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THI
i
*
DEI
Aiitlior of " Th
I'hrasesand
'/'lure ia, perh
i"'^rt hoptUssly ill ,
^. Y '/ ' 1
THE ADJUDGED CAsIs '"■
INSANITY
'f(^:
A«> A
DEFENCE TO CRIME,
WITH NOTES.
BY
v., ■^»-
JOHK D. LAWSOIS^,
•• The Comract/o. CoJ^rcrWers'tr^S"^ '""""'^■"•-
" '/'litre I,
/"<rt IS. perhaps, no gtibject connertetf ,rUh
JST. LOUIS:
F. II. THOMAS & CO.
1.S.S4.
Knier«.l a.n.nlinK t . iiPl ,,f Congress, in tUo y.vir l*M, l,v
John 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<r|,. volti
nie all
■*' ^•'•'"lin.'il charge and li;,s I
justice in America or Great li
>^'<'»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 <rivo
th
given in full; if th
ere
en on
in.
an it}' i
s frivcn.
But
ly that
part relatinjr t
o
contain on the subject will, I think, be fc
'none ^v^.y or another all that the
'>(»()k, therefc
'" the trial of
>■«'. uiil enable the jud
>"ndinthis vol
I'opoit.s
unie
Th
Is
.'inthorities
my cause wheie this <K.fc
go or criminal lawyer to have,
in the court-room at one t
tion such a result could only 1
'•'il>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. <jo.
Ikasley u. State, 50 .\Ia. 149. pp. 577, 74s.
Cited in TidwcII V. State, 70 Ala. 33 (1881).
vii
i>
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) <ONfOI{l»AN(K OF CASEt*.
IX
4
HuMuil '•. Slalu, ;10 Miss. CoO. pp. 4, '2'M, 474, «;I8, N4().
CUM in Weld) I'. State, '.i Tex. (App.) .')iH, oil (1>(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<i'J) ; Fonts v. State, 4 G. Greene, 500 (1854) :
Patterson v. People, 40 Barb. <125 (18(111); Rnssell v. State, 53 Miss. 3(17
(1870) ; State r. Sliippey, 10 Minn. 223 (18(15) ; People ?». McCann, Ki N. V.
03 (1857); Strauder v. State, 11 W. Va. 745; Stuart v. State, 1 Baxt. isii
(1873) ; Zembrod v. State, 25 Te.\. Sl'.t (18(10) ; Farrer r. State, 2 Ohio St.
70 (1853) ; Bradley c. State, 31 Ind.4'.i2 (18(;!i) ; Loeffner v. State, 10 Ohio
St. 5'J8 (1857) ; State ?•. Bartlett, 43 N. II. 224 (18(;i) ; BoswelPs Case, 20
C.ratt. 800 (1871) ; People v. Pine, 2 Barb. 6(i(! (1848) ; U. S. v. Holmes, 1
Cliff. 98 (1858); Cunningham v. State, 5() Miss. 209 (30 Am. Rep. 200)
(187!>) ; 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<t0 ; iord V. State (Ala.), l(j Kep. mj (i883).
Duchess of Cleveland's Case. p. 202.
Dunham's .Vppeal, 27 Conn. 193. p. m.
Kastwood V. People, 3 Park. 25. p. 7(JG.
Kiiiror V. State, 43 Ala. 312. p. 580.
Krwin V. State, 10 Tex. (App.) 700. pp. 2(19, 748, S45, 807.
Kstes V. State, 55 Ga. 31. p. 729.
Cited in Marshall v. State, 59 Ga. 154 (1877).
I'ain V. Com. 78 Ky. 183. pp. 324, 772, 782.
Farrar v. State, 2 Ohio St. 70. pj). 258, 519.
I'arrell v. People, 103 111. 17. p. 871.
Kill's Case, 9 Leigh, 613. p. 915.
IVrrcl] V. State, 43 Tex. 503. pp. 71 1, 746.
^'ipOSOa^r''' ' '''"■ ^^''^'^-^ ''' ^^'"")' ^^"^ - ^t«^^". 1 Tex.
Icm-r's Case, 19 How. St. Tr. 947. pp. (;7, 197, 212, 217.
Cited VI State .Jones, 50 N. H. 3.;9 (1871); Roberts .. State, 3 Ga. 310
(1840 ; R. V. Iladlleld, 27 How. St. Tr. 1282.
Furris v. People, 35 N. Y. 125. p. 44.
Cited in Walker v. People, 1 N. Y. Crim. Rep. 7 (1881) .
Fisher V. People, 33 HI. 283. pp. 372, 413, 451, 454, 520.
^n8-n^T. "• '!T' '"''"""• ''' ^''''^'^ ^'''^^ '■ ^^^''tor, 32 Iowa, 49
(18.1), State .. Kimger, 43 Mo. 120 (1808) ; IIopps .. People, 31 111. 385
-ft
XIV
TABLE AND CONCOUUANCE OF CASES.
Fislu'i- V. Statu, ^j^ Ind. 4;5j. p]). 748, 8tt9.
Flanasian v. People, f)-' N. Y. 4G7; 11 Am. Rep. 7ol. pp. 17, 37, 44, 47, 48, 50,
251, L'5;5, 3(14, 370, 478.
Citfd in Boswcll v. State, 03 Ala. 321, 320 (1879) ; Moett v. People, 85 N. Y.
373 (1880); People u. Waltz, 50 How. Pr. 204 (1H74;; People «. O'Coii-
nell, (12 How. Pr. 230 (1881 ) ; Wrijiht v. People, 4 Nel». 401t (1870) ; Walker
V. People, 1 N. V. C'riiii. Kep. 7 (1881); Hawe v. State, 11 Neb. 537; 38
Am. Kep. 375 (1881) ; I'laniguu v. People, 80 N. Y. 554.
Flaiii'.xan v. People, 80 \. V. 554. p. 879.
Cited in .State v. Kobinsou, 20 W. Va. 7i;i (1883).
Ford V. State, U\ Hep. (;47. p. 874.
Fouts V. State, 4 G. Greeue, 500. pp. 37, 270.
Francis v. State, 7 Tex. (-Vpp.) 5()1. p. 854.
Frccinan r. People, 4 Denio, 9 (47 Am. Dec. 21(i). jip. 17, 38, 44, 75, 99, 234,
240, 255, 27G, 322, 427, 479, 882, 910.
Cited in State v. Joiie.'^, 50 N. H. 309 (1871); Flanagan v. People, 52 N. Y.
407 (11 Am. Hep. 731) (l873j ; State r. Redemeier, 71 Mo. 177 (1879):
State V. Huthifi, 21 Mo. 404 (1855); State v. Felter, 25 Iowa, 07 (1808):
People V. Garbiitt, 17 Mich. 9 (1808); Flouts ». State, 4 G. Greene, 500
(1854); Guajiando v. State, 41 Tex. 626 (1874); State v. Vanu, 84 N. C
722 (1881); Cole's Case, 7 Abb. J'r. (n. .s.) 321 (1808); Willis v. People,
5 Park. 021 (1804) ; Willis v. People, 32 N. Y. 715 ("1805) ; People V. Mont-
gomery, 13 Abb. Pr. (x. s.) 207 (1870) ; U. S.t). Holmes, 1 Cliff, 98 (185S) :
People V. MeCanu, 10 N. Y. 58 (1857) ; Wrightr. People, 4 Neb. 409 (1870) ;
State V. Pike, 49 N. H. 390 (1870); Walker v. People, 1 N. Y. Crim. Hep.
7 (1881) ; Hawe v. State, 11 Neb. 537, 33 Am. Hep. 375 (1881)
FrilliN Case, 22 How. St. Tr. 307. p. 889.
Cited in F'reeman r. People, 4 Denio, 9 (1847).
FMery v. People, 54 Barb. 319. p. 732.
Friery v. People, 2 Keyes, 424. p. 732.
*
Gehrke v. State, 13 Tex. 508. pp. 870, 871, 879.
Cited in Thomas v State, 40 Tex. 00 (1874) ; Webb v. State, 5 Tex. (.Vpp.)
590 (1879).
Gibsvju V Gibson, 9 Yerg. 329. p. 508.
Gibson v. Soper, Graj', 279. p. 313.
Golden v. State, 25 Ga. 527. pp. 727, 707.
Cited in Estcs r. State, 55 Ga. 30 (1875).
Gollihcr V. Com., 2 Duv. 163. p. 752.
Goodwyn v. Goodwyn, 20 Ga. 000. p. 543.
(Iraham v.
Citi-d I
(l,so[
(187
800
t ;raiit v. Til
lirceuboroil
(ireenley v.
(ini')er r. SI
(luairando i\
Guetig ii. Sll
Cited in
(inetiir I'. St
Cited in
^'1 llv'tin V. Sti
Iluile V. Stal
Cited in
(1858)
401, (:
Ohio
V. Stal
Hardy v. Me
Hurt V. Peoi
llatcli V. Sta
Ilawe V. Peo
Cited in
Huiddr.Thi
Heath v. W(
Heistcr v, L
Ueury r. St£
Heuslee v. J
Hewlett V. y
Higgiubothi
Holcomb V.
Ilolsiiibake
TAIJLE AM) rONC01!DANCK OF CASES.
XV
i;r.ili;im v. Com., IC 11. Mou. 587. pp. 372, 373, 383, 489, 517, GOO, i!72.
Cited in Kriil r. Com.. 5 Bush, 3(;3 (18(;it) ; Smith v. Com.,1 Duv. 224.
(18(i4); Statu v. Fultur, 32 Iowa, 41) (1871); Urowu v. Com., 14 Hu.'^h, .".'.tS
(187H); Stiito V. Kiirtlett, 43 N. 11. 224 (1801); Boswcll's Case, 20 Gnitt.
8G0 (1871); Fonl v. State (Ala.), 1(J Kcp. 047 (1883).
(Iraut V. Thompson, 4 Comi.203. p. 7;t"J.
(ireeuborough v. Uudcrhill, 12 Vt. »;04. p. 528.
(ireonley 17. State, (;o Iiul. 141. p. j27.
(iruber r. State, 3 W. Va. C'J'J. p. {)12.
(luaLraiulo v. State, 41 Tex. (;2i;. i). V17.
(iuotifj i'. State, (',3 Ind. 278. pp. 4j(;, 857, 8(17.
Cited in Guetig v. State, Ctl lud. 'J4 (.•J2 Am. Dec. 04) (1379).
(iuutii; V. State, C,C, lud. 94. i)p. 455, 52);.
Cited in Ford v. State (Ala.), Id Rep. ()47 (1883).
Iliiixan V. State, 5 Baxt. G15. pp. 833, 8t;4.
Ilaile r. State, 11 Humph. 15G. pp. 573, G08, G55, G59, GG7, 6G9, GOO, 704, 741, 754.
Cited in Hopt v. People 104 U. S. 131 (1882) ; People v. Rogers, 18 N. V. "J
(1858); State r. Johnson, 40 Couu. 13G(1873); Roberts r. People, 10 Mich.
401, (1870); People v. Robinsoi), 2 Park. 235 (1855); Nichols v. State, 8
Ohio St. 435 (1858); Cartwriglit w. State, 8 Lea, 377 (1871); Lancaster
V. State, 2 Lea, 675 (1879); State v. Robinsou, 20 W. Va. 713 (1882).
Hardy v. Merrill, 5G N. IL 2G7. p. 870.
Hart V. People, 14 Neb. 375. p. 874.
Hatch I). State, G Tex. (App.) 384. p. 853.
Hawe V. People, 11 Neb. 537 (38 Am. Rep. 537). pp. 16, 234, 527.
Cited in Hart v. State, 14 Neb. 375 (1883).
Ikald r. Thing, 45 Me. 392. p. 95.
ikath V. West, 28 N. H. 101. p. 313.
Ihister v. Laird, 1 W. & S. 215. p. 444.
Heury v. State, 9 Tex. (App.) 358. p. 854.
Ileuslee v. State, 3 Heisk. 202. p. 759.
Hewlett V. Wood, 55 N. Y. 634. p. 111.
Higgiubotham v. State, 3 Tex. (App.) 447. p. 839.
Holcomb V. State, 41 Tex. 125. pp. 870, 879.
Holscnbake v. State, 45 Ga. 57. pp. 51G, 850, 869.
M
XVI
r.MU.K AM) CONf'OUDANCK OF f'ASKS.
Ilopps V. IVoplf, ;;i III. ass. pp. 17, ;i7, ;524,372, 411;, 44-t,4(;2,4Uy, 474,47;t, 52G,
oil'.', Stlo, Slid.
Citrdin Kiiij? v. State, H Tex. (App.) 5:A (1880); Clmso r. People, 40 111.
3.'.2 (IKCi;); State v. Feller, ;{2 Iowa, 4!i (1S71); iVoplu v. (iarhiitt, 17
Mieh. Jt (IHCH); Straiuler v. State, 11 W . Va. 745; Statu w. Crawfonl, 11
Kas.;:2 (187.'i); BoswcH's Case, 20 Gratt, SdO (1S71); State u. Klliiiier, 4;i
Mo. 127 (IHdM); \Vriyht^>. 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 <?.
People, ;tl 111. ;i8,-, (18(!;5); Straiuler c. State, 11 W.Va.74:>; 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<J5. p. 801.
Pierce r. .State, 13 N. H. 630. p. 3111.
Piersou V. State, 12 Ala. 1411. p. 578.
Pius,' V. State, 43 Tex. 108. p. 871).
i'i£t;nan n. State, 14 Ohio, 555. pp. 008, 007, 008, OHO, 0112, 0I)!>, 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<l, (J;i,), 704, 742, 7.18, 705.
''4m a^'p^'T'^/ '.''""'■ ''' ('^'"^>= ^^"^--^^ -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<!2) ; People v. Robinson, 2 Park. 235 (1855) ; State v. Tatro, 60
Vt. 483 (1878).
R. V. Monkhonse, 4 Cox, 55. p. 763.
R. r. Moore, 3 C. & K. 310; 10 Jur. 750. pp. 000, 704, 742, 705.
Cited in Roberts v. People, 19 Mich. 401 (1870) ; People v. Robinson, 2 Park.
235 (1855).
R. c. Offord, 5 C. & P. 108. pp. 08, 107, 219, 235, 240, 250, 427, 480, 553.
Cited in State v. Jones, 50 N. II. 300 (1871) ; State v. Redemeier, 71 Mo. 177
(1870); State v. Windsor, 5 Harr. (Del.) 512 (1851); Choice v. State, 31
Ga. 424 (1800) ; Roberts v. State, 3 Ga. 310 (1847) ; State v. Bartlett, 43
N. II. 224 (1801) ; R. v. Townley, 3 F. & F. 839 (1802) ; People v. Waltz,
50 How. Pr. 204 (1874) ; People v. Pine, 2 Barb. 5(i6 (1848) ; People v.
Montgomery, 13 Abb. Pr, (U. S.) 207 (1870) ; U. S. v. Holmes, 1 Cliff. 98
(1858).
R. -■. Oliver, p. 214.
Cited in R. v. Hadfleld, 27 How. St. Tr. 1282.
R. V. (jxford, 9 C. & P. 525. pp. 08, 00, 74, 90, 142, 219, 225, 320, 345, 454, 891.
Cited in State v. Jones, 50 N. H. 309 (1871); State v. Felter, 25 Iowa, 07
(1808); IIopps u. People, 31 111. 385 (1803); People v. Finley, 38 Mich.
482 (1878) ; State v. Spencer, 21 N. J. (L.) 106 (1840) ; R. v. Townley, ;'.
F. & F. 839 (1802) ; U. S. v. Holmes, 1 Cliff. 08 (1858) ; State v. Pike, 49 N.
H. 309 (1870) ; Freeman v. People, 4 Deuio, 8 (1847) .
I{. r. Pate. pp. 311, 321.
Cited in State v. Pike, 40 N. II. 300 (1870).
K. r. Patrick, 7 C. & P. 145. p. 740.
]{. r. Poarce, C. & P. 007.
R. '•. Pearson, 2 Lewin, 144.
R. r. Pritchard, 7 C. & P. 303. pp. 889, 919.
C:frd in State v. Harris, 8 Jones (L.) 137 (1800) ; Freeman «. People, 4
Denio, 9 (1847).
TABLE AND CONCORDANCE OF CASES.
XXVU
H
n
\i
H,
R,
K.
li
V. RadclifEc, 1 W. Bl. 3. p. nso.
1-. Rennle, 1 Lewin, 7G. pp. 740, 748.
c. Richards, 1 F. & F. 87. p. 224.
V. Richards, 5 C. & P. 318. p. C,27.
V. Rosser, 7 C. & P. 048. p. 529.
V. Ryan, 2 M. & R. 213. p. (i8!).
V. Searlc, 1 M. & R. 75. pp. 21, 879.
C<Y«?m Wobb V. State, 9 Tex. (App.) 50.J (1880) ; R. ,;. Wrmiit. Russ. & Ry.
4do (1821) ; Dejarnotte v. Com., 75 Va. 8G7 (1881 ;.
V. Smith, p. 553.
Citedin Choice v. State, 31 Ga. 424 (1800) .
:. V. Southey, 4 F. & F. 04. pp. 227, 918.
:. c. Stedman, Fost. 292. p. 298.
Citedin Com. v. Moslcr, 4 Pa. St. 204 (1840).
)'. Steel, 1 Leach, 507. p. 918.
'•. Stokes, 3 C. & K. 185. pp. 09, 407, 524, 599.
Cit^ instate v. Joues, 50 N, H. 309 (1871) ; People v. Garbutt, 17 Mich. 9
«7? ' f^^'^'^'V- ^'■'''''' 11 W. Va. 745. Boswell's Case, 20 Gratt. 80,)
(1871) ; U. S. V. Holmes, 1 Cliff. 98 (1858).
i: Taylor, 4 Cox C. C. 155. pp. 407, 408, 599.
Cited in People v. Garbutt, 17 Mich. 9 (1808) ; Straiuler v. State, 11 w Vi
745; Boswell's Case, 20 Gratt. 800 (1871).
.V Thomas, 7 C. & P. 817. pp. 595, 022, 630, 031, 033, 035, 030, 704, 726, 740
<4l.', 703, 700, 707, 788. ' '
Citedin State ^•. Cross. 27 Mo. 330 (1858); Rafferty ^. People, 00 III 118
•If ?«i.?''Sl'r ^T^' '' ^- ^'- ' ^''''^ ' ^'''' "• ^^^Cants, 1 Spears,
oJ3 (1843) ; State v. John, 8 Ired. (L.) 330 (1848) ; State v. Avery, 44 N
1.392 (1802); People v. Robinson, 2 Park. 235 (1855); Boswell's Case,
-0 Gratt, 800 (1871) ; State v. Robinson, 20 W. Va. 713 (1882).
'•• Thomas, 1 East P. C. 417. p. 089.
>■. 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<l. pp. 797, 851), 8(i0.
State ,'. Haywood, Pliil. (N. C.) 37(5. p. 257.
Cited in State v. Payne, 8U N. C. (iO'J (1882).
State y. Henley, 1 Houst. Cr. Cas. 28. p. 514.
State /'. Holme, 54 Mo. 153. pp. 420, 800.
Cited in State v. liederaeier, 71 M-^. 170 (187!)).
State V. Hopper, 71 Mo. 425. p. 15.
State r. Hoyt, 40 Conn. 330. p. 510.
am ..^tate .. Ho,t, 47 Conn. 518 (1880); Kord .. State (Ala.), IG Rep.
State v. Hoyt, 47 Conn. 518. pp. 510, SCO, 805.
State r. Hundley, 40 Mo. 414. pp. 415, 410, 417, 420, 752, 757, 800
C',^.d». State .. Edwards. 71 Mo. 312 (1879) ; State .. Redemeier, 71 Mo. 170
1 'aS-sT in r"^' f ' """• ''-' '•"' ^''''^ ' State .. Hol^e, 54 Mo
■'07 (1875)! ' '• ^''''' '•' '''''■ ''' ^''''^ ' St-te .. Smith, 53 Mo.
State .. Hurley, 1 Houst. Cr. Cas. 371. pp. 231, 727, 748, 700, 707
State .. Huting. 21 Mo. 404. pp. 13, 234, 372, 409, 411, 412, 418, 420. 514, 518,
""aifv'stJ" ''^rV'' ''" '"' ^''''^-' ^''''' '• R-»enieier, 71 Mo. 170
S ate .. McCoy. 34 Mo. 530 (1804); State v. Felter 32 Iowa, 4-
8- ; Strauder. State. 11 W. Va. 745; Boswell's Case, 20 Gratt 8
4U (1870) '■ '''' '' ''" ''' ^''''^ ■• ^'-''^ '■ "»»dley. 40 Mo
State .. John, 8 Ired. (L.) 330 (49 Am. Dee. 31I0). pp. 741, 787, 71.3 857
XXXIl
TABLE AND CONCOllDANCE OF CASES.
Stato V. Jolinsou, 40 Coim. 13G. pp. 270, 510, 603, liO'.t, lUl, M'2, OCT, 754, 8C1.
Cited in Hopt v. Peoplo, 104 U. S. H\3 (1882) ; Statu v. JoliUHOii, 41 Conn. 584
(1874); State v. Tatro, 50 Vt. 483 (1878); Stato v Robinson, 20 VV. Vu.
713 (1882).
Stiito V. Johnson, 41 Conn. 584. pp. 609, •ii!2, 067, 757.
Cited in Ilopt v. People, 104 U. S. 103 (1882); State v. Tatro, 50 Vt. 483
(1878); State v. liobiusou, 20 W. Va. 713 (1882),
State V. Jones, 50 N. II. 30i} (1) Am. Kep. 242). pp. 64, 185, 323, 47'J, 527.
Cited in Wright v. People, 4 Neb. 401) (1870) ; U. S. o. Guitcau, 10 Fed. Rep.
101 (1882); Ford y. State (Ala.), l<i Rep. 047 (1883).
Stale V. Jones, 17 N. W. Rep. 'Jll. p. 877.
State V. Kcath, 83 N. C. 020. p. 727.
State V. Kelly, 57 N. II. 399. p. 85!).
State V. Klinger, 43 Mo. 127. pp. 372, 410, 415, 417, 418, 420.
Cited in State v. Redemeler, 71 Mo. 170 (1871)); 8 Mo. (App.) 10 (1870):
State V. Iloyt, 47 Conn. 518 (1880); State >:. 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. Kotovsi<y, 74 Mo. 247. p. 233.
State V. Kring, 1 Mo. (.•^pp.) 438. p. 851).
Overruled in State v. Kring, 04 Mo. 591 (1877).
Stale V. Kring, 04 Mo. 591. pp 859, 800.
State V. Kring, 74 Mo. 012. p. 858.
State i\ Lawrence, 57 Me. 574. pp. 17, 232, 370, 386, 478, 517.
Cited in Boswell v. State, 03 Ala. 320 (1879) ; Wright v. People, 4 Neb. 409
(1870); Ilawe v. State, 11 Neb. 537; 38 Am. Rep. 275 (1881); State v.
Grcar, 29 Minn. 221 (1882); Ford v. State (-Ua.), 10 Rep. G47 (1883).
State V. Lee, 00 3Io. 107. p. 16.
State V. Mahn, 25 Kas. 182. pp. 232, 527.
State 0. Marlcr, 2 Ala. 432 [36 Am. Dec. 398]. pp. 346, 351, 305, 307, 451, 469,
514.
Cited in S*:aLL n. Brinyca, 5 Ala. 241 (184;!) ; People o. Garbutt, 17 Mich. 9
(1808) ; IIopps V. People, 31 111. 385 (1803).
Distinguished in IBoswell v. State, 03 Ala. 322 (1879).
State f. Martin, 3 Crim. L. Mag. 44. p. 514.
.State r. Maxwell, 42 Iowa, 208. p. 758.
State y. Mcwlierter, 46 Iowa, 88. pp. 102, 324, 517.
Cited in State v. Bruce, 48 Iowa, 530 (1878).
State V. Mullen, 14 ]>a. 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. <i
(1808); O'Brien v. People, 48 Barb. 274 (1807); Patterson c. People, 4'J
Barb. 025 (1800); Walker v. People, 1 N. V. Crim. Rep. 7 (1881),
Ward V. People, 3 Hill, 305. p. 027.
Wariny; v. Wai'lnu', Moore P. C. 341. pp. 82, 315.
TAUI.E AND COXCOKDANCK Ol" CASKS.
XXXVll
Warren v. Coin., 87 Pa. St. 4o. p. SOU.
Wiirrcii I'. Stall', 9 Tvx. (App.) <;i:i. p. SUI.
Wobl) I'. Sttttf, 5 Tc'x. (Ai)p.) o!m;. pp. L'(i!», -'70, 8;;;i, S(M>, 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<jan v. People, 52 N. Y. 4<;7; 11 Am. Rep. 731 .
Test Of Responsibility -Burden of Proof. Walker v. People, 1 N Y Crim
Rep. 7; 2(i Hun, (J7 . . . . ' " .^
40
Same Case (In the Court of Appeal) ....
Test of Insanity - Experts - Delirium Tremens - Intoxication no De-
fence -Burden of Proof. United States v. Mc Glue, 1 Cm-t. 1 . . 54
Xo Legal Test of Insanity. State v. Jones, 50 N. II. 36!>; 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. <!7 . . . . j,.
Uncontrollable Impulse - Insane Delusion -Test of Insanity -Evidence
of Appearance and Conduct. State v. Mewherter, 4(J la. 88 . . . 102
Moral Insanity -Insanity must Directly Cause Crime to Excuse it-Ooin-
ions of Witnesses. State v. Stickley 41 la. 232 . . . " . 108
(xxxix)
xl
TABLE OK CONPEXTS.
lAiu;.
Test of Insanity — rndcrstanUinii' and Will — IJunloii of Proof — I{easoii-
aiile Doiilit — l)rnnkL'nnt.'s.s — llorcditury Insanity — Rooks of Sci-
ence — Export — Compensation. Bradley v. State, '.il Ind. 2'J'2 . . lU
Moral Insanity — Now Trial ou Ground of Newly Discovered Evidence,' —
Dcirroi'S oi Crime. Anderson v. State, 4;! Conn. 51 + : '21 Am. Kep.
ecu !•_'!»
Moral Insanity. Scott v. Com., 4 .Mete. (Ivy.) 227 l;'.t!
Emotional Insanity — Burden of I'roof — Iieasonal)lo Doutit. People v.
Finlei/, .".8 Mich. 4f<2 \in
Moral Insanity Disapproved — Test of Insanity. S/a/c v. CmucZon, 8 Jones
(I..), 40;; 1 u
Moral Insanity — Burden of Troof — Sanity Presumed to Continue. L>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<X\TK\TS.
