State (Tex.), p. 58!). To be criminally responsil)le a man must have reason enough to be al)le to judge of the character and conseciuences of the act committed, and must not be overcome by an irresistible impulse arising from disease. State v. Johnson (Conn.), p. (loa. The test of responsil)ility is whether the accused had sufficient reason to know right from wrong, and whetlier or not he had suttlcient power of control to govern his actions. Smith v. Com. (Ky.), p. (Jdl). The capacity to distinguish 1)et\veen the right and wrong of the act is the test of unpunishable insanity. State v. Sewell (N. C), p. 81(5. The test of insanity, when alleged as a defence to an indictment, is whether, at the time of committing the act, the prisoner was laboring under such mental disease as not to know the nature and quality of the act he was doing, or that it was wrong. Freeman v. People, p. 882. The child test, p. 200. The wild beast test, p. 20n. Erskine's argument in Iladlleld's Case, p. 201. Test of knowledge of right and wrong in the abstract, p. 218. Test of knowledge is applied to particular case, p. 2I'J. Test in England, pp. 219-231. Right and wrong test in the American courts, p. 231. «^* INDEX. !>51 gilt and wi-oii to be able to imitted, and ■ora disease. It reason to nt power of act is tlie 1 is wlietlier, oring under f the act he TKST OF INSANITY — Continued. In Alabama, p. 2,} I. California, p. i>31. Delaware, p. 231. Georgia, p. 232. Kansas, p. 232. Maine, p. 232. Massachusetts, p. 2;>2. Michigan, p. 233. Minnesota, p. 233. Mississippi, p. 233. Missouri, p. 233. Nebraska, pp. 234, 874. New Jersey, p. 234. New York, pp. 234, 87o. North Carolina, p. 257. Ohio, p. 257. Pennsylvania, p. 25!». Tennessee, p. 2()!i. Texas, pp. 2(>!}, 875. In the United States Courts, p. 270. No test in New Ilampsliire, p. 311. Nor in Illinois, p. 324. Nor in Indiana, p. 324. That person is simply of low mental capacity not au excuse, p. 782. TEXAS. Test in, p. 209. Burden on prisoner, p. 532. TKIAL, INSANITY AT TIME OF. See, also, Ciiallexoe. The mode of trying present insanity at trial stated. People v Kleim (N Y.),p. 2(1. The form of oath administered to the jury in such cases. /(/. On such inquiry the prisoner holds the affirmative of the issue. Id. On an indictment for a capital crime if the jury tind that the prisoner tie" Iccts to plead by the act of God, the court will not trv him upon tl^e indictment. Com. v. L'raie?/ (Mass.), p. 881. A person while he continues insane cannot be tried or punished; aliler, if he be capable of comprehending his position and of making his ilefeiice though on some subjects his mind may be deranged. Freeman v People (N. Y.), p. 882. ^ Insanity at the trial should be tried by a jury; but other methods may be adopted by the court in its discretion. Whenever a prisoner's sanity at the time of the offence alleged is in ques- tion, the rule that he may control or discliarge his counsel at pleasure should be so far relaxed as to permit them to offer evidence on these' points, even against ids will. State v. Patten (La.), p. iioi. 9r)2 INDEX. TRIAL, INSAMTV AT TIMK UV — Continued. Im ii criiiiiiial caso, when after the close of tlie testimony in i)ehalf of tlio Statu, the counsel of the accused alleged the prisoner's Insanity before^ at tlie time of, and since tlie killing, and offered to introduce testimony in proof of the fact, and thereupon tiie prisoner arose, and repudiated sucli defence, and discharged his counsel, and the court gave the case to the jury witliout further evidence or pleadings on behalf of the pris- oner. Held, that tiie court erred in allowing the prisoner, under the circumstances, to discharge his counsel, and erred In not allowing them to offer proofs on the (|uestlon of Insanity. Id. Where it Is suggested that a prisoner brought up for trial or judgment is Insane, the question of his sanity must l)e sul)niitted to a jury. The rule is the same where tlie prisoner has been found to be insane, the trial postponed, and called again at a subsequent term. People v.Far- rell (Cal.), p. JtOii. On a second trial, the former verdict is i' missible on the question of pres- ent insanity. Id. The verdict of a jury, called to examine the sanity of a person at the trial, that he Is Insane, is conclusive that he was insane when it was ren- dered, and Is admissible in evidence on his trial for the offence, as tending to show that he may have been Insane when the offence was committed. Id. If there is reasonable ground to doubt the sanity of the accused at the time of the trial, and after a jury is impanelled, it is the duty of the court to suspend the trial and to Impanel another jury to inquire into the fact of such sanity. If such jury find the accused to be insane at the time of the trial, it shall then inquire as to his sanity at the time of committing the offence. If such jury tlnd the accused to be insane at the time the offence was committed, that fact is a good defence in bar of further prosecution. If such jury find the accused sane at the time of the trial, then the trial in chief shall proceed. Qruber v. State (\V. Va.) p. ehalf of the- iiilty I)efore> ;e testimony I repudiatod ave the case of the pris- r, uiKler tlie lowiiii^thein judgment is jury. The insane, tlie eople v.Far-^ ion of pres- at the trial, it was ren- ofEence, as offence was at the time he court to ito the fact the time of committing t the time r of further bime of the W. Va.) p. VI-:i{I)iCT, INSANITY .WTEU— Vontinnrd. rpon an in<|uisition of insanity on a motion for a now trial iifttr verdict of guilty of perjury, the qiu'stion is the same as if ruiscd wiicn tiif pris- oner was called to j)iead. The qui-stioii to l)e decidet! is, whether tlu' defendant Avas incapaljle of comprehending the dangerous position in which he was placed, and of taking intelligent measures to meet it. U. S. V. Lnncaster (V. H.), p. 8!I7. If a priscmer after conviction allege why sentence should not t)e pronounced that he is a lunatic, but the judge upon his own inspection is satisfied that the i)lea is false, he may pronounce sentence without calling a jury to try the issue. But aUter where the judge has a iloubt or the case is one of difUculty. Bonds v. State (Tenn.), p. '.tOo. In an inquisition to inquire into the sanity of a man convicted of murder and sentenced to be hanged, and whom it is alleged has, after conviction, become insane, evidence of his insanity at times ijefore conviction is only admissible as explanatory of his acts since. SiHiiin v. state ((ia.), p. OOii. Whether certiorari will lie to review the proceedings before a jury called under the statute to inquire into the sanity of a prisoner alleged to have become insane since his conviction, quaere. Id. Insanity after verdict or judgment, j). ',)i;i. Test in courts of, p. 270. VIRGINIA. Burden of proof on prisoner, p. 521. VOTING TWiCI': AT ELECTIONS. See Lntext. WEST A^RGINIA. Burden of proof on prisoner, p. 521 . WILD BEAST. The wild beast test, p. 200. WITNESS. Sec FOHMKR TiMAI.. it is goocT s the same ). 349. he time of ial of this the courts