45
Virprinia
4f;
West \'ir;riiiia ....
47.
English Rule
48.
Burden of Proof mi Prosecution — Third Tlicory
49.
Illinois ....
50.
Indiana ...
51.
Kansas
62.
Michigan
68.
Mississippi
64.
Nebraska ....
55.
New Ilampshin'
6(;.
New York
67.
Tennessee
58.
Texas .
xiiii
PAGE.
. 521
. 521
. 522
. 525
. o2(J
. 02(5
. 527
. 527
. 527
. 527
. 527
. 52!)
. 531
. 632
CHAPTER 111.
DlUXKKXNKSS.
Drunkenness no Excuse - Burden of Proof. McKemiev. State,2i> 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&er<s v. People, 10 Mich. 401 . .087
Intoxication — Intent — Larceny — Instructions. People v. Cnmmins, 47
Mich. 334 695
Intoxication — Voting Twice at Election — Intent — Drunkenness No Ex-
cuse. State Welch, 21 Minn. 22 097
Voting Twice at ■'^''^ Jon — Intent — Drunkenness Relevant. People v.
Harris, 29 Cal. 078 701
TABLK OF CONTENTS.
xlv
Intoxication -Relevant on Question of Intent .n.i Malice. KrW, .f Litu'.y''''
V. Stale, ;; S. & M. 518 .
70(1
Intoxication -Intent -Larceny. Wentz Stale,] Tex. CAi)p.) ;5.j 708
'"^"'iri?^;^'"'"" "' '''''"'" '° ''"'"'"' ^"'■"■"^•- ^'^«"« - ««'^ '
Intoxication -Provocation -l)e!,n'ee of Crime. Keenau v. Co.,., 4^ P. ' "
ot. 00 . . , _ ? i .
"'""'^liorsS !^''''."^ Counterfeit Bill - Knowledge. Pig^nan v. ,S-*«.e, u' '^
Drunkenness -Provocation -When Evidence of Intoxication to l^eCn- "
bulereU. State v. McCants, 1 Spears, ;!84 . . -.,^
SiTTiox 50
People. V. Robimoii
NOTES.
. Drunlvcnness no Excuse for Crime
00 Intoxication no Excuse. Fiieni v. People
ib) Drunkenness -Homicide -Insanity. People v. liobinson
in the Trial Court ...
(c) Drunkenness — Homicide — Insanity
on Appeal
(d) Voluntary Intoxication. State v. Thompson
(e) Perjury — Intoxication no Defence. People v. Willey
(/) Blasphemy — Intoxication no Defence. Penple\ Porter
(fir) Arson - Intoxication no Defence. People v. Jones
<iO. Does Drunkenness Aggravate an Offence
(Jl. Exceptions to the Rule ....
02. Insanity Produced by Intoxication
03. Degrees of Murder - Premeditation and Deliberation
04. Relevant on Question of Intent
05. Drunkenness — Knowledge ....
00. Drunkenness- Relevant to Explain ThrcatL
07. Drunkenness- Relevant on Question of Provocation
(.8. Drunkenness — Relevant on Question of Self-Defence
00. Drunkenness Created by Another to Cause Prisoner to
Perpetrate the Criin^' . .
738
739
743
744
745
745
745
747
747
754
758
705
700
707
707
7(;8
CHAPTER IV.
liLEPTOMANIA, SOMNAMBULISM, KTC.
Kleptomania - Charge must be Specially Directed to Defence Made
Looneij v. State, 10 Tex. (App.) 5'>0
.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<i the nature of ins act, or of
his ability to distinguisli Iietween right and wrong, and of his ability to understand Ibat
he will be liable to ])unishment if he commits it.
4. Act Must be the Result of Insanity. — Though a iiaity l)e jiartially insane, yet ho is
responsible for his criminal acts, unless it appeal- that he was prompted or in^iigated
by his madness to perpetrate such act.
5. Barbarity of Act no Presumption of Insanity. —If the homicide charged is proven
in the opinion of tlic jury, the barbarity of tlie act affords no legal presumption of in-
sanity in the accused.
Ennou to Yazoo Circuit Court, IIexky, J. Young C. Bovard, the
plaintiff in error, was indicted in tlie Circuit Court of Y'azoo County
for the murder of liis wife, on the 20th da}- November, 1855, and wa*
onvicted. Tlie defence relied on was, that the act of homicide was
committed whilst the prisoner Avas insane.
The opinion of the court contains the facts of the case.
John M. Moore, for plaintiff in error, cited and commented en
Com. V. JRogers,^ State v. Gardiner,- State v. Spencer.^
D. C. Glenn, Attorney-General, argued the cause orall}'.
Sjiitii, C. J., delivoi'ed the opinion of the court.
The plaintiff in error was indicted and tried in the Circuit Court of
Yazoo for the murder of his wife. No question, whatever was raised
as to the fact of homicide, or the agency of the accused in the com-
mission of the deed. The defence was placed solely on the ground of
insanity, and the jury found the prisoner guilty of the charge. A motion
was made to set aside the verdict, and for a new trial. The grounds
upon which the motion was based were, first, misdirection in the
charges to the jury ; and, second, that the verdict was contrary to law
and evidence. The same reasons are now urged as a ground for revers-
ing the judgment.
In support of the first ground it is insisted that the third, fourth, and
fifth instructions for the State are erroneous, inasmuch as they " do not
properly and fully explain the legal consequences of insanity, and lay
down rules for the guidance of the jury, under which the accusefl
might be convicted, although proved by the evidence to have been in-
sane at the time the alleged offence was committed."
The only questions which could properly arise upon the evidence be-
uvidence
Idefence,
' 7 Mete. 500.
" Wright (Ohio U.) 302.
^ 21 N. J. (L.) 424 ; 1 Greenl. Ev., Par 42 ;
Ray, Med. Juris. 413; ICopeland, Dictionary
of Medicine, 572; 1 Cycloiiajdia of Practical
Medicine, 587.
6
THE LEGAL TK8T OF INSANITY.
Bovard v. State.
fore the jury were, first, whether the accused labored under a mental
derangement of his moral and intellectual faculties ; second, whether
he was affected with partial mania, accompanied with a delusion which
was connected with, or embraced in, the circle of its operation, the act
with which he was charged ; and, third, if, by the proof, he was shown
to have been either generally or partially insane, whether the insanity
was of such a character as to absolve him from responsibility as a
moral ngent.
A person, in the estimation of the law, to be capable of the commis-
sion of a crime, must have intelligence enough to ha've a criminal
intent and purpose ; and if his mental capacity is either so deficient
that he has no conscience, nor will, nor controlling mental power over
his actions ; or if, through the access of mental disease, his intellectual
power is, for tlie time, completely suspended, he is not to be regarded
either as a moral agent, or punishable by the law for his acts.
Cases of insanity of such extreme character as these are not easily
mistaken. And it is not to be controverted that the prisoner, as shown
by the evidence, was not so totally deprived of conscience, will, or men-
tal control over his actions, or that his intellect and capacity were not
so utterly deficient as to be incapable of entertaining a criminal pur-
pose. But, in cases of partial insanity, where the mind, though capable
of memory, of reasoning, and of judgment, is clouded and weak-
ened, or so perverted and influenced by insane delusions as to be com-
pelled, as it were, to act under false impressions and influences, the
rule of law, as it is now generally understood, is laid down by Chief
Justice Shaw as follows: "A man is not to be excused from responsi-
bility if he has reason and capacity sufficient to enable him to distin-
guish between right and wrong as to the particular act he is then doing,
a knowledge and consciousness that the act he was doing is wrong and
criminal, and will subject him to punishment. In order to be responsi-
lile, he must have sufficient power of memory to recollect the relation
in which he stands to others, and in which others stand to him ; that
the act he is doing is contrary to the plain dictates of justice and right,
and injurious to others, and a Aiolation of the dictates of duty. On
the contrary, although he may be laboring under partial insanity, if he
still understands the nature and character of his act and its conse-
quences; if he has a knowledge that it is wrong and criminal, and a
mental power sufficient to apply that knowledge 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 sufficient to exempt him from responsil)iIity
for criminal acts."'
I Com. V. Rogeiii, 7 Mete. ."iOO.
BOVAHI) r. STATE.
Acts of Prisoner Showing Insanity.
t easily
3 shown
or tnen-
rcre not
lal pur-
capable
weak-
e corn-
ices, the
y Chief
sponsi-
distin-
doing,
ng and
sponsi-
elation
; that
right,
, On
,if he
conse-
, and a
and to
Ihroent ;
sibility
Without quoting the instructions to which exception is taken, or
noticing them in a more special manner, it is sufficient to state that tlie y
contain, in very distinct and intelligible terms, the rules Itid down bv
the learned judge in the charge from which we have quoted above. In
our opinion, therefore, there was no error committed in giving the
instructions whicli were requested in behalf of tlie prosecution. Nor
io we tliink there was error in withholding either of tlie instructions
which were requested by the prisoner and refused by the court.
The remaining ground upon which reversal of the jud<rment is claimed
is, that a motion for a new trial was improperly ruled. The question thus
presented must, of course, be determined by the evidence submitted to
the jury, and we will proceed to notice such of the facts established by
the testimony which tend to i)rove or disprove the insanity of the
accused.
Tlie homicide was committed on the night of the 20th of November,
1855 ; the prisoner was for several j-ears previous to that date a man of
intemperate habits ; some eight or ten days before the deed was com-
mitted he was very much intoxicated, but it was supposed that he had
abstained entirely from drink for the five or six days immediately pre-
ceding the 20th of November. On the 19th he had been at Benton,
which was four miles distant from his place of residence ; and on his
return he was met by Dr. Woods, who had previously been his physician ;
lie complained of being unwell ; he said his right arm was dead, and
he could not use it ; he complained of soreness about the shoulders an;l
neck. Dr. Woods, from a slight examination, thought it might be
paralysis arising from intemperance. He was rational, and the doctor
observed no symptoms of delirium tremens or any indication of mental
derangement of any description about him. On the same day he was at
Mr. Qiiini's, dined there and ate more heartily than usual ; Mrs. Quini
observed no wildness in his appearance at dinner ; he fre<]uently changed
the subject of conversation, acted strangely, and walked more rapidly
than usual. He vent away and returned some time after dark ; he then
iippeared to bo under some delusion connected with the subject of
religion ; he said he had got reUgion, that his wife had got religion, and
WHS tlie happiest woman in the world ; he had come back to tell Quini
and wife of it ; he wished them to get religion, also ; and insisted upon
their getting " down and going through the religious performance;"
he prayed, preached, and said he had turned a preacher. He fre-
quontly ran out into i he piazza and seemed to be watching for some-
thing; said that they would get religion in a few minutes; that he saw
it Coining down from heaven.
THE LEGAL TEST OF INSANITY.
Bovard v. State.
These acts and dcchuations, and many others of a similar character,
and quite as frantic and absurd, if they were not simnhited, undoubtedly
show that he was afflicted witli partial insanity, attended with delusion,
on the subject of religion. HeleftQuini's and returned again the same
nij^ht ; the weather was cold, and he went back in his shirt and drawers,
without hat or shoes ; and behaved in the same way. He was persuaded
to go to bed, and was supposed to sleep ; he remained quiet for two
hours ; he then got up and wentawaj'. On the following day, the 20th
of November, at eight o'clock, he returned to Quini's and deported
himself much in the same manner that he had on the previous night.
He asked for breakfast ; said that he had eaten nothing that morning ;
that breakfast was ready when he left home, but that he could not w^it.
He sat dov.n to the table and ate as usual. On the 19th or 2ntli he
spoke of his " lame arm," and said that it had got well. From Quini's,
after having remained an hour, he went to the graveyaiKl and assisted
in putting down a post; a person being then engaged in paling it in.
He was rational, and, while there, evinced no indication of mental
iilienation. At home, in the evening of the 20th, his conversation and
conduct indicated that he was under the same delusion under which he
appeared to labor in the morning and on the preceding night. He was
kind and affectionate to his wife, and manifested great solicitude on her
account. He showed no dislike or hostility to any one ; did not appear
to be suspicious of any one ; and although he said they would all be
dead in a short time, he did not appear to be alarmed on that account.
On the 21st, the day following the commission of the deed, he ap-
peared to be in full possession of his intellectual faculties ; he confessed
his crime, described its atrocity in the strongest terms, expressed great
remorse at having committed the deed, but declined to state his motive
for its commission. Late in the evening of that Ciny he was visited by Dr.
Holmes. The doctor was under the impression that he was asleep when
he first went in ; his pulse was natural and he thought that the accused
was not laboring under any disease whatever. He had known the
accused for many years, and had never seen him with the svmi)tom3 of
mania a potu upon him. On the occasion of this visit, he saw nothing
about the accused which indicated insanitj'.
In reviewing the evidence in the case before us, it is impossible to
come to the conclusion that the plaintiff in error, at the time he perpe-
trated the crime, was affected with a mental malady which involved his
entire intellectual faculties ; and there are very cogent reasons for re-
jecting the hypothesis, that his affection was that of delirium tremens.
According to an approved writer on the medical jurisprudence of
insanity, this disease — de'irium tremens — at its approach is generally
DKLIRIUM TKEMKNS MANIA A POTU.
9
I I
Symptoms of the Disease.
;d great
aiotivo
by Dr.
accused
iwn the
toms of
jible to
perpe-
ved his
for re-
cmens.
Mice of
nerall}'
atlended, amongst other symptoms, with disturlH'd sU-op and impaired
appetite ; after the symi)toms have continued for two or three days,
they increase in severity, the patient ceases to sleep aUogetlier, and soon
becomes delirious. At first the delirium is not constant — the mind
wandering during the night — but during the day when its attention is
fixed, capable of rational discourse. It is not long, liowever, before it
becomes constant, and constitutes the most prominent feature of the
disease. This state of watchfulness and delirium continues three or
four days, when, if the patient recover, it is succeeded by sleep, which
at first appears in uneasy an irregular naps, and lastly in long, sound
and refreshing slumbers.'
"Almost invariably," says the same author, "the i)atient manifests
more or less feelings of suspicion and fear, laboring under continual
apprehension of I)eing made the victim of sinister designs and prac-
tices." " One of the most common hallucinations is to be constantly
seeing devils, snakes, vermin, and all manner of unclean things about
him, and peopling every nuok and corner of his apartment with these
loathsome objects. The extreme terror which these delusions often
inspire, produce in the countenance an unutterable expression of
anguish, and frequently impels the patient to the commission of suicide. ' '
Assuming this to be a correct description of the course, and con-
stantly attendant symptoms of mania a potu^ it is dilflcult, if not
impossible, to believe that the accused labored under that disease.
The disease, if it ever existed at all, did not manifest itself until the
afternoon of the 19th of November; for on that day, at dinner, none of
its peculiar and marked symptoms were observable ; on the contrary,
he was neither irrational nor delirious, and ate more heartily thaa
usual. On the following morning, although, if we judge from the
evidence in relation to iiis conduct during the night, his malady had
made most rapid progress, he ate his breakfast with unimpaired
appetite, and went, in compliance with his pn^mise, to assist in putting
ail inclosure around the graveyard ; and whilst there disclosed no indica-
tion of irrationality or symptoms of delirium tremens. These facts are
irreconcilable with the idea that, if he labored under any mental
affection, it was that of delirium tremens.
The total absence of almost every marked peculiarity usually attend-
ant upon this disease, and particularly the short continuance of the
attack, and the complete restoration of the accused to his natural
sound and healthy state, within less than thirty hours after its commence-
ment, render this coiiclusion unavoidable.
> 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<l he nuule up ids mind, while sitting on the stone, to get his knife;
that he titen went lionu' and got it; that he then went to his wife's
house and entered the front door and met his little girl and asked her
where her mot lier was, and upon l)eing toM that slie was in the yard,
he went into tlie yard and saw his wife at the wash-tub, and asked her
if that was true, meaning if she inteudi'd to marry, ai d upon receiving
no reply, defendant said he "then gave it to her" and " tlui'W it
away," meaning the knife, and then went up Spriu-e Street to Fourth
Street. 'J'liese facts sutliciently characterize the brutal nature of the
act, and vii'wing tlie homicide in the light of them alone, they unques-
tionably establish the crime of murder in the first degree.
The only defence relied upon at the trial was that of insanity. This
defence was sought to be cstablishetl by showing that defendant had
been addicte 1 to strong drink for a number of years ; that previous to
18(io, he lived in radiu-ali, Kentucky, and while there had drunk to
such excess as to produce, on several occasions, delirium tremens; that
he had attempted, wliile in Kentucky, on one occasion, to jump out of
a two-story window, on another occasion to poison himself, and on an-
other attempted to kill a man with a knife, which he was trying to take
from him ; that when sober he was peaceable and quiet ; when drunk,
dangerous and quarrelsome ; that he removed to St. Louis in 18G5,
wliere he continued his habit of drinking. As to the extent to which he
indulged in his habit after his removal to St. Louis, the evidence is
conflicting, some of the witnesses stating that he indulged in it in 187G
to such an extent that he became very much depraved and on the verge
of delirium tremens, on which occasion he cut hi ^ wrist and said he was
going to kill himself ; that in 1878 he was i)rostrated from the heat;
that about that time and afterwards, he would not rest well of a night,
would often be I'estless and com|.lain of headache and burning sensa-
tion in his stomach, and request not to be leff. alone at night. AH the
witnesses concur in saying that during his r sidence in St. Louis, he
was never unwell excejjt as above stated, and never unable to attend to
business, though during the time he was often drunk. As to the con-
dition of defendant at the time the homicide was committed, all the
witnesses who saw him immediately after the occurrence concur in say-
TEST OF INSANITY.
18
}(\ that:
1 never
lant siitd
; trcutt'd
)en told,
luebody,
is knife ;
is wife's
sked lier
lie yard,
ski'd her
receiving
tlirew it
Fourtli
e of the
unqucs-
y. This
lunt liud
ivious to
Idrunk to
ns ; that
p out of
id on au-
to take
drunk,
n 18G5,
Ivhich he
deuce is
in 187G
lie verge
|l he was
I heat:
niglit,
sensa-
jAU the
puis, he
[tend to
|he cou-
lall the
[in say-
Instructions as to, Approved.
ing tiiat he was not drunk, but appeared to be sober, his own admission
being that he had drank twice on the day of the lioniicide. Upon tlic
close of the evidence, defendant's counsel put a hypotlietical case to a
physician who was an admitted expert on the question of insanity, lo
which the physician answered " that he would cull it simply a case of
aleholism ; that he could not define it as a case of insanity; that the
case put was one where the responsibility of the indiviiUial is modified
by the condition of his mind. This modified ros[)ousibility is all I could
predicate of this case. It would eoine under the head of nervous
cases, where an individual, though sane, would be less responsible than
many who are insane." The State also put a hypothetical case to an-
other physician, also an expert, embodying substantially the same facts,
who answered " that he saw no insanity in the case."
Tiie defendant asked iiiui! instructions, of which the court gave num-
bers one and seven, and refused the others, and in so doing it is in-
sisted by counsel that the court committed error. Instruction number
two, which was refused, asked the court to direct the jury in substance
If they believed defendant, at the time of committing the homicide, was
incapable of distinguishing right from wrong, or of exercising control
or will power over his actions, or was unconscious at times of the nature
of the crime he was about to commit, they would find the defendant not
miilty. In an instruction given bythe court, of its own motion, the
jury were told that if, at the time the stabbing occurred, defendant was
so insane tha»t he could not, and did not know or comprehend the nature
or character of the act, although he may have committed it, he Is not
guilty ; that to entitle defendant to an acquittal on the plea of insanity,
his mental faculties must have been at the time the homicide was cora-
iTiittcd, so perverted and deranged as to render him incapable of dis-
tinguishing between right and wrong, and of knowing the right from
the wrong of that particular act. The instruction given by the trial
judge is in strict conformity to the ruling of this court in the cases of
the Baldioin v. State,^ Huting v. State,^ and State v. Redemeier.^
This instruction covered the ground as to insanity, and no error was
committed in refusing instruction number two. Besides this, I cannot
see anything in the facts of this case, transpiring at the time the act
was committed, upon which to predicate an instruction telling the jury
that if they believed defendant was unable to exercise control or will
power over his actions when he committed the act, they would acquit.
Instructions numbers three and six were properly overruled, forthe same
reasons whicli apply to the second instruction. In all cases where insanity
> 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 <!rror to tliis
(•oiirt.
Tiu! only error relied upon i.s tlie followinj^ iustnietioii, j^iven on lielialf
uf the State: "The hiwrt'<iuirert soint'thinj^ morn than occasional oddity
or liypocondriato exempt the pcri)etrator of an offence from its punlNli-
iiient. If the defenihmt was in the possession of reason, thought,
intent, a faculty to tlistingnish the natures of actions, to discern the dif-
ferences between moral {jjood and evil, then tin; fact of tlie offenci; and
tlie condition of mind above described, proved beyond a reasonai)lc
doubt, your verdict should l)e guilty."
The court, prior to giving the above, had instructed the jury fully
upon all the questions raised by the indictment, and also upon the (pics-
lion of insanity, and the instructions so given are certainly favorable to
tlic accused. The instruction complained of in el'fe(;t says to the jury
tli:it mere oddity or hypocondria is not insanity, iiud if the accused, at
the time of C(Mnmitting the; offence was in possession of reason, and was
able to discern right from wrong, he would be rcs|)onsii)le for his
actions.
Webster defmes the word " insane "as " exhibiting ansoundness of
mind; mad; deranged in mind ; delirious; distracted."
The question here involved was before this court in Wriyht v. People.^
Tlic court say : " It is a familiar rule of the common law that to consti-
tute a crime there must, in almost all cases, bo first, a vicious will, and
secondly, an unlawful act consequent upon such vicious will.'-^ And
where an individual lacks the mental capacity to distinguish right
from wrong, in reference to the particular act complained of, the law
will not hold him responsible. Flanagun v. People,^ Stute v. Lart;-
nnce,^ Com. v. Ileath.^ This mental incapacit}'^ may result from vari-
ous causes, such as nonage, lunacy or idiocy, and whenever interposed
as a defence, the inquiry is necessarily to the single question of the
ability of the accused to distinguish between right and wrong at the
time of committing the act complained of." But even where insanity
is shown to exist, and whether it be general or partial, the rule seems
to be substantially as charged by the court below, that if there remains
luU'gree of reason sufficient to discern the difference lietween good and
evil, at the time the offence was committed, then the accused is respon-
sible for his acts." "
' 4 Neb. 407.
2 I!i()om& Hadley Com. (Am. c.l.) 'i'XK
^ •'■'. X. Y. 41)7; «. c. 11 Am. Kei). 731.
* 57 Me. 574.
•• llUray, 303.
•■' Freeman v. People, 4 Denio, 28.
' IIopps V. I'eople, 31 111. :j^5.
18
THE LEGAL TEST OF INSANITY.
l)oj;iriK'tte r. Coininonwealth.
"Wo adhere to the rule hvid down in tlio ahm'e (>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\vle<Ige that it is wrong and
criminal, and a mental power sullicicnt to apply tliat knowledge and to know that if ho
does the act lie will do wrong and receive punishment, and possess withal a will sulli-
cicnt to restrain the impulse that may arise from a diseased mind, sudi partial insanity
is not snlllcient to exempt him from responsibility to the law for the crime." Held,
correct.
2. Irrelevant, Confusing, and Misleading questions based on the defci'ce of insanity
shoulil not be permitted.
3. Burden of Proof. — Insanity as a defence to crime must be proved to the satisfaction of
the jury; it is not necessary that ■•.•• jury shall be satisfied of the insanity of the pris-
oner beyond a reasonable doubt.
Al the August term of the Ilastiniis Court of the town of Danville,
James T. Dejarnette was found guilty of the murder of his sister
Mollie, committed in a iiouse of ill-fame in said town, where she was
living as an inmate. The oiil}- ground of defence was insanit}-.
CabeH & Peatross and Withers & Barkfidale, for the piisoner.
Tiie Atlornoji-Gpnend, for the Commonwealth.
Stai'i.ks, J., delivered the opinion of the court.
(Omitting other rulings. )
The fifth bill of exceptions states that whilst Dr. T. "W. Keenc, a
medical witness for the accused, was explaining to the jury the differ-
once between moral and intellcctiml insanitj', and giving the opinions of
writers thereon, the presiding judge stopjied the witnes?,, and in the
ir souml
and tlie
irmed.
F PROOF.
COMMKNTS BY COLUT ON KV11)1;N( K.
rj
81.
, the defence
iilthougli llio
le niilure and
wrong imd
low tliiil if !h'
a will sulli-
tlal insanity
me." neld,
•e of insanity
ilisfaction of
of the pns-
Danvillo,
his sister
•e she was
iKccnc, a
tlie (Uffer-
Linions of
tul in the
Questions to Experts.
presence of the jury, said to the Commonwealth's attorney : " Is it pos-
sible, sir, that you sit there and permit such testimony as that without
objection?" To which the Coinmoiiwealtli's atloriiey replied, "Yes.
.sir, lam willing to hear it all." When the court replied, ''I will not
stop it unless you object. " To which question and interference of the
court and the manner in which it was done, the accused excepted.
In view of the fact that a new trial is to be had on other grounds,
and inasmuch as the same matter is not at all likely to arise again, it is
not deemed necessary now to decide whether or net the interference and
remark of the presiding judge constitute error sulHcient for the reversal
of the jmlgnient, more especially as a decision of tht,u point involves
the necessity of p;issiug ui)on the relevancy of the testiuiony of the wit-
ness. But to prevent any possil)le misa|)prehension in the future, it is
proper to say that, in the administration of justice, it is of great import-
ance that the court should leave to the juiy exclusively the consideration
of tlie facts.
In this State, all expression of opinion, or comments, or remarks upon
the evidence which have a tendency to intimate the bias of the court,
with respect to tlie character or weight of the testimony, particularly in
criminal cases, are watched with extreme jealousy and generally consid-
ered as invasions of the province of the jury. Nothing of the kind was,
of course, intended by the learned judge of the court below. His re-
mark was, no doubt, prompted by a feeling of some warmth at what he
considered improper testimony given to the jury, without objection from
the prosecuting attorney.
The Cth, 7th, 8th, Oth, 10th, 11th, 12th, 13th, 1 1th, 15th, and IGth
hills of exception may be considered together. In one of them Dr.
Thomas "NV. Keene, a, witness for the accused, is asked the following
question: " Is it not recognized by the highest authority in the medical
profession, that a person may commit an act, under the inlluence of a
delusion, because he believes it to be right and his duty? " In another
the witness is asked, "How intellectual insanity affects a man?" and.
'■ How moral insanity affects him? " In another, " What is the differ-
ence between inti'Uectual and moral insanity? " In another, " What is
latent or concealed insanity, and how does it affect a man?" In an-
other, " What is transitory insanity? " In another, "What is insane
impulse?" In another, "What do medical men mean by insane tem-
perament?" In another, " Whau circumstances would be likely to
develop Litont inherent insanity? " In another the witness is asked to
jgivi' the symptoms of mornl insanity. In another he is asked, " What
iIh insanity? " All of these questions were excluded bj' the court.
20
THE LEGAL TEST OF INSANITY.
Dt'jarnette v. Commonwealth.
Neither of tliose bills of cxcoptions set forth any of the testimony
adduced on the trial to show the relevancy of these questions to the
matters in is^sue. The}' extend over an almost unlimited field of inquiry,
involvin<^ a discussion of the laws of insanity in all its eonii)licated and
mysterious phases. Their only effect was to consume the time and
attention of the court, and to mislead and confuse the mind of the jury
with perplexing discussions upon the symptoms of the vaiious forms of
derangement as devcloi)ed in the human mind. We are, therefore, of
the opinion that the Corporation Court did not commit any error in ex-
cluding the questions and answers thereto from the jury.
At the same time, we arc not to be understood as saying that neither
of the questiims set forth in these bills of exception would be proper
under any state of circumstances. In the progress of a trial facts may
be, and often are, developed which render it proper for the medical
witness to describe the s3'mptoms of a particular disease, mental or
physical, which may be the subject of investigation.
It is utterly imi>ossil»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, '"<e propounded to the medical witness. In all inquiries re-
lating to insanity, every reasonable latitude should be allowed in tne
examination of witnesses, however false or unfounded the court may
consider the defence. It is always required, however, that parties com-
plaining of the exclusion of proper testimony shall state in the bill
of exceptions so much of the evidence as to show the pertinency and
relevancy of that which is excluded. Without this, as a general rule,
it is impossible for the api)ellate court to say that any error has been
committed to the prejudice of the party complaining. Hut to prevent
any misapprehension upon a future trial, it is proper to state that the
question set out in the thirteenth bill of exceptions may be properly asked
a medical witness qualified to testif}'^ on such a subject. That question
is as follows: " Sui)pose a man had inherited a predisposition to insan-
ity, would great mental anxiety, loss of property, or the honor of one's
family, and losses of other kinds, be likely to develop the disease? " It
has been often held that a medical witness, although he has never seen
the patient, after hearing the evidence of others, may be called to prove
the general effect of the disease described by them, and its probable
consequences in the part'cular instance.
In Wright's Co.se ^ it was held, by all the judges, that a witness of
medical skill might be asked wliethcr, in his judgment, such and such
' R. & U. 156.
testimony
lis to the
f inquiry,
catcd and
time and
f the jury
i forms of
irefore, of
■ror in ex-
lat neither
be proper
facts may
e medical
mental or
ny rule on
ions may,
quirics rc-
?ed in ttie
court may
ties com-
the Dill
nency and
ral rule,
has been
,0 prevent
that the
rly asked
question
to insan-
r of one's
ise?" It
ever seen
to prove
probable
ntness of
and such
DUTY OF COURT TO INSTRUCT .Uin'
21
Test of Insanity.
appearances Avere symptoms of insanity, and whether a lonj^ fast, fol-
lowed by a dn uglit of strong liquor, was likely to produce a parox-
ysm of that description.!
We are thus more particular in considering the question set out in the
thirteenth bill of exceptions, because, by reference to another liill of
exception , ' " ai)i)ears that evidence was adduced on the trial tending to
show thr -> -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(litate<l. Malice is, of course, a neces-
sary ingredient in the crime of murder, and the law infeis it, where the
killing is deliberate and premeditated. The statute, however, in defining
the offence of murder in the fiist degree, does not use the W(.rd mali-
cious, for the simi)le reason that malice aforethought is, in such cases,
it conclusion of law. To have instructed the jury, therefore, they
must be satisfied the killing was malicious, was to add to tlie statutory
definition of the offence, and to beget the confusion in their muids of
supposing they must find the existence of malice, as a fact, where it
was necessarily implied by law.
The second and third instructions are as follows : —
2. The court further instructs the jury that in weighing the evidence,
as to the malice, deliberation, and premeditation of the prisoner, they
should take into consideration the condition of the prisoner's mind at
the time of the receipt of the intelligence which led to the homicide,
and the effect which the sudden intelligence of great calamity or over-
whelming shame would have ui)on his mind.
3. If the jury believe, from the evidence, that at the time of the kill-
ing, the i)risoner, by reason of a predisposition to insanity, inherited
from his ancestors, developed by the information of his sister's livino-
in a house of ill-fame, was not in a frame of mind to deliberate and
premeditate, then the killing would not be munler.
Both these instructions are of so vague and ambiguous a character,
it is very difficult to determine what precise proposition they were
•ksigned to assert, or what tests they were intended to prescribe as a
24
THE LEaAL TEST OF INSANITY.
Dejarnette v. Commonwealth.
measure of criminal responsibiUty. Tliey were calenlated to misleati
the jury, and were properly refused. At the same time there are,
doubtless, cases in which, whilst the prisoner may not be insane, in the
sense which exempts from punis:;ment, yet he may be in tliat condition
from partial aberration or enfeeblement of intellect, which renders him
incapable of the sedate, deliberate, and specific intent necessary to
constitute mnrder in the first degree. These are questions for the jury,
and not for the court.
As has already been stated, it is not possil)le, in the nature of things,
that the court can lay down any ab.^ti-act rules: with which to measure
the minds of men or to determine the extent ot their criminal responsi-
bility in cases of alleged insanity. ^
The fourtli instruction declares that the prisone.- is to be acquitted on
the ground of insanity, unless the jur}' are satisfied beyond a reasona-
ble doubt that the killing was not produced by mental disease.
Tlie proposition asserted in this instruction is, manifestly, based on
the idea that the jury must be satisfied beyond all reasonable doubt of
the sanity of the accused, precisely as the prosecution is required to
prove the guilt of the defendant to warrant a conviction. It is in
direct conflict with the decisions of this couit in Bosicell v. Common'-
zvealth, "^ imd Baccigalupo V. The Comvumivedlth.^
In these cases it was unanimously held that the Commonwealth, hav-
ing established the corpus delecti, and that the act was done by the
accused, has made out her case. If he relies on the defence of insanity,
he must prove it to the satisfaction of the jur}'. If, upon the whole
evidence, the}' believe he was insane when he committed the act, they
will acquit him on that ground ; but not upon any fanciful idea, that
they believe he was then sane, yet as there ma}' be a rational doubt of
such sanity, he is therefore entitled to an acquittal. Insanity is easily
feigned and hard to be disproved, and public safety refpiires that it
should not be established by less than satisfactory evidence.
These rules were laid down by this court after a careful examination
of all the authorities, and we are not disposed to depart from them, or
even to qualify tliem in the minutest particular.
We come, then, to the eighteeiith bill of exceptions, which states,
after the conclusion of the o|)ening speet h of the C'onunonwealth's at-
torney, one of the counsel for the prisoner announced to the court,
before beginning his argument, that in the course of his argument, if not
' See Whart. on Ilom., sect. 584, and
notes; Stephen's Crini. Law, 92; 1 Whar.
Jt Stille's Med. Jour., sect. 770.
« 20 Gratt. 8f)0, 876.
3 33 Gratt. 807.
mislead
ere are,
3, in the
anclition
lers him
?sary to
he jury,
CONDUCT OF TUIAL.
25
f things,
measure
esponsi-
litted on
reasona-
>ased 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
<iuality of the act he was doing, or if lie did know, that he did not know he was doing
wliat was wrong.
2. Insanity at Trial — Practice. — The mode of trying present insanity at trial stated.
3. Same. — The form of oath administered to tho jury in such <',ases.
4. Same. —On such in(iuiry the jirisoner holds the affirmative of the issue.
5. Medical Experts. — The iiroi)er form of (luestions to be put to medical experts stated.
The prisoner was arraigned on an indictment charging him with the
wilful murder of Catherine Ilanlin, on the 23d of December, 1844. On
being called upon to plead, his appearance and deportment were such as
to excite doubts in the mind of the court as to his sanity. In reply to
questions from the circuit judge, the prisoner stated he had been six-
teen years in this country; that he had no relatives or friends here ;
that he did not know why he was brought into court, and that he had
no counsel to speak for him, and did not wish any.
The court thereupon assigned A. Benedict, L. B. Sheppard and E.
J. Porter, counsel to defend the prisoner.
The Counsel for the Prisoner, after consultation, objected to the pris-
oner being called on to plead, or submit to a trial, on the ground of his
INSANITY AT TKIAL.
27
lusivcly.
that the
lie cstab-
c courta,
lie juilg-
e, and a
s herein
Construction of Statuto.
JRM OF
S4o.
of Act. -
'ns laboring
liiature and
was doing
stated.
Its stated.
with the
I44. On
such as
[reply to
.>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<l put his hands under her clothes.
Two doctors, Hardy and Jackson, phj'sicians to the city prison,
where the prisoner was confined after his arrest, testified that they be-
lieved, from examinations of, and conversations with the prisoner, that
he was insane; that tiie prisoner did not recognize tiie gravity of his
offence, was afraid of tlie pi'ople in the prison, was wandering and dis-
connected in his conversation, was subject to delusions as to an imag-
inary conspiracy of chemists against him, on account of valuable
discoveries which he iiad made; his manner was nervous and uneasy,
lie was suffering from chronic mania.
It was proved that the prisoner hail been sentenced to a teim of ten
years in tiie State prison at Trenton, N. J. (where he feigned insanit}'),
for rape, and had also been confiiu'(l in the (New York) City Prison on
a charge of assault on a young woman.
Dr. Spitzka testified that he had extimined the prisoner at the instance
of the Society for the T'revention of Cruelty to Children, that the pris-
oner was perfectly sane, that he was shamming insanity, and shamming
very clumsily.
At the close of the trial the following reciuests to charge were made
on behalf of the i)risoner.
Counsel. — I ask your honor to charge the jury as the law in this
case : —
I. The true test of criminal responsibility, where the defence of insan-
ity is interposed to an indictment, is, whether tlie accused had suflicient
reason to know right from wrong ; and whether or not he had sulficient
power of control to govern his actions.
TuE Rkcoiidku. — I will charge the first part of that proposition,
viz. : " The true test of criminal responsibility, where the defence of in-
sanity is interposed to an indictment, is, whether the accused had sulli-
cient reason to know right from wrong." I decline to charge the latter
part, viz. : "And whether or not he had sufficient power of control to
govern his actions."
Counsel for 2)1' isoner excepted to the refusal of the recorder to charge
as requested. Exception.
II. Where a person acts under tlie influence of mental disease, he is
not criminally accountable.
The RiicoKDEU. — That I decline to charge, except as I intend to
charge.
Counsel for prisoner excepted to the refusal of the recorder to charge
as reciuested. Exception.
42
THE LKOAL TEST OF INSANITY.
Walktr It. lVo])le.
III. The tlefeiulant in ii criminal case is not reciuire-il to prove iiis
insanity in order to avail himself of that defence, hut uiorcly to create
a reasonable doubt upon this point, whereupon the burden of proving
his sanity falls upon the people.
The Rkcoudkr. — I decline to charge that. Refused.
Couiuv'lfor prisone7' excepted to the refusal of the court to diarge as
reciuested. Exception.
Tiiic RiccoituEK, in the charge to the jury said: That to establish a
defence on the ground of insanity, it must be '' clearly prooen " that, at
the time of committing tiie act, the subject of the indictment, 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,
and if he did know it, that he did not know he was doing wrong.
Counsel for prisoner excei)ted specifically to t!ie words " dearly
proven'^ as charged. Exccjition.
William, F. Kintzitig, for plaintiff in error.
John McKeoit, district-attorney for the people.
BuADV, J. — The plaintiff in error was indicted and tried for the crime
of abduction, and was convicted and sentenced to the State prison for
tlie term of ten years. The response made to the charge was insanity ;
upon the trial, the counsel for the plaintiff in error requestetl the court
to charge, ^/f/'.s^ that the true test of criminal responsibility, where the
defence of insanity is interposed to an indictment, is, whether the
accused liad sullicient reason to know right from wrong, and whether or
not he had sutfieient power of control to govern his actions. The
learned recorder, in answer to this request, said : —
"I will charge the first part of that proposition, namely, ' the true
test of criminal responsibilit}', where the defence of insanity is inter-
posed to an indictment, is, whether the accused had sufficient reason to
know right from wrong.' " But he further said: " I decline to charge
the latter part, namely, ' and whether or not he had sufficient power to
jrovern and control his actions.' "
The prisoner, by his counsel, excepted to the refusal to charge as
requested.
The counsel for tlie prisoner also requested the recorder to charge
that the 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
reasonable doubt upon that point, " whereupon the burden of proving
sanity falls upon the People."
The learned recorder declined to charge as requested, and the coun-
sel for the plaintiff in error duly excepted.
IX8AMTY MUST HE " CLKAULY I'UOVKN.
48
Power of Control.
)rove lus
to create
proving
harge as
tablisb a
' that, at
the party
ise of the
as doing,
J?-
" clearly
the crime
)rison for
insanity ;
the court
•here the
ther the
hether or
ns. Tlie
the true
is inter-
[oason to
to charge
liowcr to
Iharge as
charge
Irove liis
create a
proving
lie coun-
Thc recorder in his charge to the jury, said that to estaltlish a de-
fence on tlie ground of insanity, it must be clearly proven that at the
time of committing the act, wliicii is the subject of the indictment, tlie
party accused was laboring under such a defect of reason, from a
disease of the mind, as not to know the nature and (piality of the act
he was doing, and, if he did know it, that he <l.tl not know that he was
doing wrong.
Counsel for the plaintiff in error excepted to the words "clearly
proven," as used in this extract from the charge, and the exception was
duly noted.
It will be perceived, in reference to the first recpiest, that, in addition
to the proposition as to the capacity of the plaintiff in error to know I'ight
from wrong, it was designed by his counsel to create another test or
condition, namely, as to whether the plaintiff in error had suffleient
power to govern and control his actions, which is to sa}', in effect , if lie
had sufficient reason to know right from wrong, and knowing it, had not
sufficient power to control and govern his actions, and did the act
cliarged, with a knowledge, therefore, that it was wrong, the act was to
be regarded as that of an insane person, and one irresponsible for his
(Iced.
It is enough to say that there is no precedent for such a combination
of elements, as is presented in this recpiest. Tlie true test, upon the
authorities, is thr^t announced b}^ the learned recorder, namel}', whether
tlic accused had sufficient reason to know right from wrong, and if he
had sufficient intelligence to know it, whether he had sufficient i)ower
to control or govern his actions, was a matter of no moment whatever-
Assuming that he had reason enougii to know that he was doing wrong
when he committed the act of which he stood accused, it was his duly
to control himself, a duty which he owed to God and man, and one, for
the omission of which, under the law of the land, he was to be |)unished-
The courts have gone quite far enough in declaring that if tlie accused
is laboring under such a defect of reason from disease of the mind, as
not to know the nature and quality of the act he is doing, and if he did
know it, that he did not know that he was doing wrong, he should be
rc^^arded as irresponsible for the act charged against him.
There are some obiter dicta which would seem to evidence ten-
tinn to shroud this doctrine in doubt, or to hamper it with conditions
subversive of its clearness and efficiency ; but they htive not been adopted
in :i!iy adju<licated case as ex[)ressive of the law of this State. If, when
a person is put upon trial, it is urged on his behalf that he was insane
lit the time of the commission of the crime of which he is accused, he is
IMAGE EVALUATION
TEST TARGET (MT-S)
&
/-
I/.
1.0
I.I
12.2
IL25 i 1.4
2.0
1.6
Hiotpgraphic
Sciences
Corporation
23 WEST MAIN STREET
WEBSTER, N.Y. 14S80
(716) S73-4S03
m
V
iV
«
>:^^
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<l an alHrmativc issue, or it is stated tiiat the burden of
proof of insanity is on the prisoner in order to overcome the |)resumption
of sanity, is not very material if the jury are told, as they were, that
a reasonable doubt upon tliat question entitled tlie i)risoncr to an
acquittal.
The jury in this ca-^e were told tiiat if thev came to the conclusion
that the jjrisoner was insane at the time it was charged he perpetrated
the crime, tlu'V were to find him not guilty on the ground of insanity,
and further, that if tiiey came to the conclusion beyond all reasonable
doubt that he conunitted the crime, and that he was not insane, it was
their duty to convict him; and further, that if there was any reasonable
doubt arising from the evidence in the case, he was entitled to the bene-
fit of that dcnibt, and it was their duty to acquit him. They were sub-
stantially chargod, therefore, that if there was a doubt about the guilt
of the plaintiff in error, arising either from his innocence of the crime
itself, or from a doubt as to his sanity, that he was entitled to a verdict
of acquittiil.
It will have been iK'rceived that in the axso of Brotficrlnn, to which
reference has been made, the charge was directly to the effect that the
insanity urged on behalf of the prisf)uer was an afifirmative issue, which
he was bound to prove, antl that tiie jur\' must be satisfied on the testi-
mony introduccil by him that he was insane, which was not done in this
case. The learned recorder charged that to cstaljlish the defence of in-
sanity it must be dearl}' proven that at tiie tinie of committing the act
which was the subject of tiie indictment, the party accused was under a
defect of reason from a disease of the mind ; so that the case of Broth-
crton and this one are, in the respects in which they have been com-
pared, in harmony.
From what has been said, the vii'w entertained of the exception to
the charge in which the learned recorder used the words ''dearly
proven " may be foreshadowed. The exception in this respect is re-
garded as valueless. As already suggested, taken in connection with
another paragrai)h, to wiiich reference has been made herein, it is no
broader than the charge sustained in the case of Brotherton v. People.^
la that case it was charged tliat the prisoner's insanity was an afflrma-
' Supra.
nuHDEN OP rijoor
47
Opinion of D.-iiiliLs, .).
icthcr tlio
! to acquit
I'jjo, taken
,1 said that
licther in-
btirdt'n of
osumption
were, that
ler to an
:'onchision
iM'petrated
f insanity,
•easonahle
me, it was
:easonaV)le
I the bcne-
were sul)-
t the guilt
tlie crime
a verdict
to which
that tlie
.ue, which
ilie testi-
16 in tins
ice of in-
1? the act
under a
f Broth-
en com-
eption to
cli'arlv
ict is ra-
tion with
it is no
People. '
affirma-
tive issue wliich lie was hound to prove, an<l in this case it was declared
to l)e a defi'nce, wliich must be clearly proven. The cases are analo-
gous and parallel. Tlie precise question presented by the exception,
although it has not been definitely decidi-d in this State, and althougli it
may seem to be in doubt,' appears to h:ivel)een answered in the Case of
McNu(jhte.n,~ \\\ which Lord Chief Justice Tinuai. s:iid, that the jury
should be told that " to establish a defence on tiie grountl of insanity, it
must be clearly proven tliat at the time of committing the act the party
accused was laboring luxler such a defect of reason from a disease of
tlie 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 what he was doing was
wrong." This case is regarded, therefore, as an express authority for
tlic proposition that the defence of insanity must be clearly proven in
order to overcome the presumption of sanity, which the prisoner en-
counters at the comnn'nceinent of his trial.
The question of insanity, in its legal phases, m:\\ be a very interest-
ing subject to discuss. It certainly presents a very broad Held when
contemplated with the numerous adjudications, both in this country
luidin England, affecting it, and the number of elementary writers who
lirive considered it; but it is not necessarily the duty of an appellate
court to write "^ review of these cases. It is enough to express the con-
elusion arrived at in regard to it when presented for examination upon
consideration of the controlling decisions in this State bearing upon
it This has licen done in this opinion, and it follows that the judgment
must be allirnn-d.
I)\\iKi.s, J. — Tlie law of tiiis case seems to have been carefully ob-
served at the triid. Upon both the important points presented, the
instructions given the jur}' were in strict accord with the authorities
wliich have long been regarded as correct expositions of the law. In
M'XagJiten's Case, the pro[)er course to be followed in the disposition
(if the defence of insanity was considered and determined by the House
of Lords, the highest English judicial authority. And it was then held
tliiit " every man is presumed to be sane, and to possess a sullicient
degree of reason to be responsible for his crimes, until the contrary bi'
proved." And " to establish a defence on the ground of insanity, it
must be clearly proved that at tlie time of the committing of the
!i('t, the party accused was laboring luider such a defect of reason,
from disease of the mind, as not to know the nature and quality
of the act he was doing, or if he did know it, that he did not
' See Peoi)le r. McCann« 16 N. V. 5:^;
PlftDfijian r. IVoiile.Si M. 407.
» 10 CI. ft Fin. 210.
L-
48
THE LKOAL TKST OF INSANITY.
Walker v. IVople.
know he v!is doing wliat was wrong." " If the accused was
conscious that the act was one wliich he ought not to do, and
if that was, at the same time, contrary to the hiw of tlie hind, he
is punisIial)U'." ' The same suliject received the considora(i(»n of
the Court of Appeals in Flund'jnn v. People.-' And the same crite-
rion was sanction for the disposition of the dea-nce of insanity, as
that which was adopted by the preceiUng case in England, And in the
latter case it AVMS further held that the accused was not entitled to an
ac(iuittal, simply because tlie crii..inal act might have been committed in
subordination to some irresistible impulse or inclination. Tiiis point
was urged in ])ehalf of the prisoner in that case, by the same learned
counsel now representing the piesent plaintiff in error, and it was an-
swered by the court, in very plain language, as f<jllows: " Indulgence
in evil passions weakens the restraining power of the will and conscience,
and the rule suggested would be the cover for the commission of crime
and its justification. The doctrine tha" a criminal act may be excused
upon the notion of an irresistible impuh . (oconnnit it, where the offender
has the ability to disctn-er his legal and moral duty in respect to it,
has no place in the law." And the remark of an al»le English justice,
tliat " every crime vas committed under an influence of such a des<rip-
tion, and the object of the law wr.s to compel people to control these
influences," was repeated with a[)proval.'' In lietj. v. ILiynes,-* this
subject was further considered, and it was there observed that " if an
influence be so powerful as to be termed irresistible, so much the more
reason is there why we should not withdraw any of the safeguards
tending to counteract it. There are three powerful restraints existing,
all tendiuf to the assistance of the person who is suffering under such
an influence: the restraint of religion, the restraint of conscience, and
the restraint of the law. But if the influence itself be held to be a
leiral excuse, rendering the crime dispunishable, you at once withdraw
a most powerful restraint, that forbidding and punishing its })erpetration.
We must, therefore, return to the simple question: ' Did the prisoner know
tie nature of the act he was doing, and did he know he was doing what
was wrong? ' " ^ These principles present the gist and substance of the
law upon these subjects. They have been discussed in very many other
instances, and concurring in the same conclusions. For that reason,
particular reference to them is at the present time not necessary. To a
great extent, they are considered in the charge of Mr. Justice Bkadt,
1 10 Cl. & Fin. 200, 210.
■■^ 52 N. Y. 467.
a Id. 470.
MF.&P.666.
' Jd. 667.
OriNZON OF DAVIS, 1'. .1 .
4!>
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 <if A|)|u'iiK.
to wliich concurrence and approval may ver}' i)roperly l»e given. For
tlie reasons assigned by him, aiul those suggested by Presiding Justice
Davis, and maintained in such plain language as to preclude tlie possi-
bility of misapprehension on the occasions just referred to, this convic-
tion should be afnrme<l.
Davis, P. J. — On the question, what constitutes the insanity which,
in law, exonerates from the puiiisinnent of crime, on the ground of i rre-
Hponsibilit;/, I concur fully in the views and conclusions of my brother
Bkady. On the question of the bunlen of proof after evidence has
been given by the accused tending to show insanity, the learned recorder
had given to tiio jiuy, in his charge, the true rule applicable to a case
of the kind when it comes upon all the evidence to be submitted to the
jury, and having done this, it was no error to refuse to submit upon the
part of tiie prisoner a proposition which, if correct in itself^ was only
calculated to confuse tlie jury by distracting tiieir attention from the
real question, which, upon the wiiole evidence, had alre!i<ly been cor-
rectly submitted to them. The recorder committed no legal error in
refusing to charge as recpiested, in the form presented by the counsel
for the prisoner. I concur, therefore, in the affirmance.
Conciction affirmed
■I.
8a.mk Cakk.
In the Neio York Court of Aj)peals, Febrnanj, 1SS2.
1. Test of Criminal Responsibility. —The true tept of criminal responsibility where the
(lefciicoof insHtiily IS lotcr|Misc(l to uii imlictincnt if), wlicilier the u('<'iisc>(l had sufli-
ciuiit reason to know the nature and <iuality of his act, and whether he hn'! cufllcieut
ruusou to know right from wrong.
Power to Control Action. — In his charge the recorder rcfu.sed to ad<l to this jiropoei-
ti(in the further one, " and whetlierorno he (.the accused) liad sullifienl power of con-
trol to govern his actions. " //r/(/, that the refusal was proper, as the recorder had
t'liiirgcd that the accused must have sufOcicnt control of his mental faculties to form u
cniiiinul intent before he can be held responsible for u criminal act. which was us far
as the court should go on the subject of control.
Burden of Proof.— 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 testimony, but lie must
!^atis(y the jury on the whole evidence that the prisoner was responsible; for the affir-
m.iiiTo of the issue tendered by the iiulictmeni remains with the prosecution to the
ind of the trial.
The Defence of Insanity should not be Bostained on vague and shadowy testimony, or
iiiL're conjecture. There should lie dear aixl substantial evidence of insanity, but if
tlii'i'u is, upon the whole evidence in the cus", any reasonable doubt, the accused ia
eniitlcu to the benclit of that doubt, and to an accjuittal.
^
k
'
AO
THE LKCIAI, Ti:ST OF INSANITY.
Walker r. I'coplt'.
Ki{i{«>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 <loultt and
acquit him, tiie jury could not have been misled as to the buiden of
proof, or the degree of proof required of tlie prisoner to overcome the
presumption of sanity, and the charge was quite as favorable to him as
he was entitled to.
Whatever may have been the idea which the language of Ch. J.
TiNDAL was intended to convey in the Mi^Naghton Case, we think that
it was so qualified in the present case, by the connection in which it was
used, and the explanation which accompanied it, that, taking the whole
charge together, it amounted to nothing more than that there should be
subst.antial and clear evidence of insanity to justify an acquittal on that
ground, and that the defence should not be sustained on vague and
shadowy testimony, or mere speculation and conjectuie. In Brotherton
v. People.'* the judge charged the jury as follows: " The allegation of
' 10Cl.&Fin.2OO.
'' People I.. McCann, 16 N. T. 58.
» People r. Schryver, 4J N. Y. 1.
* 75 N. Y. 1G2.
54
Tin: i,r,(}AL tk8T oi' inhanity.
Uiilti«l StiiliH i;. Mi<;iuo.
insanity is an (illlnnafive issue wliicli the defi'iKlaiit is bound to prove,
aiul you must In* satisHcil I'loni tlu' tcstiiuony introduced by him that lie
was insane;" but he uIm) ciiai<ii'd: '* If there is a reasonable douht, a
well founded doulit, wliether the man was insane at the time he lirod the
|ii-.t()l, you will a('(|uit hin»." Tiiis court held, that takinj; the two
paraj^raitlis toiietiier, there was no error.
The opinion in tliat ease was written l)y otir late Itrother, Ch. J.
Cm lit II, than whom no Judi^e approached the toiisideration of criminal
cases in a more humane spirit, or was more careful that all the legal
rij^hts of nctiised persons should be |)roperly {guarded ; but the natural
fiirce and directness of his mind led him to n'i;ai'd the substaiici; of wliat
was said to the jury, rather tliaii nicetlistinctions in forms of exi»ression,
and drew from him the rein:uk tliat " the prisoner was bound to prove
tiiat he was not saiu», and wliether insanity is called an allirmative issue,
or it is stated that the Ixirden of pr()of of insanity is u\nm the prisoner,
is not very material, if the jury are tuld, as they were in this case, thai
a nasonalile douht upon tiiat iniestion enlilled the prisoner to an
aeiiuittal."
W(! think there was no error in die refusals to charge as requested, or
in the charge as given, wlien taken as a whole, and cousecjuently the
judgment slumld be allirmed.
All the judges concurred, except Tuvcv, ,1., absent.
TEST (»F INSANITY — KXPKUT.S — 1)KLIR[UM TREMENS— INTOXICA-
TION NO DEFENCE — BURDEN OF PROOF.
United States v. McGlue.
[1 Curt. 1.]
[n the United States Circuit Court, District of Massachusetts, October
Term, 1851.
Hon. Bi.:n.tamin R. Curtis, 1 _^,^^
" Pklko Spuague, i
1. The Accused Must be Presumed to be sane till \w insanity is proved.
2. Testof Insanity. — It Is not every kind or dogroe of ins.inity which exempts from pun -
i.shment. It the accused understood the imturu of his net; if he knew it was wrong
and deserved i)unishinent, he is rc8pon^ible.
3. Experts are not Allowed to Give their opinions on the rnse, where its facts are
controverted; but counsel may put to them a ^utc of facts, and ask their opinions
thereon.
INITKIJ MATKS V, M UIX'K.
5a
Sylliihiis and Fiii'ts.
:o prove,
n tliiit lie
(loiiht, a
II rod till!
the two
•, Ch. J.
( riiniiiul
the legal
V iialunil
I! (»f WllJlt
pressiuii,
to prove
ive issue,
prisoiuT,
•ase, that
\ir to au
lested, or
ently the
^OXICA-
October
Irom pun-
ras wrong
[facts are
opinions
4. Delirium Tremens. — If ii piT-cni HiilfuriiiK iiiwIiT ililiriiini Irrtmns, is ho far insane u
not to kimw the luitilir nf his iirt, vU',., lie Is liot punisliulilc.
!> 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>Hi<rts that thu |irismit'i' was K>iilly> 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 thin<Ts, if proved, would be evidence of malice, and proof of
this kind is one of the means of sustaining the allegation of malice.
But, besides this direct evidence, of what is called in the law express
malice, malice may be also inferred, or implied, from the nature of
the act of the accused. If a person, without such provocation as the
law deems sulHcient to reduce the crime to manislaughter, intentionally
inflicts, with a dangerous weapon, a blow calcu'.ated to produce and
actually producing death, the law deems the act malicious, and the
offence is murder. The law considers that the party meant to effect
what was the natural consenuonce of his act ; that if the natural conse-
quence of his act was death, he meant to kill ; and if he so intended, in
the absence of such provocation as the law considers sufficient to
account for that intent, from the infirmit}' of human passion, then it is
to be inferred that malice existed, and that from that feeling the act
was done. In other words, an intention to kill unlawfully, without
sufficient provocation, is a malicious Intention, and if the intent is exe-
cuted, the killing is, in law, from m.alice aforethought, and is murder.
Keeping these principles in view, you will proceed to incpiire what the
evidence is of a premeditated design to kill ; and secondly, whether the
act of killing, and the circumstances attending it, were such that malice
is to be inferred therefrom. The only evidence at all tending to show
premeditated design, is given by the master of the vessel, and by
Saunders, the cabin-boy. The master states that, in a previous part of
the voyage, four or five weeks before the time in question, while the
vessel was in port, and he himself was absent on shore, some difficulty
occurred between the first and second officer, in consequence of which
the latter applied to him for his discharge. The witness does not know
of the nature or extent of the difficulty, nor of the feeling to which it
gave rise in the breast of either i)arty to it, saving that it produced in
the prisoner a reluctance to continue under the command of the first
officer. His discharge was refused ; and there is no evidence of any
further quarrel between them. It is also sworn by the master and the
cabin-boy, that when Mr. Johnson fell, after being stabbed by the pris-
oner, some of the cre^^ raised him up, and the prisoner said: " It is of
FACTS I\ I VITKI) STATKS V. M V.IA
57
Insiuiifv as a Dcft-iisc.
\nd this
lit which
that the
tliought ;
lecessary
liat there
proof of
f malice.
7 express
lature of
in as the
ntionally
Juce and
and the
to effect
•al conse-
ended, in
icient to
then it is
the act
without
t is cxe-
nmrder.
what the
ther the
it malice
to show
and l)y
part of
liile the
ifflculty
f which
ot know
rt'hich it
need in
,he first
of any
land the
le pris-
It is of
no use ; I meant to kill him, and I have done it." These expressions
are not testified to by an}' of the crew. In such a scene, it is in accord-
ance with experience that some witnesses may observe and remember
what other witnesses either did not hear or attend to, or have for<j:otten ;
and, therefore, when these two witnesses swear to this expression, if
you consider they are fair witnesses, and intend to tell the truth, they
should be believed in this particular, althouiih others present do not
confirm their statement. But, at the same time, upon this question of
malice, it does not seem to me the expressions, if used, are important,
because they only declare in words what the act of the defendant, in its
nature and circumstances, evinces with equal clearness. It is testified,
by all the witnesses present at the time, that the vessel being at anchor
about three miles from the shore of the island of Zanzibar, orders wore
given by the master to get underway; that the first officer was for-
ward, on the house over the forecastle, attending to his duty ; that the
crew were variously cmi)loved in preparations to make sail ; and that
the prisoner, being aft, ran forward, juini)ed on to the house, seized
Mr. Johnson ])y the collar with his left hand, and with his sheath knife,
which he held in his right hand, stabl)ed him in the breast, and he
dropped dead. When the prisoner seized him, ISIr. Johnson said.
" What do you mean? " and the prisoner, at the instant he struck the
blow, replied, " I mean what I am dcnng."
Now, gentlemen, if you believe this statement, and there is certainly
no evidence in the case to contradict or vary it, every witness concur-
ring with the rest in the substance of it, there can be no question that
the killing was malicious, provided the jirisoner was, at tht: time, in
such a condition as to be capable, in law, of malice. If you are satis-
fied the prisoner designedly stabbed INFr. Johnson with a knife, in such
a manner as was likely to cause, and did cause, death, no provocation
whatsoever being given at the time, then, in point of law, the killing
was from malice aforethought, unless you should also find that the
I)risoner, when he did the act, was so far insane as to be iucapa})le
in law of entertaining malice ; for the rules of law concerning malice
are all based upon the assumption that the person who struck the blow-
was, at th(? time, in such a state of mind as to be responsible, crimi-
nally, for his act. If he wai; then so insane that the law holds him
irresponsible, it deems him incai)able of entertaining legal nialiie ; and,
therefore, no malice is, in that r-se, to be inferred from his act, how-
ever atrocious it may have been. And, undoubtedly, one main inquiry
in this case is, whether the prisoner, when he struck the blow, was so
T
r>H
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 .<V • .^.r- as I have
described to be necessary to render him irresponsi^^l:, ... ..o.w does not
punish him for any crime he may commit.
But if a person commits a crime under the immediate iafluence of
liquor, and while intoxicated, the law does punish him, liowever
mad he may have been. It is no excuse, but rather an Siggravation of
his offence, that he first deprived himself of his reason before he did the
act. You will easily see that there would be no security for life or
property if men were allowed to commit crimes with impunity, provided
they would first make themselves drunk enough to cease to be reasonable
beings. And, therefore, it it is an inquiry of great importance in this
case, and, in the actual state of the evidence, I think, one of no small
IXSAMTV IJKsri.TIN(! IKO.M DIJLN KKNNKSS.
63
3 previous
lis disease
ner corre-
f (lelirium
the syinp-
)ok to the
shipmates,
not ncces-
kle had he
natural, or
l)le, and if
s manifest-
VViien, and
3 delirious,
I important
nsideration
lisoner had
iring some
its, that he
lioniicide ;
madness.
Ing the law
land there-
Iguishable,
Isometiraes
as I have
- does not
luonce of
liowever
kvation of
did tho
lor life or
provided
leasonable
Ice in this
no small
Ddivhiin Trt'mcn.s.
dilTiculty, wiicther tliis homicide was committed while the prisoner was
suffering under tiiat marked and settled disease of deliriuin tremeus, oi-
in a lit of drunken madness. My instruction to yon is, that if tiie pris-
oner, while sane and responsilile, made himself intoxicated, and wliili'
intoxicated committed a nnnder by reas(jn of insanity, which was one
of the consequences of tliat intijxication, and one of tlie attendants on
that state, tlieii he is res[)()nsil»le in point of law, and must be punished.
This is as clearly the law of the land as the other rule, which exempts
from punislunent acts done under tldiriaiu tremens. It may sometimes
be ditlicult to determine under which rule, in point of fact, the accused
comes. Perhaps you will think it not easy to determine it in this
case. But it is the duty of the Jury to ascertain from tlie evidence on
wliich side of the hue this ease falls, and to decide accordingly. It
may be very material for 3'ou to know on which party is tlie burden of
proof in this part of the case. I have already told you, that it is in-
cumbent on the prisoner to satisfy you he was insane when he struck the
blow; for the reason that, a>. 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?
<i7
Till! Karly Ciihos Ucviowcd.
Is the act,
lo 1)6 <U'-
tho meiiliil
iict, he tVid
i>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"
<rht nor the
it is of the
d down, sn
fuse theni.
To ascertain whether a rule has hitherto been found, we must look to
the authorities; and so far as we ha\c heeii ahle to examine them, tlie
leading and faujiliar Knglish cases and aiilhorities arc substantially as
follows: —
Lord IIalk said the mental ca[)acity ordinarily pcjsscssed hy a chiM
fourteen years old was the test. JNIr. Justice Tk.vcy, in Arnold's (Jose
(172.*]), said: "A man must bet 'tally deprived of his understanding and
memory, so as not to know whut !.e is doing, no more than an infant, a
l)rutc, or a wild l)east; " ' and tiie same doctrine, sid)stantially seems to
have been acted on in Ferrer's Casa."^ The ni'xt prominent case in the
l)ooks is HadJhkVs ('(isa ( ISOO) ; and all I desire to say of that case, in
this cotmectiou is, that it seems to stand by itself. It was clear that
Iladfield knew right from wrong; it wa; clear that he knew tlie nature
(if the act he was aliout to commit; it was clear he manifested design,
foresight, and cunning in planning and executing it ; and it was clear
he knew it would subject him to punishment, which was, indeed, his
motive in committing it. Tlie most that can be said of it is, that every-
body saw he was insane, and that his insanity produced the act.
Next come three cases tried in the ^-ear 1812, Parker's Case,'-^ Boio-
Wri Case,'^ and Bellinfjham's Case; in each of which a more humane
rule than that of Mr. Justice Tk act was adopted, namely, that knowl-
edge of right and wrong, considered as abstract qualities, was the test ;
iiltliough in Boicler's C'xse, Mr. Justice Lk Bi.anu added a further test,
clearly suggested by, and growing out of, the facts of that jtarticular
case, and designed to furnish the rule by which the jury should be
guided in deciding it, rather than by the formula in respect to right and
wrong, namely, that it was for the jury to determine whether the prisoner
was under any illusion in respect to the prosecutor, which rendered his
iniud, at the moment, insensible of the nature of the act he was about
to commit. And in Bell Ingham's Case, Sir Jamks JManfield, C. J,,
took the extraordinary liberty of changing the whole scope and meaning
of the rule, b}' telling the jury, in addition, that " It must be proved
l)eyoiul all doubt, that at the time he committed the atrocious act, he
did not consider that murder was a crime against the laws of God and
nature."
It can hardl}' be contended that these three cases go far toward
establishing a rule; for there is not nuich reascjn in calling that a rule,
which the judge at the trial may feel at liberty to change, for the pur-
' 16 How. St. Tr. 764.
'' 19 How. St. Tr, Ut7.
^ Reported in Collin.son on Lun. 477
* Id. 673.
08
THE LEOAL TE8T OF INSANITY
Stall! V. JoiiPH.
pose of bringirifj about a conviction or ncciuittnl, ncconling to his
individunl view of tlu' facts appcarinj^ in tlic case before him.
But tiiese remarks of Mavskiki.m, C. J. were approved by I^ord Ltno-
iifKST, in Hex v. Offunl,^ aitii()u<^h he, in the same l)reatli, or at least in the
siinie charge to the jur}', laid down another and a new test, which seems
to be entirely inconsistent with the rule in Bdlini/Inim'H Case, namely,
th:\t the jury must be satisfied, before they could aiMpiit the prisoner on
the ground of insanit}', that he did not know, when he committed the
act, what the effect of it, if fatal, would l)e with reference to the crime
of murder. This is not so clear as might be desired, but I should sup-
pose it would strike the average ap|)rchension of a jury as about
ccpuvalcnt to telling them that he must know that the killing would be
murder; which is a qualification of the rule as much in favor of life as
Sir James Mansfield's was in favor of death.
In Reg. v. Oxfonl,^ Lord Desman charged the jury: "If some
controlling disease was, in truth, the acting power within him, which he
could not resist, then he will not be responsible. It is not more impor-
tant than dilHcult to lay down a rule by which you are to be
governed. * * * On the pjut of the defence, it is contended that
the prisoner was non compos mentis, that is (as it has been said) unable
to distinguish right from wrong; or, in other words, that from the
effect of a diseased mind he did not know at the time that the act he
did was wrong. * * » Upon the whole, the question will be,
whether all that has been proved about the prisoner at the bar shows
that he was insane at the time when the act was done ; whether the
evidence given proves a disease in the mind, as of a person quite
incapable of distinguishing right from wrong. Something has been said
about the power to contract, and to make a will. But I think those
things do not supply any test. 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
Avas committing, or, in other words, whether he was under the influence
of a diseased mind, and was wholly unconscious at the time he was com-
mitting the act that it was a crime."
But three years afterward, in Reg. v. Higginson,^ Mr. Justice
Maule, apparently in utter disregard to the elaborate charge of Lord
Denman in Reg. v. Oxford, said to the jury: "If you are satisfied
that the prisoner committed this offence, but you are also satisfied by
the evidence that at the time of the committing of the offence the
1 6C.& p. 168(1831).
« 9C. &P. 52.") (1840).
> 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
<n will be,
bar shows
hether the
rson quite
s been said
hink those
Irisoner was
Ihat he Avas
the act he
16 influence
le was com-
U". Justice
re of Lord
satisfied
itisfied by
Mice the
prisoner vvassoinsiuu' that ho did not know rijxhtfrom wrong, he should
be iu;(juittcd on tliiit ground ; but if ycni think that at the time of tlie
offence he tlid know rigiit from wrong, he is responsible for his acts,
altliough he is of weak intellect." And again, in IHIH, in Rig. v.
Stokt's, the same test, knowledge of riglitand wrong in tlic abstract, was
applitMl by Haron lioi.KK, who said: " Kvery man is held responsilile lor
Ills acts by the laws of his country, if he cr.n discern right from wrong."
The numerical preponderance of authority in Knghind, as gathered
from the cases tluis far, woidd seem to be decidedly in favor of the rule
that knowledge of right and wrong, without reference to the particular
act, is the test ; although their force is nnich shaken, if not wiioUy over-
thrown, by the quaiidcations which Judges have seemed to feel at liberty
to introduce, to meet their individual views, or the oxigciu-ios of par-
ticular cases ; and especially by the charge of I.>;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 ju<lges must not be mistaken for the
enunciation of a universal principle of law, when it appears that they
were used in charging the jury ui)on the facts arising in a j)articular
case.
Tho instructions given also imply that this is a mixed (luestion of law
and fact ; that the onlj'- element of law which enters into it is, that no
man shall be held accountable, criminall}', for an act wliich was the off-
spring and product of mental disease. Of the soundness of this propo-
sition there can be no doubt. Thus far all are agreed ; and the doctrine
rests upon principles of reason, humanity and justice, too firm and too
deeply rooted to be shaken by any narrow rule that might be adopted
on the subject. No argument is needed to show that, to hold that a
man may be punished for what is the offspring of disease, would be to
hold that he may be punished for disease. Any rule which makes that
possible, cannot be law.
It will hardly be contended, I suppose, that delusion or knowledge of
tight and wrong, with reference to the act or an\' other thing, can, with
any degree of propriety, be called a legal test of the mental capacity
wm
80
THE LEGAL TEST OF LN8ANITY.
State V. Jones.
to comniit crime, unless that capacity is deterniined absolutely in all
cases by tlic presence or absence of the fact wljich is assumed to consti-
tute the test.
If we speak of delusion, for instance, before that can be adopted as
the test, in tiie sense intended by tlie recpiest in this case, it must appear
tliat it makes no difference wliether the del' sion has any reference to, or
connection with, the net or not. If we say, as P^ijskink said in Ilnd-
fiekVs Cane, tiiat delusion is the test when it appears to have produced
the act, but not wiien it does not apitear to have produced the act, that
the delusion and the act siiould be connected, we admit that delusion
cannot be a leiral test, because it is not a universal test. And, even if
it were established that, in all cases where there is delusion, there is
not capacity to commit crime with as much certainty as tiiat a heavy
body left free in the air will fall to the earth, it still remains a fact.
That a heavy bod}' will fall is a fact, although it is at the same time a
law of nature ; that delusion attends incapacity for crime would he a
fact still, although, were the fact ascertained to be certain and univer-
sal, it might be called a law of mental disease, and migjit, therefore, be
given to the jury as a criterion, without any positive or practical
wrong.
Yet, in that view, it would be the law of the land in no other sense
than the laws of nature and physics may be considered laws of the land.
Now, this court, sitting for the decision of questions of law, is not at
liberty to receive and consider evidence, or weigh and determine mat-
ters of fact.
But the very lirst step in the inquiry to ascertain if there be any test
or criterion that may be safely given to the jury on this subject, whether
as a fact universally true, or as a principle of law, involves the examin-
ation of an immense mass of evidence, as complicated and difficult to
understand as can well be conceived. Moreover, it would requir'^ a de-
gree of skill and scientific attainment which could only be reached by
years of special study and intelligent observation. Not only ought all
the facts bearing on the question to be collected from every asylum for
the insane throughout the world, but, as an inflexible rule to be estab-
lished, the facts of all other cases, where the patient has never received
scientific treatment, ought to be added to the stock. Then, after col-
lecting the facts in this way, it would be necessary to compare cases
and classes of cases, one with the other, to weigh facts against facts,
to balance theories and opinions, and finally, to deduce a result which
might, itself, turn out to be nothing more than a theory or opinion after
all. At any rate, it would be a deduction of fact.
DR. RAY S Vir.WS.
81
Cases of TL'stiiiiu'iitary Capacity.
cly in all
Lo consti-
I opted as
st appear
nee to, or
in II nd-
|)r()diiccil
! act, that
delusion
d, even if
n, there is
it a heavy
jis a f(xct.
me time a
■ould be a
lid univer-
■refore, be
• practical
ther sense
the land,
is not at
mine mat-
e any test
L, whether
e examin-
ifficult to
luif'^ a de-
iiched by
ought all
;ylum for
be estab-
leoeived
iter eol-
lare cases
list facts,
lit which
ion after
It need not be said that this is not the business of n couit of law.
It is a work which can only be reasonably well done by men who devote
their lives exclusively to its acconii)Hshnu'nt. Such awoik has doubtless
been done, with extraordinary ])atience and ability, by our distinguished
countrvnian. Dr. Ray ; and the result of his laborious investiga-
tion is, that no test can be found. He says: ''To persons practi-
cally acquainted with the insane mind, it is well known that in every
hospital for the insane, are i>atients 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<dice and purpose, he loould be without excuse, and ivoidd be guilty of
murder in thejir^t degree.'"
"In order to excuse a man for the commission of a crime on the
ground of monomania, it must appear that the monomania had relation
to the particidar crime committed, and if it teas monomania upon any
other subject, it would be no excuse. ' '
" Where a man kills another without having given any previous indica-
tions of insanity, and afterwards so acts as to appear to be insane, the
jury should consider this fact to determine whether insanity is not simu-
lated or pretended ; and if the}' find it was pretended, it should not
weigh anything in their decision of tiie question of guilt or innocence."
At the request of the defendant, the jury were instructed that "if
they believed from the evidence that when the prisoner committed the act
charged in the indictment, he was laboring under any irresistible and un-
controllable mental delusion, impelling him to do said act — that he was
at the time of the perpetration of said killing in such a state of mind as to
be unable to control his will and his actions in regard to the act so com-
mitted — then in judgment of law he was insane, and could not be guilty
of the offence of murder charged in the indictment, and he is conse-
quently entitled to a verdict of not guilty."
" If the jury believe from the evidence that at the time of commit-
ting the act diarged in the indictment, tlie prisoner was moved thereto
by an insane impulse controlling his will and liis judgment — an impulse
too powerful for him to resist — and said insu e impulse arose from causes
physical or moral, or from both combined, JOt voluntarily induced by
himself, luider sucli circumstances the jury 'annot find the defei; lant
guilt}' as charged."
The defendant asked the following instructions: that " if the jury
entertain a reasonable doubt as to the soundness of the mind of the
prisoner at the time of the commission of the homicide charged, he is
entitled to the benefit of that doubt, as ho would be to the benefit
of a doubt as to any other material fnet in the case — it being.
INSAXK IMPULSE
80
1 act ; but
' it is mo-
lt a man
domestic
ito of his
id by the
aission of
particular
iug under
editation,
I guilty oj
le on the
d relation
upon any
us indica-
isane, the
not simu-
hould not
locence."
that "if
d the act
e and un-
at he was
lind as to
so com-
je guilty
is conse-
commit-
thereto
impulse
m causes
uced by
fei: lant
he jury
I of the
d, he is
benefit
being,
Form of IiistriK'tioii> (.'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
de<j^ree, and
this judg-
iUant.
|t in exclud-
tlie defeu'l-
the district
admitted
to the facts
It, by agree-
thereto, the
[bject to the
•ancy or ni-
tlie State,
made pursuant to the above stipuhition, exchided certain portions of
tlie allidavit, to wliich the defendant excepted, and assigns its action as
error.
It is first urged that the court exchided the testimony of the defend-
ant's brothers, who were acquainted witii him in former ^-ears and who
would testify to facts showing the defendant to have been at times in-
sane at tliat period of his life, about sixteen years ago. Tliis portion
of the aflidavit, though underscored in red ink, is not marked on the
margin as having been stricken out by the court, and it is not entirely
certain that it was excluded from the jury.
We fully agree with defendant's counsel that on a question of insan-
ity it is competent to show that the defendant had been insane at a prior
period of his life. The testimony of Dr. Hale is not marked excluded
on the margin. It is true a portion of it is underscored in rod ink, but
although the question is left in some doubt, we cannot infer from thence
that this portion was rejected by the court. Anotlier ol)jectioii consists
ill the rejection of that i)ortion of the aflidavit relating to the proi)osed
testimony of Dr. Hughes, of the Keokuk Medical College, Dr. Ranney,
of the Insane Asylum, and Dr. Staples, of the United States Army, each
of whoui is stated to have had large experience in the treatment of
insanity. The aflidavit then states that from the foregoing facts and
circumstances respecting the mental derangement of the defendant,
viz. : those expected to be proved by other witnesses, — and from the
circumstances connected with the alleged homicide and defendant's acts
and conduct on the trial, in their opinion the defendant, at the time of
the alleged homicide, was in a deranged state that would render him
unconscious of what transpired.
At first it seemed to us that in excluding this portion of the affidavit
from the jury, the court erred. But upon a closer examination, we are
of opinion that its action may, under the statute, and the peculiar char-
acter of the aflidavit, be sustained. The statute requires "particular
facts, as distinguished from legal conclusion," to be stated.' If the
" court finds the statement of facts .sufficient, the cause shall be con-
tinued unless the opposite party will admit that the witness, if present,
would swear to the facts thus stated ; in which event, the cause shall
not be continued ; but the party moving, therefore, shall read, as the
evidence of such witness, the facts held by the court to be sufliciently
stated. "2 The i>arty 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 <Iata thus given will not, in
law, entitle the medical gentlemen to give to tiie jury an opinion as to tln'
defendant's sanity, then, strictly, there was no error in excluding such
opinion from the jury. If those medical men had been present upon
the witness-stand, and had been asked, "from the facts and circum-
stances stated by previous witnesses, and from those testified by still
other witnesses, relating to tlie homicide, and from defendant's conduct
on the trial, is it your opinion that the defendant was sane or insane
when he committed the act?" Such a question would have been
nicompetent for it practically puts the medical witnesses in the place of
the jury. 1
Viewing the question arising on this portion of the affidavit as one of
law purely, we are not prepared to hold that we would, for the reason
alone that this part of the affidavit was excluded, reverse the judgment.
But the action of the court in striking out another portion of the afli-
davit, and in excluding the same from tiie jnry, was manifestly errone-
ous. We referred to that part relating to the testimony of Dr. Fay.
This was as follows: "Affiant expects to prove by Dr. Z. Fay, who
resides in Albany County, New York, that he was the family physician of
defendant's father while the defendant lived at home ; that he has visited
the defendant while defendant was laboring inider the mental disability
above set forth ; that said Fay is a jjiactising physician, and that in his
opinion the defendant was, while laboring under tlie mental disability
above set forth, viz. : that specified in previous portions of the affida-
vit, — mentally deranged, and unconscious of what transpired arouiid
him, and, from his knowledge of the defendant, and of his father's
family, he believes that the defendant is subject to mental derangement
and .temporary insanity."
If the defendant has been insane at former periods of his life, it is
undeniable that this is a fact proper to be shown to tlie jury try in"- the
question of his criminal capacity.
And it is eciually undeniable, that, if a physician visits a person, and
from actual examination or observation, l>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(! dcfend<int was al "orty-two
j'ears of a<fe, and icsided witli iiis wife and a child (wlio ..., n witness
on the trial), in 'I'lima County, on a farni. aWoutone mile distant from the
neijihbors. lie had re»ided in that county for over two years, and had
served in the army during the war. He liad, during the forenoon of the
day on wliieh the homicide was committed, been at work in the usual
manner. Shortly after dinner the neijrhbors, from seein<jf the lire, or
some other reason, visited the premises of the defemlant, and f(»und the
liouse in ashes and the (U'feiulant's wife within a few feet of it, dead,
without clothing upon her person, one of lier feet burned off, her fi'a-
tures so destroyed by fhe that they could not be lecognized, and her
skull badly fractured, evidently in conse<iuence of heavy blows with a
club or other deadly instrument. The di'fendant himself, was fcjund
(althoutih he had been seen walking around by persons wh< ipproach-
ing the premises) lying near some stacks a few rods froir, Iwelling-
house, with his throat cut from ear to ear, and ver^' weak froi.. Jie loss of
blood. His hair and Avhiskers were singed, and there was a blister on
his nose, but no evidence of lire on any other part of his person, and
his clothes were not burned.
There was but one eye-witness to the tei'rible occurrence, — a very
young daughter of the defendant, whose age is not stated in the record ;
and she saw only the first portion of it. The testimony in the case is
very imperfectly re|)orted, having been taken down by an unskilled per
son. The daughter testified in substance, thus: —
" My mother is dead — my father killed her ; he struck her — I don't
know with what ; he was mad at her before I left ; it was because she
poured the butter-milk out ; I left because he was going to kill me ; I
knew this by the way he acted ; mother told me to go to Mr. P.'s, — a
neighbor's house, — it was in front of the house that father struck her,
about a rod from the house ; he shot the gun off by her head ; my
father was cross to her and did everytiiing mean that he could." She
then narrates a quarrel occurring some months before between the
defendant and his wife about a dog, and a threat of the defendant to
her, that if she did not let him alone he would stop her breath or the
dog's. " Motlier said nothing to me when I left, as to what the defend-
ant was going to do ; when I went to Mr. P.'s, she said she was afraid
ST ATI: \. I'KI.TKU.
\n
Tlif Kviiltiicc Stilted.
CO of the
I IKjt (lis-
s of uien-
niu.
'orty-two
!i witness
t from the
, iiiul h!l(i
[)on of the
the usiml
lie fire, or
fouiul the
: it, (lead,
', her fen-
1, ami her
ws with a
(vas found
•ipproach-
IwcUinji-
Aie loss of
blister on
>rson, 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 <Mif when I started to Mr. I'.'s; 1 saw father
strike molher; I was tin ii two or three rods ol'l" ; I do not know with
what, or how many times he truck her; after ho went out he had the
gnu; the end of tlie gun was past mijtlu'r when he Jlred it off; my
mother said she was going to tell Uncle .lacciua what he had done; he
broke the clock and threw water oil her; it made him madder than he
was; this was after the clock and lamp were broken; he shot the Run
off first, and then struck her, and they both fell, ami mother was try-
ing to get away from him ; she did iic* halloo. "
There was other evidence showing that they did not at tiiiu'S live hap-
pily together, and that the defendant was fault-lindiiig and cross toward
her. The phys-iciaii who examined the deceascil, gave it as his opinion
that the blow upon her skull would ])roduce instant death. When Dr.
Daniels afterwards dressed the defendant's wound in his throat he had
a conversation with him in respect to the homicide. The defendant
said, '' that the reason ho shot at her was that he wanted to scare her.
lie said he wanted to destroy everything, so that s'lc would not get
anything, and this was the reason why ho burned the house. I asked
him why he struck his wife. He said ho did not strike her; that the last he
saw of her she was going toward Buckingham's." The doctor asked
the defendant if he was not sorry that things were not as they were in
the morning; to which he replied, " I do not know as I am." On tl e
next day after the fatal occurrence ho told another witness the dilliculty
about the butter-milk, and said his wife "struck him in the face with a
plate ; that she went on throwing things out of the house ; he told her
to stop ; she threatened to report him to the trustees ; he then, he said,
took down his gun and shot at her; did not intend to kill her ; that he
was so mad that his passion got the better of him, and about what hap-
pened after that he had nothing to say. I asked him if he intended to
kill the little girl if he caught her. He replied he did not intend to
hurt her." This conversation took place at the instance of the defend-
ant, who asked a person present to go out of the room so that he could
talk with the witness.
7
t
98
THE LEGAL TEST OF INSANITY.
State V. Felter.
A great number of witnesses who had known the defendant for many
years, testified that they never saw anything strange in his conduct, or
anything to lead them to suspect that he was of unsound mind.
The defendant stated that he cut iiis throat with a razor, and told
■where it could be found. There was testimony tending to show, or
from which it might be inferred, that the defendant had tried to rescue
his wife from the flames. That is, it was testified by the physicians that
the blow upon her head would kill her instantly, and it would seem that
after the blow was dealt she was removed by the defendant from the
house, after she had been burned in the manner before described.
There was also testimony from which it might be inferred that the de-
fend.ant cut his own throat before he left the burning dwelling. It was
admitted by the State that the defendant intended to take his own life
when he cut his own throat. There were no witnesses upon the stand
who knew of or testified respecting the alleged insanity of the defend-
ant when at home, or the alleged insanity of his father.
The medical witnesses examined on the trial, as not unfrequently hap-
pens, differed in opinion as to the defendant's sanity. Most of these
witnesses, however, had given to the subject of insanity no special
attention.
The court charged the juiy that " if the defendant at the time of the
commission of the act — if he did coinniit it — was laboring under
such a degree of insanitj'^ asirresistilily and uncontrollably forced him to
commit the act, and if he did not. at the time of the act, have reason
sufficient to discriminate between riglit and wrong in reference to the
act about to be committed by him, it is your duty to acquit v/holly. In
other words, if you believe from the evidence tliat the defendant's mind,
at the time of committing the act — if he did commit it — was so in-
sane that he did not know the nature of the crime, and did not know
tluit he ivas doing torong hi doing the acf. it is your duty to acquit him
altogether. ' '
The defendant's counsel complain of this instruction, and in their
written argument make to it tliis objectioii: " The court did not state
the law ; only a part of it. It told the jury that if the defendant had
sufficient mind to discriminate between riglit and wrong he was respon-
sible. This is not sufficient. He must ha^e mind enough to know tliat
he will be held responsible for his act."
The specified objection to this instruction does not call u[)on us to
enter at length on an examination of the subject of insanity as a defence
to alleged criminal acts. The instructions as given are substantially as
the defendant's counsel in their argument claim they should have been.
i
RIGHT AND WRONG TEST.
}>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<jmmit the crime, is not, as it should be,
limited to the effect of a diseased or insane mind. Under the instruc-
tion it may have had its origin in anger, revenge, or other passion not
springing from an insane mind, or may have been the result of drunken-
ness. It cannot be claimed that an uncontrollable propensity, which is
the offspring of an evil passion, will shield the perpetrator of crime
from punishment. The subject demands no further attention. The
instruction was properly refused.
The seventh instruction is in the following language: —
" If the jury believe, from the evidence, that, at the time of the
commission of the alleged homicide, the defendant was laboring under
a diseased condition of the mind, that he was insane on the subject of
the manner in which the deceased had treated his wife, and on the sub-
ject of deceased, with others, having formed a conspiracy to take his,
defendant's life, then the jury should acquit the defendant."
It will be at once observed that this instruction fails to present the
condition that the mental disease must have destroyed the power of de-
fendant to comprehend, rationally, the nature and consequence of his
act, and overpowered his will, which must exist in order to render him
free from accountability for his acts.'
We will here tlepart from the order i)ursued by defendant's counsel
in considering their objections to the record, and take up the instructions
given by the court upon tiie subject of insanity. The rulings of the
court upon the law governing this defence will thus be considered con-
secutively.
After defining, in the ninth instruction, total insanity or madness, and
informing the jury that one afflicted with such mental disease is not
criminally responsible, the court proceeds, in the tenth instruction, to
announce the rule of law applicable to partial insanity, which, it was
claimed in the defence, was tlie character of the alleged disorder of the
mind of defendant. The jury were inform d that if defendant, on ac-
count of his mental disease, was not able to distinguish right and wrong,
and had not knowledge and understanding of the character and conse-
(juences of his act, and power of will to abstain from it, he was not
legally a responsible being. This is the certain meaning of this instruc-
' state V. Fclter, 25 Iowa, 68.
PARTIAL INSANITY.
107
Insane Delusion.
do other-
ruUed and
either the
A glance
The pro-
should be,
le instruc-
ission not
! drunken-
^ which is
■ of crime
ion. The
ime of the
ring under
subject of
)n the sub-
o take his,
|)resent the
Iwer of de-
nce of his
'ender him
,'s counsel
istructions
|ngs of the
iered con-
Iness, and
base is not
ruction, to
jch, it was
her of the
Int, on ac-
Ind wrong,
Ind conse-
le was not
Is instruc-
tion, expressed with sufficient clearness. It is in harmony with the rule
on the subject recognized by this court in State v. Felter.^
The eleventh and twelfth instructions given to the jury present sub-
stantially the doctrines announced in tlie answer of the judges to the
first and fourth questions propounded to them by the House of Lords in
McNaghten's Ccise.^ They may be briefly stated as follows: 1. In
case of partial insanity, or delusion, as to certain facts and matters,
and the accused, as to other facts and matters, is sane, if the act with
which he is charged was done under the influence of insane delusion,
with the view of redressing or avenj^ing some supposed injury, or of
accomplishing some supposed good, he is punishable, if he knew at the
time of the commission of the crime that he was acting contrary to law.
4. In case of partial delusion, when the subject is not in other respects
insane, the law considers him as to his responsibility, in the same con-
dition as if the facts, in regard to Avhich his delusion exists, were real.
Therefore, if in his delusion he supposes another is about to take his
life, he would be exempt from jjunishment if he kills the person in, as
he believes, self-defence. But if the delusion was to the effect that he-
had suffered a serious injury from another man, and, in revenge therefor,
the accused kills that man, the crime will be punished bj' the law, not-
withstanding the perpetrator of the deed was affected with a disease of
the mind.
These doctrines, it is believed, have the support of the adjudged
cases of this country and England. ^ They are not, we are aware, fully
approved by others entitled to respect."*
They have been assailed with great force by another able writer upon
the medico-legal science.^
Counsel for defendant raise many objections to the instructions
given by the court, which are based upon criticisms of the language
rather than upon the very substance of the principles announced therein.
We will notice one or two which will present fairly the character of all
of these objections.
The second instruction defines correctly €he different degrees of hom-
icide. Murder, the jury are informed, is the killing of a human being
with malice aforethought, either expressed or implied. The crime, they
are then told possesses two elements: First, the killing of a human
being ; second, the malice. The court proceeds clearly enough to ex-
1 25 Iowa, 67.
s 10 CI. & Fin. 200.
3 See 1 Whar. &S. Med. Jur., sects. 125, 126,
et se(/., and cases cited
* See sect. 130 of the book just cited,
and Balfour Browne's Med. Jur. of Insan.
IS, 1!).
'•> 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.
<i. Bookb of Scinnce are not admissible in evidence.
7. Expert — Compensation. — The evidence of an expert should not be discredited
merely because he expects to have liis expenses paid by the i)arty calling him.
Appeal from the Switzerland Circuit Court,
J. W. Gordeyi, W. W. O'Brien, S. Carter, II. A. Downey, and J. A.
WorTcs, for appellant.
D. E. Williamson, Attorney-General, for the State.
Ray, J. — Cincinnatus Bradley, tlie appellant, was indicted for mur-
der in the first degree. He chanoed the venue from before the judge
on account of alleged bias and prejudice. A judge of another circuit
was called by Judge Beuk.shike to try the cause. A jury found the de-
fendant guilty of murder in the second degree, and that he be sentenced
to the penitentiary during life. Motion for a new trial overruled,
motion in arrest of judgment overruled ; judgment on the verdict.
The evidence shows that the defendant and tiie deceased were, on the
•20th day of September, 18(58, living with their fan.iUes in different
parts of the same house, which wa& owned by the defendant ; that no
serious quarrel or ill feeling hud ever existed between ; that deceased
was sitting in the yard, smoking and reading, while the defendant was
engaged in driving ho;;s out of the yard, in doing which he became
greatly enraged ; and, ^fter knocking one of the hogs down with a
boulder, and throwing it over the river bank, he went into the house,
iloclaring his intention to get his pistol and shoot the deceased ; that he
came out with his pistol, and deceased was seen with his stool in his
liand, coming towards the house ; and that when deceased was from
fifteen to thirty j'aids from the porch, the defendant fired from where
ho stood on the porch, the ball hitting deceased in the right side of the
chest, penetrating the lungs, and inflicting a severe and dangerous
wiund. The deceased fell when the shot was fired. The evidence is
cimllicling as to whether his lower extremities were paralyzed by the
wound or not — some witnesses sa_y that they were, and others tliat they
wore not. After the shot the defendant offered to assist the wife of the
w >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 au<l answer for what he had
done. Upon returning to his house, he was arrested, and the pistol —
one of Sharpe's patent, four-barrelled pistols — taken from him, three
buiTels being loaded, one empty, and a bottle of whiskey about half full.
After his arrest he made an effort to get away, caught the sheriff by the
beard, and struggled with liira. When at the magistrate's oflice, he
asked the olHcer wlio had charge of the ])istol for it, for tlie avowed
purpose of getting tlie barrel from the stock and tlirowing it awaj-.
Afterwards he spoke of being admitted to bail in some small amount,
and of his ability to give it ; and while in jail he made an offer of eight
thousand dollars to the sheriff, if he wcnild not lock him up. Tliis offer
was in writing. He employed a jihysician to attend upon tlie deceased,
and paid five hundred dollars ; he employed and broke with several at-
torneys, to each of whom he agreed to pay not less than five hundred
dollars.
In the meantime, the deceased, being wounded severely, was carried
first into his own house, where he remained several days; then he
was carried to tlie house of Mr. Jennings, were he again remained some
weeks, and seemed to be improving, wiien he was a second time re-
moved, this time to the house of INIrs. Salinda Plew, from which time he
grew worse until he died, about ten weeks after he was shot. Before
his last removal his appetite was good, his wound closed, his limbs re-
covered their motion, and he seemed likely to recover. After his
removal he grew worse, acute inflammation of the lungs setting in, re-
sulting in suppuration, and finally in death. There was testimony tend-
ing to show that his death was caused by this inflammation, and not I>y
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<j;hest ini-
can servo
Luthorize a
a state of
a sort of
sion |)ro-
consist-
tnay act in
rest from
interests
upon his
sts of the
action on
ide. Nor
personal
n with his
evcl that
x'st must
f the de-
fendant nniy involve oidy a short imprisonnn'iit or fine, still, as the rule
may he also ap|»lii'd to cases involvin<i the life of an accused person,
the illustration employed should always refer to the liiLjhest interest.
In this ('ase from a reference by the Jud<;e who tried the cause to the
decision of ArnnUl v. Sfatc.J wo must suppose that what was there
sriven as a simple illustration of a case whore a reasonaltle doubt would
exist has boon accepted as a test by which to (h.-tormino mH doubts.
The opinion was nut intondi'd to hi' thus understood.
In ri'i^ard to the second chartj;e, it was plainly erroneous, as it reiiuired
of the pi'isoner, if he sought to avail inmself of the plea of insanity,
that he " must i)rovo the fact in his defence." So, also, of the four-
teenth charge.
If the evidence introduced by the defendant on this snlijo( t created a
reasonable dinibt in the mind of the jury as to the sanity of the dofond-
aut, he sliould have gone accpiit. He was not i-ccpiired to prove his in-
sanity. The legal presumption of sanity simply dispenses with proof
on that suliject in the lirst instance on the part of tht; State. When,
liowover, the defendant's evidence has created a doulit on this point,
the l)urdeu falls ui)on the State of proving his sanity. The instruction,
indeed, would be erroneous by reason of the error in the sixth charge
ill regard to the extent of proof leiiuirod to remove all reasonable
doubts.
The ninth charge is objectionable, also, for the same I'cason. It re-
{[uires the defendant " to prove such a deprivation of the reasoning and
mental powers at the time of the killing as shows that the defendant
(lid not know the consequences of his act, and that it Avas a wrong, and
that it was illegal." IIow i)rove this fact? By a prei)onderancc of
evidence? Or l)e3'ond a reasonable doubt? And, again, we must turn
to the sixth instruction to determine what is such a doubt.
IJut the instruction is erroneous for another reason. It assumes either
that the mind possesses but one faculty, the cognitive, or jjowcr to .ap-
prehend by the understanding, or that this faculty alone is liable to
disease which may relieve the sufferer from responsibility. Neither
hypothesis is true. The scientitic world, both of the metaphysical and
physiological schools of mental philosophers, have accepted the division
of powers announced by Kant, the cognitive or comprehending power;
tlic feelings or capacity for pain or pleasure, and the creative or will
l)owcr, without which latter there is nothing upon which to rest the doc-
trine of free agency and moral and legal responsibility to the law for an
1 23 Iiid. 170.
126
THE LEGAL TEST OF IXSAXITY.
Braillev v. State,
act done or omitted. That disease may successfully assail this triune
organization is not denied; und that its assaults are limited to the un-
derst.inding can no longer be contended in the light of experience, which
exhibits the victims of a lost will in every insane hospital in the civilized
world. Man, under the influence of disease, may know the right, and
yet be powerless to resist the wrong. The well-known exhibi^^ions of
cunning by persons admitted to l)e insane, in the perpetratio.. of an
illegal act, would seem to indicate comprehension of its evil nature and
legal consequences, and yet the power of self-control being lost by
disease, there can be no legal responsibility. Repeated instances are
given where persons subject to temporary parr cysms of insanity have,
during a lucid interval, and when under ai)prehension of a renewed at-
tack, besought their friends to restrain them by force, that they might
not yield to some uncontrollable impulse to do wrong.
A charge, therefore, which limits the inquiry of the jury to the condi-
tion of the cognitive faculty, is erroneous, because mental disease may
as well involve the will as the understanding. That it does aiso extend
to the affections is equally-- well established ; and perhaps no peculiarity
of the insane is more marked than the unreasonable aversion exhibited
by them towards those who in health occupied the citadel of tlieir affec-
tions. This species of insanity, which would in law avoid the disposi-
tion of a man's property 1)y will, of which repeated instances are given
in the books, acts directly u[)on tlio will, and often assumes complete
control over tliat power ; and when this result is reached moral and
legal responsi])iiity are at an end.
In determining the canity or insanity of a testator, undue influence,
prejudice, or a morbid affection which controls his will are well known
tests. That degree of influence, either external or internal, which de-
prives the testator of his free agency avoids the will. " Ilonce, any-
thing in the character of the will wliich renders it contrary to natural
affection, or what the civil law writers d lominate an luidutiftil testa-
ment, as where children, or others entitled to the estate in case of
intestacy, are wholly disinherited, or if not wholly deprived of a share,
it is given in r uch unequal portions as to indicate that it is done without
any just cause, and wholly de|)endent upon caprice, or over persuasion,
or deception, it 'nust tdways excite apprehension of undue influence at
the very least." ' " So, wlier^ the will is unreasonable iu its provisions,
and inconsistent with the duties of the testator witli reference to his
property and family, this will inn)ose upon those claiming under the
> 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, <night to
consider moral mania, if satisticd of its existence, in determining the
degree of crime, and give it such weight as it is fairly entitled to under
the circumstances.
Tiiere is anotlier view which may, and, we think, should, be taken of
this case. It cannot be denied that the j)risoner is a man of an excita-
ble temperament, a quarrelsome dis[)osition, morbidly jealous and sus-
picious, imagining evils where none exist, or, at least, magnifying those
which do exist, and when dyspepsia, or fever and ague is upon him, (jr
there is any other exciting cause like business troubles, di»ai)i)oint-
ments, etc., all these propensities are intensified and brought into greater
activity. Such traits are the seeds which are likely to germinate and
ultimately to result in confirmed insanity. Now, assuming that the
disease had not yet reached that stage, but, on the contrary', that tiie
[irisoner could not only distinguish between right and wrong, but had
also the power of self-control which would enable him to do the right,
and refrain from doing the wrong, is it not quite probable from this evi-
dence that the prisoner was laboring under an unusual and unnatural
exci.ement, brought upon him ])y the circumstances in which he was
placed, and the atmosphere which surrounded him, and that, by reason
thereof, his mind was in such a state and condition that he was inc;ipa-
ble of committing murder in the first degree? May it not be possible
that the man's unfortunate temper, excited by what he regarded as re-
peated and successive provocations, held all his faculties, moral and in-
tellectual, in subjection to S(jnie extent, so that he was incapable of
reasoning correctly, or rightly apprehemling his relations to others?
And that, too, not only while he was under the direct and immediate
influence of the exciting causes, but also after he had had time and
opportunity for reflectic^n, continuing even until after the commission of
the homicide? The common law is considerate of those who take life
in the heat of passion, but makes it a capital offence to take life after
time enough has elapsed for the passion to cool, making no allowance
for cbfferences m temper and disi)osition. Under our statute, Avhich
divides murder in two degrees there is ample opportunity to make some
allowance for those cases where, from any cause, excitement and passion
continue beyond the limits allowed by the common law, and impel to
13(5
TlIK LKOAIi TKST OK INSANITY
Scott V. C'DiimioiiWfJiltli.
the coniinissiou of crimeH which would not bo committed in cooler
momi'iits. Reason and humanity rc(iuiro tiiat this should be done.
This may be, and we are inclined to think that it is, a case in which the
jury would be justilled in ro<^anling the distinction just adverted to.
Upon a careful consii'eration of all the evidence in the case, includinif
the new evidence, it seems to us very doubtful whether the prisoner is
a proper subject of capital punishment.
We, therefore, advise the Superior Court to grant a new trial.
In this opini(>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-
in<r was wrong, that his mind was so disordered that he had not the
mental power to control his actions, — gave the following instruction,
marked No. 4 : —
"The court further instructs the jury that, although they ])elieve
that the accused was laljoring under what is termed moral insanity, yet
moral insanity is no excuse in law for the commission of crime, unless
the moral insanity overwhelmed and destroyed the faculties of the mind
to such an extent as to render the accused incai)able of governing his
actions, at the time of the commission of the act, and the jury ought
not to acquit upon such moral insanity, unless it had manifested itself
in former acts of a similar character, or like nature of the offence
charged."
To this instruction two objections are urged by counsel for the
appellant, the first and most obvious of which is that it requires the jury
to find, as an indispensal)le condition of acquittal on tlie ground of
moral insanity, that the insanity had manifested itself in former acts of
homicide.
Such is undoubtedly the effect and meaning of the instruction accord-
ing to the fair and natural construction of tlie language used. And it
hardly needs an argument to prove that in this respect, if no other, thi'
instruction was misleading and erroneons and [prejudicial to the appel-
lant. It is true that one witness, a physician, iu a very bri alemcnt
of his professional opinion, touching the cliaracteiistics of this disease,
stated that " moral insanity m ver springs first fully developed, but is of
gradual growth. " His view is sustained as well by adjudged cases of
the highest authority, as by the most approved elementary writers on
this subject. In a case decided by the Supreme Court of Pennsylvania,
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us
THE LKGAL TKST OF INSANITY.
Scott i\ Coiniiionwcaltli.
it was said by Chief Justice Gibson, that tiie doctrine wliich acknowl-
ed<;es this mania is dan<;erous in its relations, and can be recognized only
Ml tiie clearest cases. "It ought to be shown to have been habitual, or at
least to have evinced itself in more than a single instance. * * *
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 establish it as a jusilication in any particular case, it ia
necessary, either to show, by clear proof, its contemporaneous exist-
ence, evinced by present circumstances, or the existence of an habitual
tendency, develope<l in previous cases, becoming in itself a second
nature. ' '
Aii •c.\.!i, therefore, this ground of defence is so peculiarly liable to
abuse, tv ; ' r.d against which the utmost care and circumspection are
re(iuire(i, oa the part of the court, in prescribing to the jury the legal
i)rincipu s u'hi:ing to it, yet no authority has been found for the princi-
[ile embtulie*' in the instruction under consideration, which requires that
moral insanity, before it can be made availal>le 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 <le>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
inin<l or conduct except on the one occasion when it is kindled by tem-
' M Mich. "7.
1
142
THE LEGAL TEST OF INSANITY
Pi'oi)lo i". Finlcy.
porary angt-r and sul)si(li'.s willi tho jTrntification of tliat malignant
passion. The rulos of evidonco as adininisterod in this State, while the}'
have opened the door very wide to the testimony of ('xi)t'rts, without
any overnice st-rntiny into tiieir expertness, do not recognize such
mental unsoundni-ss as requiivs legal inquiry, as ni'ccssaril}' involving
scientific evidence, or as beyond tiic domain of common sense. In
Jicgina v. Oxfonl, ' Lord Dknman, in a vi'iy plain and fair charge, made
this remark: " It may V)e that medical men may be more in the habit
of obseiTing cases of this kind than other persons, and there may be
cases in which medical testimony may be essential ; but I cunnot agree
with the notion tiiat moral insanity can be better judged of l)y medical
•men than by others." We entirely concur in this remark, which is
more strikingly applicable to such inquiries as seem to have arisen in
the case at bar.
We have had some doubt whether an}' r ^stion is really raised on the
record, inasnuich as we are not informea upon what sort of facts the
defence of insanity was based. But assuming that there was something
which might, by possibility, amount to a suspicion of insanitj^ and that
llic jury could have found that a "• paroxysm of temiiorary or emo-
tional insanity " was really an insane condition in the case before them
(which the judge ruled they might do), it is necessary to see what was
complained of.
The charge excepted is this : —
" Whose duty is it to prove that the respondent was in a mental con-
dition, at the time of committing the assault, so as to make him respon-
sible for his acts? I say to you, that the law is, that it is the duty of
the defence to first put evidence into the case upon the subject of tem-
porary or emotional insanity, which is the defence here set up ; but
after such evidence is put into the case b}' the defendant — that is, evi-
dence which tends to show that the respondent, at the time in question
here, was laboring under a paroxysm of temporary or emotional insan-
ity (and such evidence has been put into this case by the defence),
then it becomes the duty of the prosecution to prove the sanity of the
defendant by at least a fair preponderance of evidence, and unless you
find they have done so, the defendant must be acquitted."
In other words, the judge told the jury that upon this particular
fact the introduction of any evidence whatever by the defence made it
necessary for the prosecution to introduce aflHrmative proof to more
than counterbalance it. Inasmuch as it must be for the jury to deter-
' C. A p. 5-25.
HURDKX OF riJOOF.
143
malignant
yhile they
», without
lize such
involving
enso. In
rgc, made
the habit
•e may be
mot agree
y mc'-lieal
which is
arisen in
sed on the
facts the
Borai'thing
, and that
7 or cmo-
fore them
what was
ontal con-
\n resi)on-
le duty of
of tem-
iip ; but
at is, evi-
question
nal insan-
defence),
ty of the
nless you
)articular
e made it
to more
to deter-
DefeiicH' Must Kaisc a I{(a«.(»iialili' Dmilit.
mine whether or no the defendant's testimony li:is l>een 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' ri<j;ht and ,-till tlu' \v; (iml;
|inrsni\" profccds from a perverse will Itnmgiit al)out iiy tln' .-oihictioiis
of the evil one, but whit-h, nevertheless, wilii the aids tli;it lie within
oui" reach, as we are taught Ut believe, may be lesisted and overcome,
otherwise it would not seem to be consistent with the priuc-ipli-s of jus-
tice to i)unish any mah'fjietor. There are many ;ip|ictiles and passions
which by long in<lulgence acquire a mastery over men more or less
strong. Some persons in<Iee<l tleeni themselves inciipalilc of exerting
>trciigth 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>e<l slioiild be in
such a stall' from mental disi'.'isc as not to know the nature and (pudity
of the act he was doing, or if he did know it, that he did not know he
was doing what was wrong, and this should be clearly established. This
test, a knowledge of right and wrong, has long been resorted to as a
general criterion for deciding upon legal accountaltility, and with a
restricted application to the act then about to be committed, is approved
l>y 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<ixi:\v,
Judges.
1. Anger and Wrath must not be ronfoiiiulcil with actual iiKs.inity.
2. The Burden of Provinfr Insanity to the salisfactiun of ilic jury i~ on iho pruoner.
.1. Sanity Presumed to Continue. — WliLMO a peiwcMi is sane sliortly before unci adei an
act, tlie pi'usuin|ilioii .s tliat lie was sane at the tune.
EiM!(»i; to the Court of Over and Terminer of Alloirhany County.
Ambrose E. Lynch was indicted for thr inurdei' of William Iladfiold.
The evidence was that the prisoner lived with his sister, who was a
married woman, in .Mle^iieny City: that on the lltli or I'Jth of .June.
1S72. about midnight, the di'ceased was found bv(ieorge Smithsoii in a
street in Allegheny City, wounded ; shortly afterwards the defendant
came u\) with a knife in his hand; said he had killed that man; he had
cut him ; he said '' if he had had a larger knife he would have put him
through faster." To an otlicer of the peace who took him t(» the mayor's
oflice, the prisoner said whilst ,::,oing there, •• I was only at home a few
Tninute» when I heard a noise, I listened and heard a creaking, took out
my knife, and said that they can't fool me on that business." Prisoner
said he then took out his knife and opeiuMl it ; he put liis shoulder to the
door arid shoved it ; it did not go in the first time ; he put his shoulth-r
to it the second time and it went in ; just as the door went ojien, his
LYNCH I'. COMMOXWKALTII.
147
Kvitli'iKu- iinil Iiistnictioiix.
tiltiMl U)
'irm
ed.
T»> 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'cease<l <^ot npand '• went for nu- on
the lloitr," and prisoner gave him anotlier stroke in tiio Ineast. 'I'.i
:uiother witness prisoner said, lie had " ;4iven it t<» iiim twice in the hed
and <uice afterwards; " he said he had found the deceased in his sister's
bed.
Thesi' statements were all made on the ni<;ht of the killinij. Tiie
deceased was taken to the mayor's otilcc, and dii-d about one o'clock of
the same ni^ht.
The sister, examined by the Commonwealth, testified that her husl)!ind
had been away al)out live weeks; that she and tlu^ deceased wen; sittini^
in the room together, but (h'nied thtit tin-re was any impropriety between
them. Whilst sitting there the prisoner burst into tlu; room and
knocked her down ; when she came to the (h'ceascd was gont^ Her
I)rother asked her if she was in bed with a man ; her l)rothcr was clear
crazy ; he acted more like a crazy man than a (hninken one."
Tl»e defendant's points were: —
1. If on the night of the killing the defendant found or supposed he
found, the deceased in l)ed with defenchuit's married sister, and was
thereby so much excited as for the time to overwhelm his reason, con-
science and judgment, aihl cause him to act from an nni'«)ntrollable and
irresistible impulse, the law will not hold him responsi1)le. The court,
Starrett, 1*. J., answered: '"As this point seems to amount to the pro-
position, that if the i)risoner was temporarily insane at the time he did
tlie cutting, he is not guilty of any leg;d offence, it is allinned as an
:il)stract i)roposition of l:iw. If the defendant was actually insune at the
time this, of course, relieves him from any crimin:il responsibility from
wliaU'ver cause the iiis;iiiity arose. But the jury must not confound
Miiiier or wr;ith with ai-tual insanity, because however alisurdly or uii.
reasonably a man may act wlieii exceedingly angry, either with or with-
onL c:uise, if his reason is not actually dethroned, it is no legal excuse
for the violation of hiw."
'2. If the jury have a I'casonable doubt as to the condition of the
defendant's mind at the time when the act was done, he is entitled to the
bonelit of such doubt, and they cannot convict. The court answered;
•• The law presumes sanity when an act is done if no insanity is shown
by the evidence ; and when it appears thatamanwas sane shortl}' pn-
ceding the act, and shortly after, the presumption exists of sanity at the
time of the act, and no jury has a right to assume ()therwi>e. 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 ><aid that iniiuedialely after the cnmmissioii <if the deed, the
prisnner looked likt' a crazy man. Is tlieie anything rejnaiUable in this?
Wiini u man permits his ungry passions to become aroused; wiieji he
resolves upon deeils of violence and canics them into execution, even
to the taking of the life of a fellow-being, it would be singular, indeed,
if tile vengeance thai rankled in liis breast, would n I, clearly manifest
itself by outward expressions. If such nnii.'festMtinns of a wicked
heart, bent upiu vi'Sigeance and the gratilicati( n of malicious passion,
are to bi' seriously considered as sullicienl evidence of insanity, how
lire deeds of violenct' and bloodshed ever to In? punished? A Ii'arned
jiuthor has said that tlie mind is always greatly trouliled when it is
agitated l»y anger, bcwiMercd by jealousy, or corruptid by an uncon-
(pierabh! desire for vengeance. Then, as is commonly said, a man is no
longer master of himself; his reason is affected ; liis ideas are in dis-
order; he is like a madman, lint in all these cases the man does not
lose his knowledge of the real state of things; he ma}' exaggerate his
misforlun>\ 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 alle<ied as an excuse, it is the duty of the defendant to satisfy the
jury that insanity actually existeil at the time of the act, and a doubt
as to such sanity will not justify the jury in acfinittiniif upon that
"ground. The law presumes sanity when an act is done, if no insanity
is s'iown in the evidence, and when it appears a man was sane shortl}'
preceding the act, and shortly after, the j)resinnpti()n of sanity exists
at t' e time of the act, and no jury have a right to assume otherwise
unle-8 evidence in connection with the act convinces them that the de-
fen lant Avas actually insane at the moment the act was committed.
This point is refused." and rightly, and it needs no argument to show
th;it the court were entirely correct in their ruling and answer.
The sixth error is not sustained, for it is clear the ingredients neces-
sary to constitute murder in the lirst degree were proved to exist, and
in determining this to be the case, we have reviewed both the law and
the evidence.
Sentence affirmed and record remitted.
l/iO
THE LEGAL TEST OF INSANITY.
McNasrhtcn's Case
insane delusion — responsinilit^ -test of insanity — burden
of proof — opinions of medical men.
McNaghten's Case.
[10 Cl. ci F. 200.]
Before the Englixh House, of Lords, 1843.
1. Insane Delusion — Criminal Responsibility of Party. — N'otwithstnnding ii party
accused did au act whicf- w.is in itself criniiiinl, under the influence of insane delusion,
with a view of redressintf or revenginjr some supposed grievance or Injury, or of pro-
ducing some public bcneflt, he is nevertheless punishable, if he knew at the time he was
acting contrary to law.
2. Test of Responsibility — Burden of Proof. — Hi lie accused wascnii-icious that the act
wasonc which he (>u,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 foime<l their opinions on Iiearing the evidence given by the other
witnesses.
Lord Chief Justice Tinm>ai. (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<l extent of the un-
soiuidiiess of mind which would excuse the couimis^siou of a felony
nf this sort, having been made the sultject of deltate in the House of
Lords.' it was determined to take the opinion of the judges on the law
goveiiiing stich cases, Accoidingiy. on the 2fith of IVfay, all the judges
attended their lordships, bu* no rjuestions weie then put.
> 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 a<jain attended the House of Lords,
when (no argument havinij been had), the following- questions of law
were propounded to tiieni : —
JlNE 10.
1. What is the law respecting alletred crimes committed by persons
allilcted with insane delusion in respect of one or inore particular sub-
jects or persons ; as, for instance, wlierc, at tlie time of tlie commission
of tlie alleged crime, the accused knew he was acting contrary to law,
bui did the act comphiined of with a view, under the influence of insane
delusion, of redressing or revenging some sup])()sed grievance or injury,
or of producing some supposed public benefit?
2. What are the proper (piestions to be submitted to the jury when a
person alleged -o be aHlicted with insane delusion respecting 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?
3. In what terms ought the question to be left to tlie jury as to the
prisoner's state of mind at the time wlien the act was committed?
4. If a person under an insane delusion as to existing facts commits
an offence in consequence thereof, is he thereby excused. ?
5. Can a medical man conversant with the disease of insanity, who
never saw the prisoner previousl}' to the trial, but who was present dur-
ing 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
commission of the alleged crime, or his opinion wliether 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.
Mr. Justice Mailk. — I feel great difflculty in answering the ques-
tions put by your lordships on this occasion ; first, because they do not
appear to arise out of, and are not put with reference to, a particular
case, or for a particular purpose, which might explain or limit the gen-
erality of their terms, so that full answers to them ought to be applica-
ble to every possilde state of facts, not inconsistent with those assumed
in the questions ; this difflculty is the greater from the practical experi-
ence both of the bar and the court being confined to questions arising
out of the facts of particular cases ; secondly, because I have heard no
argument at your lordship's bar or elsewhere on the subject of these
questions ; the want of which I feel the more, the greater are the num-
ber and extent of questions which might be raised in argument ; and
thirdly, from a fear, of which I cannot divest myself, that as these
(juestions relate to matters of criminal law of great importance and fre-
I
RKiirr AND \Vi;ON(i tkst.
15;l
The Answer of .Maulo, .J., to the Lciiul T<'>1.
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
<luestion cannot be said (with reference only to the usage of language)
to be equivalent to a description of this kind and degree of unsound-
ness of mind. If the state described in the question be one which in-
volves, or is necessarily connected with such an unsoundness, this is
not a matter of law, l)ut of physiology, and not of that obvious and
familiar kind as to be inferred without proof.
Second, the questions necessarily to be sid)mitted to the juiy are
those questions of fact, which are raised on the record. In a criminal
trial, the question commonly ;s, whether the accused be guilty or not
guilty; but in order to assist the jury in coining to a right conclii-
154
rm. i,K<iAL TKsr ok insanity
MrNiUXliti'li'- (';isc
sion on tliis lu'cissary ami iiltiinnte f|UC'stion. it i> usual and |)r<)pc'r to
siil)niit sue. I sii'hoidinalc or intt'iinoliato questions, as tlic <M)nrst> wiiich
the trial lias taken may have ina<le it convenient to direct then* attention
to. What tlios«' (lueslions an-, and the niunner of .suhuiitting tluni. is a
matter of discretion for the Judire ; a discretion to lie i>uided 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. an<l tlu- state of an inquiry as to the
iruilt of a i)ers()n cliarnred witli a crime, and defended on the ground of
insanity may lie sudi. that such a (piestion as either of those suggested
is proper to be askeil an<l answci'cd tliougli the witness has never seen
the ])erson before the trial, an«l though he has merely been present and
heard the witnesses ; these circumstances of his never having seen the
person lu'fore, and of his having merely been present at the trial, not
being necessarily sutlicient. as it seems to me, to exclude the lawfulness
of a question which is otherwise lawful: though 1 will not sa}' that an
inciuiry might not bi' in such a state as that these circumstances should
have such an effect.
Supposing there is nothing else in the state of the trial to make
the ([uestion suggested proper to be asked and answered, excei)t that
the witness had been present and heard tlie evidence ; it is to be con-
sidered whetlicr thai is enough to sustain the (piestion. In principle it
is open to this objection, that as the opinion of the witness is foundeil
on those conclusions of fact which he formed from the evidence, and
as it does not appear what those conclusions are, it may be that the
evidence he gives is on such an assumption of facts as makes it irrele-
vant to the iiuiuiry. But such (|Uestious have been very frequently
asked, and the evidence to which thcv arc directed has l)een irivcn, ami
M NA(illTKN S CASK.
l.-).-)
Answer of ('. .1. Tiiidiil to tlic Lords.
jioper to
I'so wliic'h
attention
lluni. is a
by a <'on-
pcrforni-
1 the jury
estion, he
lity woiikl
have jncn-
)inion, tlie
•cd to use.
Latcd, Itiit
assist ihc
used,
n is appli-
ely on the
le cause at
as to the
ground of
suirjxested
Inc'ver si'on
Iresent and
seen tlu'
trial, not
iwfulness
ly that an
es sliould
1 to make
ceept that
|to 1)0 con-
Irinciplc it
Is founded
|(>n('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 <lelusion in respect to one or m>.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<r was clearly proved, and
the sole defence was insanity. The hninicide took place on Thursda\',
and the evidence tended to show that, commencing on ]\Ionday night
previous, and continuing with increasing iiggravations up to some period
subsequent to the warden's death, the prisoner was laboring under some
powerful hallucination ; that he was at times in great distress and appre-
hension ; tiiat he declared he heard the voices i his fellow-prisoners
confined in distant parts of the i)rison. and also some of the officers
spetiking to him and threatening him with danger, telling him that poi-
sonous substances were mingled in his food ; that a fatal or dangerous
istHiUiiilly
tioii to 1)0
d on as a
lOOF
5.]
m, 1S44.
s such that
iginary, uml
ICC existed,
8h between
s of hi.s act,
h tlie legal
admissible,
[ince of the
vn, Mas-
c'oln tin-
by stall
rod, iiiiil
lursdny,
ny niglil
e period
lor some
d apprc-
frisoner^
ofBcers
hat poi-
nsjerous
rOMMONWKAI.Tll ''. i:()(i KKS .
Kiicl«. t'f till' ( ';i>('.
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 an<l iiilluonci's. In tlusc cases,
tlie rule of l-iw. ••..» we uluk'^^tall(l it, is tliis : A man is not to l)e excused
from r'Jspousil)ilit y, if he has capacity and reason sulllcicnt to enaltle
him to distinj-uisli Ijetwceu right and wrong, as to the piirticnUnr act he
is t'len doing ; u knowk'dge ami consciousness that tiu' act he is doing
is wrong and criminal, and will snlijcct him to punishment. In order
to he responsil»le, he nuist have suliicient, powiT of memory to recollect
the relation in which he stands to others, and in which others stand to
him ; that the act he is doing is contrary to the plain dictates of justice
and right, injurious to others, and a violation of the dictates of (hity.
On tlie contrary, although he ma}' be hU)oring under partial insunif}*,
if he still understands the naline and character of his act, and its con-
se(iuences ; if he has a knowledge that it is w -ong and criminal, and a
mental power sulHcient to apply that knowh'dge to his own case, and to
know thai, if he does the act, he will do wrong and receive punishment ;
such partial insanity is not sutHcient to exemi)l him from responsibilitj'
for criminal acts.
If then it is proved to the satisfaction of the jury, that the mind of
accused was in a diseased and unsound state, tlie (luestion will l)e
whether the disease existed to so high a degree, that for the time being
it overwhehned the reason, conscience, and Judgmt'nt, and whether the
prisoner, in committing the homicide, acted from an irresistible and un-
controllal)le impulse. If so, therj 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.
The character of the mental disease, relied upon to excuse the
accused in this case, is partial insanity, consisting of melancholy, ac-
companied by delusion. The conduct maybe in many respects regular,
the mind acute and the conduct a[)parently governed by rules of pro-
priety, and at the same time there may be insane delusion, by which
the mind is perverted. The most common of these cases is that of
monomania, when the mind broods over one idea and cannot be rea-
soned out of it. This may operate as an excuse for a criminal act ia
one of two modes: 1. Either 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 where the belief is
that tlie party killed had an immediate design upon his life, and under
that belief, the insane man kills in supposed self-defence. A common
instance is when he 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 power,
insam: dkmskjns.
im
'8C cases,
J excused
tt» ciialile
ar act ho
is doing
111 (jnlcr
- recollect
stand to
of justice
f duty.
insanit}',
d its cen-
tal, and a
ie, and to
lisluncnt ;
)onsibility
3 mind of
n will he
inic! Iieing
let her ihc
e and uu-
voluntary
irrcnce of
cuse the
loly, ac-
regular,
s of pro-
by which
s that of
jt be ren-
al act in
ion under
in itself,
belief is
nd under
common
ne by the
it sincere
)r power.
HiH'dcii of I'roof,
which supersedes all human laws and the laws of nature. 2. Or this
state of delusion indicates to an experienced person, that tiie mind
is in a diseased staU' ; that tlie known tendency of tiiat diseased state
of the mind is to break out into sudden paroxysms of violenci', venting
itself in homicide or other violent acts toward friend or foe indiscrimi-
nately ; so that althougli there w.'rc no previous indications of violence,
yet the subsequent act, connectiiig itself with the previ(jus symptoms
and in<lications, will enable an inexperienced person to say that the out-
break was of such a character, that for the time being it must have
overborn memory and reason ; that tlie act was the result of the disease,
and not of a mind capable of choosing ; in short, that it was the result
of uncontrollable imi»ulse, and not of a person acted upon l)y motives,
and governed by the will.
The questions, then, in the present case will be these: 1. Was there
such a delusion ami hallucination? 2. Did the accused act under a
false, but sincere belief that the M'arden had a design to shut him u[), and
under that pretext, destroy his life ; and did he take this means to pre-
vent it? 3. Are the facts of such a character, taken in connection with
the opinions of the professional witnesses, as to induce the jury to be-
lieve that the accused had been hiboring for several days under mono-
mania, attended with delusion ; and did this indicate such a disease<l
state of the mind, that tiie act of killing the warden was to be consid-
ered as an outbreak or paroxysm of disease, which for tlie time being,
overwhelmed and suppressed reason and judgment, so that the accuseil
was not an accountable agent?
If such was the case, the accused is entitled to an acquittal ; other-
wise as the evidence proves beyond all doubt the fact of the killing,
without provoi-ation, by the use of a deadly weapon, and attended with
circumstances of violence, cruelty and barbarity, he must undoubtedly
be convicted of wilful murder.
The ordinary presumption is, that a person is of sound mind, until
the contrary appears, and in order to shield one from ciiminal responsi-
bility, the presumption must be rebutted by proof of the contrary, sat-
isfactory to the jury ; such proof may arise out of the evidence offered
by the prosecutor to establish the case against the accused, or from
distinct evidence offered on his part; in either case it must be sufficient
to establish the fact of insanity, otherwise the presum|)tion will stand.
The opinions of professional men on a question of this description
arc competent evidence, and in many cases are entitled to great consid-
sideration and respect. The rule of law. on which this proof of the
opinions of witnesses, who know nothing of the actual facts of the case.
11
I
\r,j
Tin: l,K(J.VI< TKST OF INSANITV
CoilllllDIIWriillli r. Ko^cl'H.
is fixiiuU'd, IS not poculiar to inodiciil tCHtiinoiiy, but is a ^^uiiurul nilo,
u|)|>lical)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
<l()iie. You have heard a good deal of evidence respecting the peouliari-
ties of the prisoner through a long period of time before this occur-
rence, and it is claimed that he was, during all that time, subject to
delusions calculated to disturb his reason and throw it from its balance.
I only desire to say here that the oidy materiality of that evidence is in
the probability il may afford of the defendant's liability to such disorder
of the mind, and the corroboration it ma}' yield to other evidence which
may tend directly to show such disorder at the time of the commission
of the crime.
A few words may assist you in applying to the eviileuce what I have
thus stated.
You are to determine whether, at the time wlien the homicide was
committed, the defendant was laboring under any insane delusion
prompting and impelling him to the deed. Very naturally you look first
for any explanation of the act which may have been made by the de-
fendant himself at the time or immediately before and after. You have
had laid before you, especially, several papers which were in his po>-
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<jii to this you have the very ii portant testimony of the witness,
.Joseph S. Ue^'uolds, as to the prisoiu'r's statements, oral and written,
made about a fortnight after the shooting. If you credit this testimony
you lind him ri'iterating the statements contained in the other papers,
l)ut, perhaps, with more emphasis and clearness. lie is represented as
saying thutthe sitmttioii at AUmnii sinjiii'stcd Ilia nnnortil of tfie Prpsidcid,
and as the factiomd liirht became more bitter, he became more decided,
lie knew that Artluu' would become President, and that would help
("onkliug, etc. Jf lie had not f«-<n that the President was doing a great
ivrong to the stalicarts, he looidd not have assassinated him.
In the address to the American people, then written, he says: —
'' f now ivish to ftate disfineth/ irlnj I attempted to remore the President.
I had read the newspa|)ers /'o;- roifi against the administration, verj' care-
fully, for two months, liefore I conceived th(> 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 <i
tiie PtTsi-
'le peopU',
' sliows as
111 iulili-
i' witness,
1(1 writtfii,
testimony
er papers,
esented as
President,
e tleciiled.
k'ould lielp
iuy a great
,'s : —
Pr<'s!(lpnt.
\cvy care-
viiis; him.
settled on
actions of
roiiig into
,s mil own
^sponslbil-
reiterates
(e inspira-
prisoner
foi'tniglit
per three
lort of all
psents the
le of tlie
have not
)rk as an
insane delusion. You arc to consider whether it is so deseril)ed in
the cvi<U'nee, or does not, on the contrary, show a dcUl)erato process
of reasoning and nllection, upon argument and evidence for and against,
resulting in an o/)//(/o/t tliat tlic President had Itetrayed liis party, and
tlial if he wcie <»ut of the way it would be a Itenellt to his party, ami
save the country from the predominance of their political opponents.
So far there was nothing insane in the <'niirlusi>)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<r In
cunning;
icated un-
while by
selfish in
ing a life,
.s the eul-
)lution to
minence,
born, as
or, and a
t an early
religious
theories,
ses; then
ing from
' a politi-
mes, for
ns about
lers : his
subject ;
i r round •
ressible
that, under the excitement of political controversy, he became frenzied
and insanely deluded, and thereby impelled to the commission of a
crime, the guilt of which he could not, at the moment, understand.
It is for you to determine which of these is the portrait of the
accused.
Before saying a last word my attention has just been called to, and I
have been requested by counsel for the defendant to give, certain addi-
tional instructions. One is : —
" It is the duty of each juror to consider the evidence, all pertinent
remarks of counsel, and all the suggestions of fellow-jurors, l)ut to dis-
regard all statements of counsel and declarations of the prisoner except
such as are founded upon the evidence."
Of course, that is a truism, and does not require any particular in-
struction.
" The testimony of the prisoner they will weigh as to credibilit}', and
judge of l)y the same rules and considerations applied to that of other
witnesses."
That is all true, provided that all the influegccs that governed the
prisoner are duly weighed and considered.
"And after all, each juror should decide for himself upon his oath as
to what his verdict should be. No juror should yield his deliberate,
conscientious conviction as to what the verdict should be, either at the
instance of a fellow-juror or at the instance of a majority. Above all,
no juror should yield his honest convictions for the sake of unanimity,
or to avert the disaster of a mistrial. Jurors have nothing to do with
the consequences of their verdict."
All that, gentlemen, is true. Some of it is substantially embodied, I
think, in what I have already said.
" The opinions of experts upon the question of the sanity or insanity
of the prisoner on the second day of July last, which is the only date
as to which it is necessaiy for the j ury to agree upon, on that question,
rests wholly upon the hyjiothetical questions proposed to them, and the
jury must believe, from the evidence, that the supposed facts stated in
a h3'pothetical question are true, to entitle the answer thereto to any
weight."
I cannot give that one because I think their opinions may be founded
upon other grounds than the assumed truth of the hypothetical ques-
tion ; or, at least, that is a question for the jury.
"The fact of insanity or sanity of the prisoner before or after the
second day of July, 1881, is not in issue in this case, except as collat-
eral to the main fact of sanity or insanity at the time of shooting of
I:
188
THK LKUAL TEST OB' INSANITY.
United States v. Giilteiui.
President Garfield, on the second day of July, IHSl ; and the only evi-
dence as to sucii main fact is in the testimony of the prisoner himself,
his words and acts, and the testimony of the experts in answer to the
hypothetical question."
That is, I tliink, one that I cannot give, because the question involved
is one of fact for tiie jury.
And now, to sum up all that I have said in a few words : —
If you find from the whole evidence that, at the time of the commis-
sion of the homicide, the prisoner, in consequence of disease of mind,
was laboi'ing under such a defect of his reason that he was incapable of
understanding what he was doing, or that it was M'rong, — as for
example, if he was under an insane delusion that the Almighty had
commanded him to do tlie act, and in consequence of tliat he was inca-
pable of seeing that it was a wrong tiling to do, — then he was not in a
responsible condition of mind, and was an object of compassion, and
not of justice, and ought to be now acquitted. On the other hand if you
find that he was under no insane delusion, such as I have described, but
had possession of his faculties and the power to know that his act was
wrong, and of his own free will, deliberately conceived, plaimed, and
executed this homicide, then, wlietlier liis motive was personal vindic-
tiveness or political animosity, or a desire to avenge a supposed political
wrong, or a morl)id desire for notoriety, or fanciful ideas of patriotism
or of the divine will, or you are unable to discover any motive at all,
the act is simpl}' murder, and it is your dut}- to find him guilty.
Now, gentlemen, retire to your rooms and consider this matter, and
make due deliberation in tlie case of the United States against
Guiteau.
At this point (4 o'clock and 35 minutes v. m.) the jury retired to
deliberate.
At 5 o'clock and 40 minutes the jury, accompanied by the mar-
shal and bailiffs, returned to the box and were called, all answering to
their names, as follows : —
John P. Hamlin, Frederick W. Brandenburg, Henry J. Bright,
Charles T. Stewart, Thomas H. Langley, Michael Slieehan, Samuel F.
Hobbs, George W. Gates, Ralph Wormley, William H. Brawner,
Thomas Heinline, and Joseph Prather.
The Clerk. Gentlemen of the jury, have you agreed upon a verdict?
Mr. Hamlin (the foreman). We have.
The Clerk. Wliatsayyou? Is the defendant guilty or not guilty?
Mr. Ilamthi (the foreman). Guilty as indicted, sir.
[Great applause, with cries of " Silence? " from the bailiffs.]
HTATK I'. OUT
18l>
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 <iuilty us if he had no in-
siine delusion and was perfectly sane." There is no error in this of
which the defendant can complain. If such a state of mind sup-
jjosed by tiie court may possibly exist, the charge is right; u .wt, the
char<?c did not prejudice the defendant.
The fourth charge asked, and the comments thereon, are in these
words: "That the defendant is not eutiiled to an acfpiittal on tiu'
ground of insanity, if, at the time of the alK'jjcd offence, he had capa-
city sufllcient to enable him to distinjjfuisli l)etween ri;xht and wrong as
to the particular acts charged, and understood the nature and conse-
quences of his acts, and had mental power sudlcient to apply that
knowledge to his own case." The court, in connnenting to the jury
upon the meaning and application of this rule, said to them : "That
whether tiic defendant, Gut, at tiie time of intlicting the blows upon the
body of the deceast'd, knew that the natural or necessary consequences
of his acts were to produce the death of the deceased, might 1 *aken
into consideration by them in determining whether he knew ( der-
stood the nature and consequences of his acts." The charge »,. . cor-
rect.i The comments were not erroneous. The fact that the defendant
knew at the time of inflicting the l)lows upon the deceased, that the
natural and necessary consequences of his acts were to produce death,
did not prove his sanity, but, we think, it was evidence, though very
weak, to be considered by the jury in determining whether he knew the
nature and consequences of his act.
The fifth charge was in these words: '"That to reduce the crime of
killing a human being from murder in the first degree to manslaujihter,
the provocation must be such as to excite a man of ordinarily cool, can-
did, and reasonable disposition to the heat of passion." Whether this
is right or wrong we do not consider, for there is notliing in the case to
show provocation of any kind. If there was no provocation, this is a
mere abstract proposition that cannot possibly have prejudiced the de-
fendant; if there was, it was for the defendant to show it; error will
not be presumed. The exception to the sixth charge is abandoned, and
any questions involved in the seventh have been before discussed.
The eighth charge is in the following language: " If the jury find
from the evidence that the defendant, at the tiine of the killing of Camp-
bell, was so drunk from the use of intoxicating liquors, not drunk with
any view to the commission of said crime, as not to know what he was
I
\
dl
d[
ti
el
t|
tl|
ti
> 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 aii<l wrong in relation to tlie particular act,
he is not tiunishable. Nor is ne when;, in conseiiuence of some delusion, the will is
overmastered and there is no criminal intent.
Imlictment for assault with intent to murder one .John Knight. The
defence was insanity. The prisoner was convicted and sentenced to four
years in the penctentiaiy.
T. P. Stubbs, for the prisoner; McCune, Solicitor General, for tht'
State.
NisBET, J., delivered the opinion of the court.
[Omitting a ruling on another i)oint.]
The record furnishes no evidence to rebut the presumption of malice,
except what relates to the plea of insanity ; it discloses no provocation,
but on the contrary, the circumstances attending the killing, show in
the language of the statute, an abandoned and malignant heart. The
plea of insanitj' set up in this case, does not affect the (lueslion we are
now considering. We consider it irrespective of that plea for the rea-
son, that if the prisoner was not sane, he is wholly irresponsible and
guiltless, not only of murder but of manslaughter. We have no fault
to find with the decision of Judge Floyd, upon this ground for a new
trial, taken in the rule. The fourth and fifth grounds ui)<)n which
the plaintiff in error relied in his rule for a new trial, and upon
which he now relies before this court, relate to insanity, and may be
united.
The court below charged the jury as follows: "A person, therefore^
in order to be punishable by law, or in order that his punishment by
law may operate as an example to deter others from committing crimi-
nal acts under like circumstances, must have sufficient memory, intelli-
gence, reason, and will to enable him to distinguish between right and
wrong, in regard to the particular act abt)ut to be done, to know and
la
11,
in4
THE LKOAL TEST OF INsJAMTY.
Roberts v. State.
understand that it will be wrong, and that he will deserve punishment
by committing it.
" In order to constitute a crime, a man must liave intelligence and
capacity enough to have a criminal intent and jmrpose ; and if his rea-
son and mental powers are either so deficient, that he has no will, no
conscience, or contoUing mental power, or if thiougl the overwhelming
power of mental disease, his intellectual power is forihe time obliterated,
he is not a responsible moral agent, and is not punishable for criminal
acts. If, therefore, you believe from the evidence, that nt the timecf
committing the ac, the defendant had memory and intelligence, even a
gUmmerhig of re<(soii, auffic'xent to enable him to distinguish between
right and wrong, in regard to the particidar act about to be committed, to
know and understand tliat it would be wrong, and that he would deserve
punishment by committing it, you will find him guilty ; otherwise you
will find him not guilty."
The plaintiff excepts to the general proposition laid down by Judge
Floyd, that if a man has sufficient memory, intelligence, reason, and
and will, to distinguish between right and wrong as regards the particu-
lar act about to be done, he is liable to be punished. And also to the
more specific proposition that a man who has even a glimmering of rea-
son sufficient to enable him to distinguish between right and wrong in
regard to the particular act about to be committed; to know and under-
stand that it would be wrong, ai.d that he would deserve pimishmcnt
for committing it, is liable to be punished. I do not perceive that there
is much difference between the two — I do not perceive, in fact, any
difference between a man's having memory, intelligence, reason and
will enough to distinguish between right and wrong in regard to a par-
ticular act, and a glimmering of reason sufficient for the same purpose.
It would certainly be wrong to hold every poor idiot, lunatic or insane
person responsible, who has even a glimmering of reason. That propo-
sition would be inhuman, and is unsustained by authority ; for almost
all these stricken creatures have some faint glimmering of reason, but it
may l)e very different, if the glimmering light of the mind is sufficient
to enable them to distinguish between the right and the wrong of the
net about to be committed. For the puri)ose of this review I shall con-
sider Judge Floyd as ruling that if a man has reason sufficient to distin-
guish between right and wrong in relation to a particular act about to
be committed, he is criminally responsible. lie varies the same idea
soraewliat in the forms of expression used, no doubt for the puri)ose oi
being fully understood by the jury. But that is, I think, the rule which
i
lushment
Mice and
' his rca-
) will, no
ivhelming
literated,
• criminal
e time cf
;e, eren a
between
iiiitted, to
d deserve
•wise you
by Judge
ason, and
e parti cu-
ilso to the
ig of rea-
wrong in
lid under-
nishmcnt
Ithat there
fact, any
lason and
to a par-
purpose,
or insane
at propo-
[or almost
n, but it
sufficient
Ing of the
Lhall eoii-
Itodistin-
I about to
lame idea
kirpose ot
lie which
UOUKRTS V. STATE.
195
An Insane Man Cannot be Punished.
he intended to lay down ; and the question occurs, is that the true rule?
We think that in this case it is.
I shall not attempt a review at large of the cases and learning to be
found in the books upon the subject of insanity. I shall undertake
only a brief statement of the general principles, which are at this day
recognized, and particularly with a view to sustain the position taken in
this case by the presiding judge. Any one conversant with ihe case can-
not have failed to see, that this has l)een for courts and medical men
and legal commentators, adiflicult and perplexing subject. Whether ^
man is sane or not, whether partially or totally deranged, and if only in
part deranged, where accountability to the laws shall begin, and where
end, are questions of great and embarrassing subtlety. The laws of
the sane mind are but little understood ; much less are the laws, if indeed
such phraseology is predicable of it of the unsound mind understood.
We can judge of the one, by external developments, and bj'^ our own
consciousness; of the other, only by external indicia. There are few
men so balanced in intellect as not at Gome times and upon some sub-
jects to approximate towards derangement. All men almost, have
some train of thought in which the mind delights to run at a compara-
tive abandonment of the ordinary routine of thought. Intellectual
enthusiasm not unfrequently approaches the line of insanity. The
numerous cases of mania or delusion which leave the mind sound in
general, but as to certain things, shattered or wholly obliterated have
increased the (lifliculty of any specific general rule as to the responsi-
bility of those who are generally classed as insane. A crazy or partiall}'^
deranged person, is a mystery ; such a person is so by the visitation of
God. The subject of insanity is not resiionsible — humanity, reason,
the law so adjudges. To punish an insane man, would be to rebuke
Providence. Hence, in all definitions of mui'der, of which I have
knowledge, the requirement is found, that the slayer must be of sound
mind. Our own statutory definition requires him to be "a person of
sound memory a,nd discretion." Accountability for crime presupposes
a criruinai intent, and that requires a power of reasoning upon the chai-
acter and consequences of the act ; a will subject to control. For this
reason it is, that a homicide committed under the influence of uncon-
trollable passion is not murder. The reason is dethroned, the will is not
subject to control, and in tenderness to human infirmity, he is consid-
ered as not having a malicious, murderous intent. The difficulty is to
determine who is " a person of sound memory and discretion." who is
incapable of a criminal intent, who is incapable of reasoning upon the
character and consequences of the act, and who is without control over
196
THK LKGAL TEST OF INSANITY.
Roberts r. State.
his will. This is the work, that the labor. Men are, upon proof of the
i;riminal act, presumed to be responsible, and, therefore, the burden of
provin<? irresponsibility devolves upon the defendant.
One does not fail to perceive, also, in looking into this subject, that
the rules now recognized as governing pleas of insanity arc different
from what they were in the time of Lord Coke, and indeed long subse-
(juent to his day. The improvements in the science of medical juris-
prudence, a more enlarged benevolence, and a clearer sense of Christian
obligation, have relaxed the cruel severity of the earlier doctrines. The
plea of insanity is now, as it ought to be, as much favored as any other
plea resting upon the ground of reason and justice. Courts are not now
afraid to trust '.he juries with the investigation of questions of insanity ;
nor are all cases now, as they once were, subjected to the application of
one rule, unjust because of its sweeping generality. There was a time
when the insane were looked upon as victims of Divine vengeance, and,
therefore to be cast out of the protection of human laws, and beyond
the pale of human sympathies. Not so now. The insane hospitals of
our land, founded by provisions of public law, and by private charity,
prove that the insane are the peculiar care of the State, as v/ell as of
private benevolence.
As late as 1723, it was held in England that for a man to be insane,
he must have no more reason than a brute, an infant or wild beast.
It seems then to have been believed tliat for derangement to protect
its subject from criminal responsibility, it must be total in its character ;
either manifesting itself in wild, ungovernable, and incongruous actions,
or in stupid and passive imbecility. It seems not to have been then un-
derstood that men might ordinarily act sensibly and yet be insane; and
reason acutely or learnedly upon most subjects, whilst they were upon
some one or more totally deranged. This inhuman rule cut off from
the benefits of this plea, all the partially insane, and admitted to its
privileges only the raving maniac or the drivelling idiot.
The rule which I apprehend is now more universal than any other, is
in substance the one given in chai'ge by Judge Floyd to the jury. Mr.
Chitty says: "In criminal cases the question is whether at the time
the act was committed, the person was incapable of judging between
light and wrong and did not then know that the act was an offence
against the law of God and nature." '
^Ir. Shelf ord thus states the rule: " If a person, lialile to partial in-
sanity which only relates to particular subjects or notions, upon which
' C'hiUy'8 Med. Juri8p.,345
TKST OF INSANITY
19i
Rogers' and HailfleUlVs Case>i.
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 niiu<l, and the wieked will and intention f the
man. If a man be deprived of his reason, and eonse(|uently of Ids intention, he
cinnot be ijuilty; and if that be the ease, thonich he had aetually killed my Lord
Onslow, he is exempted from punishment; i)iinishment is intended for example
and to deter other persons from wicked designs; l)ut the puidshment of a mad-
man, a person that huth no desij?n, can have no example. This Is one side. On
the other side, we must be very cautious; it is not every frantic and idle humor
of a man that will exempt him from justice, and the punishment of tlie law.
Wiien a man is <ruilty of a iireat offence, It must be very plain and clear, l)eforea
man is allowed such an exemi)tion; therefore, it is not every kind of frantic
humor or somethins; unaccountal)le in a man's actions tliat points 1dm out to be
such a madman as is to be exempted from punishment; it mnut he a man that is
totaWj deprived of hix understandimj and memory, and doth not know xohnt he is do-
ing, no more than an infant, than a brute, or a ii'ihl beast, such a one is never tlu-
object of punishment; therefore, I must leave it to your consideration, whether
the condition this man was in, as it is repi-esented to you on one side, or the
other, doth show a man who knew what he was doin;;, and was al)le to distiu-
iiuish whether he was doim; i^ood or evil, ami understood wiiat he did; and it is
to be ol)served, they admit he was a lunatic, and not an idiot. A man that is an
idiot, that is l)()rn so, never recovers, l)Ut a lunatic may, and hath his intervals;
and they admit he was a luntitic. You are to consider what he was at this day,
when he committed this fact. There you have a srrent many circumstances about
tlie powder and the shot, his i;oin<j: l)ackward and forward, ami if you believe he
wassensil)le, aiul had the use of his reason and understood wiiat he diil, then he is
nut witldn the exemptions of tlie law, but is as su))ject to ])unishment as any
other person." The prisoner was convicted under this test and sentenced to
death, but was afterwards reprieved at the request of Lord Onslow,
§ +. Hadfleld's Case — Brskine's Argument. — Erskiue's celebrated spcccli
on the trial of Iladtield has been referred to with admiration by many judites in
subsequent cases, as containing the (Irst attempt to depart from the barbarity of
the ancient test of insanity in criminal cases. The prisoner was indicted in 1800
for high treason in shooting at King George III.' Mr. Erskine in opening tlie
defence thus addi'cssed the jury: —
"Oentlemen, the law as it regards this most unfortunate infirmity of the hu-
man mind, like the law in all its branches, aims at tlie utmost degree of preci-
sion; but there are some su])jects, as I have just ol>served 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 tal<e a dilHcult course.
" I agree with the attorney-general that the law, in neither civil nor crindnal
cases, will measure the degrees of men's understandings; and that a weak man,
however much below the ordinary standard of human intellect, is not only re-
sponsible for crimes, but is bound by his contracts, and may exercise dominion
over his property. Sir Joseph Jkkyi,, in the Duchess of Cleveland's Case, took the
clear legal distinction, when he said ' the law will not measure the sizes of men's
capacities, so as they be compos mentis.''
" Lord C'oKK, in speaking of the expression »iou con»po« menWs, says : 'Many
times, us here, the Latin word expresses the true sense, and calleth him not
(tmens, demeiis, furiotius, lunutkns,fatin(s, stuUns, or the like, for tinn compos mentis
is the most sure and legal.' He then says: ' non compos mentis is of four sorts:
First, ideota, which is from his nativity by a perpetual inlirmity, is no)i compos
mentis; secondly, he that by sickness, grief, or other accident, wholly loses his
memory and understanding; third, a lunatic, that hath sometimes his understand-
ing and sometisme not ; ali (jnaddo gandet Incides intervallis; and therefore he is
called non compos mentis, so long as he hath not understanding.'
" But notwithstanding the precision with which this great author points out the
different kinds of this unhappy malady, the nature of his work, in this part of it,
did not open to any illustration which it can now be useful to consider. In his
Fourth Institute he is more particular; but the admirable work of Lord Chief
Justice II.vLK, in which he refers to Lord Cokk's Pleas of the Crown, renders alj
other authorities unnecessary.
" Lord Halk says : ' There is a partial insanity of mind, and a total insanity. The
former is either in respect to things, quoad hoc vel illnd insanire: some persons,
tliat have a competent use of reason in respect of some subjects, are yet under a
particular dementia in respect of some particular discourses, subjects, or appli-
cations; or else it is partial in respect of degrees: and this is tlie condition of
very many, especially melancholy persons, who for the most part discover their
defect in excessive fears and griefs, and yet iWQ not wholly destitute of the use
of reason ; and this partial insanity seems not to excuse them in the committing
of any offence for its matter capital ; fov doubtless most persons that are felons
of themselves and others, are umler a degree of partial insanity when they
comndt these offences; it is very difficult to define the invisible line that divides
perfect and partial insanity; but it must rest upon circumstances duly to be
weighed and considered by both judge and jury, lest on the one side, there be a
kind of inhumanity towards t'.ie defects of human nature ; or on the other side too
great an indulgence given to great crimes.'
"Nothing, gentlemen, can be more accurately or more humanely expressed; but
the application of the rule is often most difficult. I am bound, besides, to admit
CIVIL AND < KIMIN.M- \( TS DISTIXOUISIIED.
203
Erskiiu's Ar;;iiiiit'iit in Iliulllehrs Case.
iliiit there is u wide distlnctioii l)et\veeii civil unci criminal cases. If, In the
luriner, a man api)ears upon the evidence, to l)e noncnrnpox nwntis, the law avoids
liis net, though it cannot be traced or connected witli tlie morbid iniai;iiiatlon
wiiicli constitutes his disease, and which may be extremely partial in its inllnence
iil)on conduct; bnt to deliver a man from responsil)iiity for crimes, al)ove all, for
(rimes of jijreat atrocity and wickedness, I am by no means jirepared to apply
this rule, however well established wiien property is only concerned.
" In tlic very recent instance of Mr. (Jreenwood (whicli must Ix- fresh in his
lords'iip's recollection), the rule in civil ca.ses was eonsidired to be settled.
Tliatfrentleman, whilst insane, took up an idea that a most affectionate l)n)ther
liad administered poison to him. Indeed, it was tlie pronunent feature of his
insanity. In a few montlis he recovered his .senses. He returned to his pro-
fession as an advocate; was sound and eminent in his practict', and in all respects
a most Intelligent and useful memlK'r of six'iety; but he coidd never dislodge
from his nnnd the morbid delusion wliich disturbed it ; and under the pressure,
no doubt of that diseased possession, he disinherited his brother. The cause to
avoid this will was tried here. We are not now upon the evidence l)Ut upon the
principle adopted as the law. The noble and learned jud^e, who presides upon
this trial, and who presided upon tliat, told the jury, tliat if they believed Mr.
(ireenwood. when he made the will, to liave been insnne, the will could not be
sujjported, whether it ha<l disinherited his l)rother or not; that the act no doubt
>tron,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
i<h puts in
just, and
witldn tlie
:nowIedir(
on of real
stance be-
" Delusion, therefore, wliere tliere Is no frenzy or ravlutf madness, is tlie true
character of insanity; and where if cannot be pn'di(!ated of a man standing for
life or death for a crime, In- ouirht not, in my opinion, to be acniuilted! and if
courts of law were to be governed by any other iirliiciple, every departure from
>ol)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 <loiibtfnl, the judmneut should certainly be
most indul^reiit from the irreatdillicnlty of divinii into tlie secret sources of a dis-
<irdercd mind; but, still, I think, that as a doctrine of law, tlie delusion and the
act should be connected.
" Vou perceive, therefore, lientleinen, that the prisoner, in naniinji me for his
counsel, has not obtained the assistance of a person who is disposed to carry tlic
doctrine of insanity in his defence, so far as even the books would warrant me in
carryinij; it. Some of the cases, that of Lord Ferrers, for instance, which I shall
consider liereafter, distinKnished from the present, would not, in my mind, bear
ilie shadow of an arjj;uinent, as a defence airainst an indictment for murder. I
•aniiot allow the protection of insanity to a man wlio only exhibits violent piis-
sions and malignant resentments, actiii;; upon real circumstances: wlio fs im-
pelled to evil from no morbid delusions; but wiio proceeds upon the ordinary
perceiitions of the mind. I »'aiiiiot consider such a man as fallinir within the
protection which the lawjrives, and is bound tc;;ive, to those wliom it has pleased
(iod, for mysterious causes to visit wit', tliis most attlictinjr calamity.
" lie alone can be so emancipated whose disease (call it what you will) ^:on-
>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, '<Iam
istancc of
)enumer-
tating it.
naey, and
*d Maxs-
liat great
n retired
)riiood, I
ud Loril
)elieve in
:lie most
mplaint;
id me to
1 with in
liere was
)ned in a
f eonre-
INSANE DELUSIONS.
207
Erslvine's Argument in Iladtleld's Case
spondence i)iit i)y writing Ids letters in cherry juice, and throwing tliem into the
river wliieli surrounded the tower, wiiere the princess received thi-m in a boat.
Tliere existed, of course, no tower, no imprisonment, no writing in cherry
juice, no river, no l)oat; l)ut tlie whole the niveterate phantom of a morhid
imagination. 1 immediately,' continiu'd Lord iM.vNsi-'ii:r.i>, '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<nowing tiiat he liad lost his cause by speaking of the i)rincess at West-
minister: and such,' said Lord M.v.nskiki.d, ' is the extraordinary sul)tlety and
cunning of madmen, that when he was cross-e.xamiued on the trial in London,
as he liad successfully been before, in order to expose his madness, all the
ingenuity of the l)ar, and all the authority of the court cou' ' not make lam say a
single syllable ui)on that topic which had put an end' to tii'> 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<msiderati(ni which we shall come to hereafter. The direct
application of them is only this: thiit if I bring l)efore you such evitleuce of the
prisoner's insanity as, if believed to have really existed, sliall, in the opinion
of the court, as the rule for your verdict In point of law, be suHicient for his
deliverance, then that yon ought not to be shaken, in giving full credit to such
evidence, notwithstanding the report of those who were present at his apprehen-
sion, who describe him as discovering no symptom whatever of mental incapacity
or disorder; because I have shown you that insane persons frequently appear in
the utmost state of al)ility and comjxjsure, even in the hiithest paroxysms of
insanity, except when frenzy is the characteristit; of the disease. In tins respect,
the cases I have cited to you, have the most decided application; because they
apply to the overthrow of the whole of the evidence (aduuttiug ;d tlie s;ime time
the truth of it,) by which the prisoner's case can alone be encountered.
" But it is said that whatever delusions may overshadow the mind, every person
ought to be responsible for crimes who has the knowledge of good and evil-
I think I can presently convince you that there is something too general in this
mode of considering the subject; anil you do not, therefore, find any such
proposition in the language of the celebrated writer idiuded to by tlie attorney-
general in his speech. Let me suppose that the character of an insane delusion
consisted in the belief that some given person was any brute animal, or an
inanimate being (and such cases have existed), and that, uixm the trial of such
a lunatic for murder, you firmly, upon your oaths, were eouviuced, upon the
uncontradicted evidence of an hundred persons, that he believi'd the man he
had destroyed to have been a potter's vesstd: that it was (|uilc impossiijle to
doubt that fact, although to all other intents and i)urposes he was sane, con-
versing, reasoning and acting as men not in any manner tainted witli insanity
converse and reason and conduct themselves: and sui)pose, further, that lie
believed the man whom he destroyed, but whom he destroyed as si potter's
208
THE LEGAL TEST OF INSANITY.
Notes.
vpssel, to be tlio property of aiiothor; uiid that ho had malico against such sup-
posed person, and tlrit lie meant to injure hhn, Kuowinii the act lie was dohig to
1)0 malicious and injurious; and that, in short, ho had full knowledfie of all
the iirinciples ()f ijood and evil; yt't would it bo possible to convict such a
person of niunU'r, if, from the inllueuco of his disease, ho was of the relation
ho stood in to the man ho had destroyed, and was utterly unconscious that he
had struck at the life of a human beinir? I ouly put this case, and many others
miijht be brought as exiimi)les, to illustrate that the knowledge of ;iood and evil
is too iieneral a descriptit)n.
*' I really think, however, that the attorney-jjoneral and myself do not in sub-
stance viry materially differ; because, from the whole of his most able speech
taken toycether, his meaning; uiay, I think, be thus collected: that when the act
which is criminal is done under the dominion of malicious mischief and wicked
intention, althontih such insanity miirht exist in a corner of the mind as might
Mvoid the acts of the delin(|uont as a lunatic, in a civil case, yet that he ought
not to be protected if uialicious mischief, and not Insanity, had impelled him to
the act for which he was criminally to answer; because, in such a case, the act
might be justly ascribed to malignant motives, and not to the dominion of dis-
ease. I am not disposed to dispute such a proi)osition, in a case which would
apply to it, and I can well ci)ncoivo such cases may exist. The question,
tlierefore, which you will have to try is this: Whether, when this unhajipy man
ilischarged the pistol in a direction which convinced, and ought to convince,
every person that it was pointed at the king, he meditated mischief and violence
to his majesty, or whether ho came to the theatre (which it is my purpose to
establish) under the dominion of the most melancholy insanity that over degraded
and overpoworod the faculties of man. I admit that when he bought the pistol,
and the gunpowder to load it, ar ' when he loaded it and came with it to the
theatre, and lastly, when ho discharged it, every one of those acts would be
overt acts of compassing the king's death, if at all or any of those periods he
was actuated by that mind and intention which would have constituted nuirdor
in the case of an individual, if the individual had boon actually killed. I admit,
also, that the mischievous, and, in this case, the traitorous, intention nuist be
inferred from all those acts, unless I can rebut the inference by proof. If I
were to lire a pistol towards you, gentlemen, where you are now siting, the
act would imdoubti'dly infer the malice. The whole proof, therefore, is undoubt-
edly cast ujion me. In every case of treason or murder, which are precisely the
same, i'xcei)ting that the uncousummated intention in the case of the king is the
same as the actual murder of a jirivato man, the jury must inii)ute to the person
whom they condenm by their verdict the motive which constitutes the crime;
and your jirovince to-day will therefore l)e to decide whether the prisoner, when
lie did the act, was under the uncontrollable dominion of insanity, and was
impelled to do it by a morbid delusion; or whether it was the act of a man who,
though occasionally mad, or even at the time not properly collected, was yet not
actuated by the disease, but by the suggestion of a wicked and malignant dis-
position. 1 admit, therefore, freely, that if after you have heard the evidence
which I hasten to lay before you of the state of the prisoner's mind, and close
up to the very time of this catastrophe, yon shall still not fool yourselves clearly
justified in negativing the wicked motives imputed by this indictment, I shall
IIAUFIKLO S CASE.
2()i>
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 <lo not ask you to judge
as physiognomists, or to give the rein to compassionate fancy; but can there be
any doubt that it was the generous emotion of the mind, on seeing the prince,
under whom lie had served with so much bravery and hoiiori' Every man cer-
tainly must judge for himself. ' i in counsel, not a witness, in the cause; but it
is u most striking circumstance, 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!<ed Savior, he was to .sacrifice himself for its salvation-
And so obstinately did this morbid image continue, that you will be convinee<i
he went to tlie theatre to perforin, as he imagined, that l)lessed sacrifice; and
because he would not be guilty of suicide, though called upon by the imperiou>
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
iil<l up his
iii subject,
ind to end
tiie body
rtards car-
untrynien,
I woundeil
ver.
less which,
uinations,
ober esti-
iiterconrse
u eonclu-
salvation.
convinced
illce; anil
iniperloii-
it be taken
madness,
al, and on
n to Enii-
• intimate.
f his snp-
it of eisiht
niontlis, and I have no doubt, tliat if the boy luul been brou'ilit into court (Uxw
this is a grave place for the consideration of justice, and not a tlieatre'for stage
effect), — I say, I have no doul)t wlmtever, tliat if this poor infant had been
b.ouglit into court, you would have seen the unhappy father wrung with all the
emotions of parental affection; yet upon tlie Tuesday preceding the Tinirsday
when he went to tlie play-house, you will llnd his disease still tirging him forward
\\itli the impression that the time was come when he nmst be destroyed for the
benefit of mankind; and in the confusion, or rather delirium of this wild concep-
tion, he came to the bed of the mother, who had this infant in her arms, and en-
deavored to dash out its brains against the wall; the fanuly was alarmed, aiul
the neigld)ors being called in, the child was with dillieulty rescued from the un-
happy parent, who, in his madness, would ha\e destroyed it.
"Now let me for a moment suppose that he hud succeeded in tlie accomplish-
ment of his insane purpose, and the question had been whetlier he was guilty
of murder. Surely, the affection for this infant, up to the very moment of his
distracted violence, would have been conclusive in his favor, but not more so
than his loyalty to the king, and his attachment to the Duke of York, as appli-
caltle to the case before us; yet at that very jieriod even of extreme distraction
he conversed as rationally on all other subjects as he did to the Duke of York
at the theatre. The prisoner knew perf'ctly that he was the liusl)and of the
woman and the father of the child; the teais of affection ran dov.n his face at
the very moment when he was ai)ont to aci'mplish its destruction; but durinir
the whole of this scene of horror he was not at all deprived of memory, in the
attorney-general's sense of the expression; he could have conununic ited, at
that very moment, every circumstance of his past life, and everything eonneeteil
with his present condition, except only the quality of the act he was meditating.
Ill that he was under the overruling dominion of a morliid imagination, and
conceived that he was acting against the dictates of nature in obedience to the
superior commands of Heaven, which had told him that the moment he was
dead, and the infant with him, all nature was to be changed, and all mankind
were to lie redeemed by his dissolution. There was not an idea in his mind,
from the beginning to the end, of the destruction of the king; on the contrary,
lie always maintained his loyalty; lamented that he could not go again to tight
his battles in the field; and it will be proved that only a few days before the
periifd in (luestion, being present when a song was sung, indecent, as it regarded
tlie person and condition of his majesty, he left the room with loud expressions
of indignation, and immediately sang 'God Save the King,' with all the enthu-
siasm of an old soldier who had bled In the service of his country. I confess to
you, gentlemen, that tliis last circumstance, which may to some appear iiisig-
nillcant, is, in my mind, most momentous testimony; because, if this man had
been in the habit of associating with persons inimical to the government of our
lountry, so that mischief might have been fairly ariiued to have mixed itself
\\ ith madness (which, by the by, it frequently does) ; if it could in any way have
l)een collected, that from his disorder, more easily inflamed and worked upon,
lie had been led away by disaffected persons to become the Instrument of wick-
edness; if it could have been established that such had been his companioiis and
habits, I should have been ashamed to lift up my voice in his defence, I should
have felt that, however his mind might have been weak and disordered, yet
212
THE LEGAL TEST OF INSANITY.
Notes.
if his undcrstaiulina; sufflciently existed to be methodically acted upon, as an
instrinnent of malice, I could not have asked for an acciuittal; but you find, on
tiie contrary, in the case before you, iiiat, notwithstanding the opportunity which
tiie crown has had, and which upon all such occasions it justly employs to detect
treason, either ajrainst the person of the kiujj; or against his frovernuieut; not
one witness has been able to fix upon the prisoner before you any one companion
of even a doubtful description, or any one expression from which disloyalty
could be inferred, whilst the whole history of his life repels the imputation.
His couraije in defence of the kintj and his dominions, and his affection for his
von, in such unanswerable" evidence, all speak aloud ajjainst the presumption
that he went to the theatre with a mischievous intLnliou.
"To recur again to the evidence of Mr. Ricliardson, who delivered most hon-
orable and impartial testimony, I certainly am oblige I to admit that what a
prisoner says for himself, when coujjled at the very time with an overt act
of wickedness, is no evidence whatever to alter the obvious (luality of the act
he has committed. If, for instance, I who am now addressing you had llred the
same pistol towards the box of the king, and having been dragged under the
orchestra, and secured for criminal justice, I had said that I had no intention to
kill the king, but was weary of my life, and meant to be condemned as guilty,
would any man, not himself insane, consider that as a defence? Certainly not,
because it would be without the whole foundation of the pr'soner's previous
condition; part of whieli it is even difficult to apply, closely and directly by strict
evidence, without taking his undoubted insanity into consideration, because it
is his un(|uestionable insanity which alone stamps the effusions of his mind with
sincerity and truth.
" Tiie iilea which had impressed itself, '^ut in most confused images, upon this
unfortunate man was that he nuist be destroyed, but ought not to destroy him-
self. He once liad the idea of tiring over the king's carriage in tlie street, but
then he imagined he should be innnediately killed, which was not tlie mode of
propitiation for the world; and as our Savior, before his passion, had gone Into
the garden to pray, this fallen and atllicted being, after he had taken the infant
out of bed to destroy it, returned also to the garden, saying, as he afterwards
said to the Duke of York, ' that all was not over; that a great work had to be
finished;' and then he remained in praj'er, the victim of the same melancholy
visitation.
" Gentlemen, these are the facts, freed from even the possibility of artifice or
disguise; becau.se the testimony to support them will be beyond all doubt; and
in contemplating the law of the country, and the precedents of its justice, to
whicli they nuist l)e applied, I find nothing to challenge or (luestion. I approve of
them throughout; I subscribe to all that is written by Lord ILvlk; I agree with
ill! the authorities, cited by the attorney-general from Lord Cokk; but above
.all, I do most cordially aji,ree In the instance of convictions by which he illus-
trated them in his able address. I have now lying before me the case of Earl
Ferrers; uufiuestionably there could not be a sluulow of doubt, and none appears
to have been entertained of his guilt. I wish, indeed, nothing more than to
contrast the two cases; and so far am I from disputing either the principle of
that condenmation, or the evidence tliat was the foundation of it, that I invite
you to examine whether any two instances in the whole body of the criminal law.
I
HADFIELO S AND FEIJKEIJS CA.nK!^.
213
Erskiiici's Arituinont in tin- ForiiuT.
arc more iliaint'trically opposite to cacli otlior tlian tlic case of Earl Ferrers and tliat
now bi'fore you. Lord Ferrers was divorced from ids wife i)y act of Parliament;
and a person of the name of Johnson who had i)een his steward, had t.iken part
with the lady in that proceedinjr, ami had conducted the business in carrvinu tlie
act tliroui?ii tlietwo Houses. Lord Ferrers consequently wished to turn him out
of a farm, wliicli lie occupied nnder him; but his estate beinj^ in trust Johnson
was supjiorted by the trustees in his ptjssession; there were also some differ-
ences respectinii eoal mines; and in conse(|ueuee of both transactions, Lord
Ferrers took uj) the most violent resentment aijaiust him. Let me here observe,
itentlenien, that this was not a resentment founded upon any illusion; not a
resentment forced upon a distempered mind by fallacious imatjes, butdependiiiij
upon actual circumstances and real facts; and acting like any otlii-r man nnder
tlie influence of maliiiiiant passions, he repeatedly declared that he would be
revenged npon Mr. Johnson, particularly for tlie part he had taken in depriving
him of a contract respect ing the mines.
"Now su])pose Lord Ferrers could have showed that no difference had ever
existed rejiardini!; his wife at all — that Mr. Johnson had never been his steward,
and tliat he had only, from delusion, believed so wlieii his situation in life was
quite different. Suppose, further, that an illusive imaiiination had alone
suggested to him that he had been thwarted by Johnson in his contract for tiiese
coal mines, there never having been any contract at all for coal mines: in short
that the whole basis of his enmity was without any foundation in nature and had
been shown to have been a morbid image imperiously fastened upon his mind.
Such a case as that would have exhibited a character of insanity in Lord Ferrers
extremely different from that in wliicli it was presented by the evidence to liis
peers. Before tliem he only appeared as a man of tnriiulent passions; whose
mind was disturbed by no fallacious images of things witliout existence; whose
quarrel with Johnson was founded upon no illusions, but npon existing facts;
and whose resentment proceeded to the fatal consummation with all the ordinary
indications of mischief and malice; and who conducted his own defence with
the greatest dexterity and skill. Who then could doubt that Lord Ferrers was a
murderer? Wlien the act was done he said, ' I am glad I have done it. He was
a villain and I am revenged.' But wlien he afterwards saw that the wound was
probably mortal, and that it involved consequences fatal to himself, he
desired the surgeon to take all possible care of his patient, and, conscious of his
crime, kept at bay the men who came with arms to arrest him ; sliowinji from the
beginning to tlie end, nothing that tloes not generally accompany the crime for
which he was condemned. He was proved to be sane, to be a man subject to
unreasonable prejudices, addicted to absurd practices, and agitated by violent
passions; but tlie act was not done nnder the dominion of uncontrollable dis-
ease; and wlietlier the mischief and malice were snbstantive, or marked in tlie
mind of a man whose passions bordered npon, or even amounted to insanity, it
did not convince the lords, that, under all the circumstances of the case, he was
not a tit object of criminal justice.
" In the same manner, Arnold, who shot at Lord Onslow, and who was tried at
Kingston soon after the black act passed, on the accession of George I., Lord
Onslow having lieen vigilant as a magistrate in suppressing clubs, which were
supposed to liave been set on foot, to disturb the new government. Arnold had
■
214
THE LE(iAL Tt>T 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,
<ted by all
ood under
J was not
^presented
. In sueli
:re wanted
unhappy
who had
must be
she is at
I confess,
at doubts
d strong
ted upon
ited upon
^entmcnt.
taken her
onally to
's house,
shooting
lent long
d not act
reveuirc
Ideration
sentment
she had
liiin; and
r injured
her, — let me suppose, in short, that she had never seen him In her life, but that
her resentment had been founded on the morbid delusion that Mr. Krriugton,
who had never seen lier, had been the author of all her wrongs and sorrows; and
that, under tliat diseased impression, she liad shot him. If that liad been the
case, gentlemen, she should have been acquitted upou the opening, ami no judge
would have sat to try such a cause ; the act ilst'lf would have been decisively
characteristic of madness, because being founded upon nothing existing, it could
not have proceeded from malice, which the law reiiwires to be charged and proved,
in every case of murder as the foundation of a conviction.
" Let us now recur to the cause we are engaged in, and examine it upon these
princliiles, by which I am ready to stand or fall, in the judgment of the court.
" You have a man before you, who will ajipear, upon the evidence, to have re-
ceived these almost deadly wounds which I described to you, producing the im-
mediate and immovable effects whicli the eminent surgeon, whose name I have
inentioned, will prove that they could not but have produced; it will appear,
that from that period he was visited with the severest paroxysms of madness,
and was repeatedly coiitlned with all the coercion which it is necessary to prac-
tice upon lunatics; yet what is (luite decisive against the imputation of treason
against tlie person of the king, his loyalty never forsook. Sane or insane, it was
ids very characteristic to love his sovereign and his country, although the delu-
>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
■<ociety, or to bring confusion upou my country, but if you (ind that the act was
I'ommitted wholly under the dominion of insanity; if you an? satisfied tliat he
went to the theatre contemplating his own destruction only, and that when he
tired tlie pistol, he did not maliciously aim at the jierson of the king, you will
21(5
TIIK LEGAL TEST OF INSANITY.
Notes.
tlieii 1)1' bound, even upon llio princlpk' whit-li the atlorncy-iri'iicrul himself
hiiinanely iiiul honorably stated to yon, to accpiit this unhappy prisoner. If, in
brinuliifj these conslcUjrations hereafter to the standard of the evidence, any
donbts slionld oeenr to yon on the snbjeot, the qnestlon for yonr deeision will
then be, which of the two alternatives is the most probable, — a dnty which you
will perform by the exercise of that reason of which, for wise i)nrposes, it lias
pleased (lod to deiirivi" the nnfortnnate man whom yon are tryinit; your sonnd
understandinj^ will easily enable you to distinsjnish iullrmities which are misfor-
tunes from motives which are crimes. Before tlie day ends tlio evidence will be
decisive npon this subject.
''There is, however, another consideration which I ousht distinctly to present
to you; because I thinl< that more turns ni)on It than any other view of the sub-
ject; namely, whether the i)risoner's defeiute can be impeached for artilice or
fraud; because 1 admit, that if at the moment when he was a|)prehended, there
can be fairly imputed to him any pretence or counterfeit of insanity, il would
taint the whole case, and leave him witliont protection; but for sucli a suspicion
there is not even the shadow of foundation. It is repelled by the whole history
and character of his disease, as well as of his life, indt'pendent of it. If you
were trying a man under the black act, for shooting at another, anil there was a
doubt upon the question of malice, would it not be important, or ratlier decisive
evidence, that the prisoner had no resentment aij;alnst the pr()secut(n', but that
on the contrary, he was a man whom he had always loved and served? Now tli(
prisoner was maimed, cut down, and destroyed in the service of the kiiiu.
" ( Jentlemen, another reflection presses very stron<j;ly on my mind, whicli I llnd it
dinicnlt to suppress. In every State there are political differences and partio
and individuals di.saffected to the .system of irovernment under whidi they live as
subjects. Tliere are not many such, I trust, in this country; but whether there
are many or any of such persons, there is one circumstance wliich has jieculiarly
distinjinished his majesty's life and rei<;n, and which is in itself as an host in the
prisoner's defence; since, amidst all the treasons and all the .seditions which
liave been chari^ed on reformers of }:tovornment as conspiracies to disturb it, no
hand or voice has been lifted up against the person of the king; there have, in-
deed, been unhappy lunatics, who, from ideas too often mixing themselves with
insanity, have Intruded themselves into the palace, but no malicious attack has
ever been made upon the king to be settled by a trial; his majesty's character
and conduct have been a safer shield than guards, or than laws, (ientlemen, I
wish to continue that sacred life, that best of all securities; I seek to con-
tinue It under that protection where it has been so hjng protected. We are not
to do evil that good may come of it; we are not to stretch the law to hedge
round the life of the king with a greater .security than that which the Divine
Providence has .so happily realized.
" Perhaps there is no principle of religion more .strongly inculcated by the
sacred Scriptures than by that beaulilnl and encouraging lesM)n oi our Savior
himself upon confidence in the divine protection: 'Take no heed for you ■
life, what ye sliall eat, or what ye shall drink, or wherewithal ye .sliall be clotlu •.! ;
but seek ye first the kingdom of God, and all these things shall bo added unto
you.' By which it is nndoul)to<lIy not intended that we arc to disregard the
conservation of life, or to neglect the means necessary for its sustenation; nor
HADFIKLI) S (ASK.
217
I'lTrcr's CISC.
tliiit we iirc to be ciircli'ss of wliatcvcr iiiiiy coiitribiiti' to our coinfort and liappi-
ncss; hilt tliat \vc slioiilil he coiiti-iiti'tl to rccflvi' tlifiii as tliry an- ^ivcii to iis,
and not seek tlicni in tin- violation of tho rnlc and order appointed for the p)v-
crnnient of the worhl. On this principle nolhinii can more tend to the .secnrily
of his majesty and his jjovernnient, than the scene which this day «'xhil)its in the
calm, hnmane, and impartial adndnistration of jnslice; and if In my part of tliis
go.lenm duty, I have in any manner trespassed npon the just secnrily provided
for the pid)li<; happiness, I wish to he corrected. I declare to yon, solemnly, that
my only aim has been to secnre for the prisoner at the bar, wliose life and deatli
arc in the balance, that he slionld be judued rittidly by tin- evidence and tlie law.
I have made no appeal to your passions, \on have no riiiht to exercise them.
This is not even a case in whicli. If the prisoner be fonnd liuilty, the royal mercy
slionld 1)0 connselled to interfere; lie l.s either an acconntaljle beinjr, or not u< -
conntable; if he wasnnconscions of the mischief he was entailed in, tlu; law is
a corallary, and he is not i^nilty; bnt if when the evidence closes, yon think In'
was conscious, and maliciously meditated the treason lie is charixed with, it is
impossible to conceive a crime more vile and detestable: and I slionld consider
the kimt's life to be ill-attendod to, indeed, if not protected by the full vitror of
the laws, which are watchful over the security of the meanest of his sntijects. It
is a most important cousideration Ijotli as it rei;ards the prisoner, and the coin-
numity of wliidi lie is a memi)er. Gentlemen, I leave it with you."
The prisoner was ac(iuitted by the jury on the i^round of insanity at the time
tlio act was committed.'
' On the trial of I.urd Kcrrcrs (Kerrevs*
Case, I'.l How. St. Tr. '.)l."i), in 17(10, for tlie
murder of Mr. JolmsfMi, tlio solicitor gen-
end laid down the law to the IIou.se of
Lords as follows: My lords, the law of Knj;-
land which is wisely adapted to punisli
crimes with severity, for the protection of
mankind and for the honor of governuient
])rnvides, at the same lime, with the great-
est equity, for the imbecility and imperfec-
tions of human nature. Therefore, My Lord
Chief Justice Ilalc, the weight and authority
of whose writings are known to your lord-
ships and to the whole Kingdom, explains
the law upon this subject at large, with his
usual clearness and accuracy. It is in his
first volume of the History of the Pleas of
the Crown (fol. 30) where he tracco .".11 the
distinctions which the natuvo of this rpies-
tion admits, as it concern.' tho trial of crim-
inals for capital otfences. I will collect the
substance of what he says, and submit it to
your lordships, as founded not only in law
and in practice, but in the most unerring
rules of reason and justice, ttl} .ords, he
begins with observing that " there is, first,
a partial insanity of mind, and there is,
secondly, a total insanity. First, partial In-
sanity is either in I'espect to things, when
they, who are competent as to some matters,
are not so as to others ; or el.se it is partial in
respect to the flogree. Tills Is the condition
of many, espcially of melancholy persons.
As to .such, a partial Insanity will not excuse
tlu'iii; for (he says) that persons who nii'
felons of themselves, and other felons are
under a degree of it when they offend." It
is dillicult to draw the line which divides
perfect from partial insanity; and he refers
it to the discretion of the judge and jury
who must duly weigh and consider the
whole, " lest on one side, there be .'i kind of
inhumanity towards the defects of human
nature; or on the other side, too niucli in
dulgence be given to great crimes." Then,
my lords, he speaks of the general rule,
which he would choose to lay down, as the
best measure of his own judgment; and it
is: "That a person who has ordinarily as
great a share of understanding, as a child of
fourteen years of age, is such a person a*
may be guilty of treason or felony. Sec
ondly, as to total insanity or alienation of
mind, whicli is perfect madness, this (Lord
Hale agrees) will plainly excuse from the
guilt of felony and treason." But he dis-
tinguishes under the head of total insanity
between " that species which is fixed and
218
THE LEOAL TE8T OF INSANITY.
Notes.
§ 6. Test of Knowledge ot Right and Wrongr in the Abstract. — Tlu' next tost
wliicli wo lliid was fi'wvw to the jury liy I-ord Maxsi'iki.i*, at tlic {J\t\ Hailcy,
ill IHlii, on till- trial of Hciiiiiiriiain.' Tlie prisoiu-i* was liulictfd for tlie inurder
of lion. Sponcir I'crcivai, lliiu prime minister of En;;land, and tlie defence
was insanity. JiOrd Manskiki.d, in eiiaru;inij; tlte jury, told them, tliat in
onier to snpportsucli a defence, it on;iiit to lie proved l)y tlie most distinct and
un<|nestloiial)ie evidence, tiiat the prisoner was ineapahlc! of jiidjtinfX l)etween
rifjht and wroiisj;; tiiat, in fact, it must bo proved lieyond ail douht, that
at tlie time lie committed tlie atrocious act witli which he stood cliarjied, he
did not consider that murder was a crime apiinst the laws of (iod and nature;
and tliat there was no otiier proof of insanity which would excuse nmrder or any
other crime. Tliat in the sjiecies of madness called " lunacy," where persons are
suljject to temporary paroxysms, in which they are yuilty of acts of extravagance,
such persons conmilttinij; crimes when they are not affected by the malady, would
be, to all Intents and purposes, nmenable to justice; and that so long as they
could distiiiiiuisii jiood from evil, they would be aiisweral)le for their conduct.
And that in tlie species of insanity in which the patient fancies the existence of
Injury, and seeks an opporliinity of {jratifyiiifj reveufje by some ho.stilc act, If
siidi a person l)e capable in other respects of distin'jjuishing right from wrong,
tiure would l)e no excuse for any act of atrocity which he might commit under
this description of derangement. IJellingham was convicted and lianged. In the
permanent, anrt hinacy which coinee by
liL'iiuil.s oi- fits." Of tliis laller liind lie ex-
liresses liim-self lliiis; " Cnnios (loinniittcct
by lunatics in siirh (listi'iniiers, are under
the same JudKnu-iit as llmse conunittcd by
men partially insane. The per-^on who is
absolutely mad for a day, killing a man in
that distemper, is ccpially not guilty, as if he
were mad without iiilermis.^ion. Hut such
liersone as have their lucid intervals, have
usually, in those intervals at least, a ('(onpe-
tent use of reason; and crimes committed
by them are of the same nature, and punisli-
able in the .same manner as if they had no
such defect." My lords, afterwards, he
treats of that insanity which arises from
drunkenness, and lays it down that " by the
law of Knjfland, such a person shall have
no privilege from their voluntary contracted
madness, but shall have the same judgment,
as if he were in his right senses (unless it be
occasioned by medicine unskilfully admin-
istered, or poison accidentally taken)." In-
deed, if by such practices an habitual fixed
frenzy be caused, it puts the man in the like
condition, with respect to crimes, as if that
frenzy were at flrst involuntarily contracted.
My lords, the result of the whole reasoning
of this wise judge and great lawyer (so far
as it is immediately relative to the present
purpose), stands thus: "If there be a total
permanci.-t want of reason, it will acijuit
the prisoner. If tlieie be a total tem-
porary want of it when the offence was
committed, it will ac(iuit the prisoner; but
if there be only a partial degree of in-
sanity mixed with a partial degree of rea-
son, not u full and complete use of reason,
but (as Lonl Hale carefully and emphati-
cally expresses himself) a compclcnt use
of it, sufllcient to have restrained these
passion'! which produced the crime; if there
be tliougiit and design; a fa<-.ully to dis-
tinguish the nature of actions; to discern
the difference between moral good and evil;
tlicn, upon the facts of the offence proved,
the judgment of the law must take pliicc.
My lords, the fpiestion must therefore be
asked: Is the noble prisoner at the bar to
be acipiitted from the guilt of murder on
account of insaniiy? It is not pretended to
be a constant, general insanity. Was he
uiwler the power of it at the time of the
offence committed? Could he, did he, at
that time distinguish between good and
evi'? The same evidence which establishes
the fact, jiroves at the same time the capa-
city and intention of the noble prisoner.
Did he weigh the motives? Did he proceed
with deliberation? Did he know the conse-
<iuences?— Tlie prisoner was convicted and
executed.
' Coll. on Lun. C;!0.
I'AIJTK ILAK UKJIIT AND WIJONO TEt^T.
21U
1{. y. <»fforil — U. V. Oxford.
i
sump year tho sniiio tist, was applied Iw Lk ni.AX<', J., on the trial <»f Bowler,' —
the ability to illstluyulsli l)etwt'cn rljjlituml wroiiy; In the ub^traet-
§ C. Test of Knowledere of Right and Wrong as Applied to the Particular
Case. — A few years later, however, this t«st was somewhat nuMlllled. In Jirxv.
(tford,'' the prisoner was indieted for the nmrder of a person named Chlsnall, by
shootiii}; him with a j;nn. The defenee was Insanity. It appeared that the pris-
oner labored under a notion that the Inhabitants of IIa(llei;:li, and i)artienlarly
Chlsnull, the deceased, were eontlnnally Issninj^ warrants against him with In-
tent to deprive hlni of his liberty and life; that he would frequently nnder the same
notion, abuse persons wliom he met on tho street, and with wiiom he liad nevui-
had any deallnjis or ae(iualntanee of any kind. In ids waist-eoat puelxit a paper
wasfonnd lieaded, "List of lladlei;;h conspirators against my life." It contained
forty or fifty names, and amonj^ them "Chisnall and his family." Tliere was
also found, anionsj; Ids papers, an old summons about a rate, at the foot of which
he had written, "This is the be^iinnlnfi of an attempt against my lif«'." Several
medical witnesses deposed to their belief, that from the evidence that they had
heard, the prisoner labored under that species of Insanity which Is called mono-
mania; and that he committed the act while und«'r the Influence of thatdi.sorder,
;ind mlfjht not be aware that in firin;? the jrun, his act Involved the crime of mur-
der. Lord Lynpiit'Kst, C. B. (in summing up), told the jury that they must bo
satisfied, before they could acfjuit the prisoner on the <rround of insanity, that he
did not know, when he connnltted the act, what the effect of It, if fatal, would be,
with reference to the; crime of murder. The <|nestlon was, did he know that he
was committing an offence aj^ainst the laws of (iod and nature? His lordship
referred to the doctrine laid down in Bdlinghairi* s Case by Sir James Manskii'.i.d,
and expressed his complete accordance In the ob.servations of that learned judj;e.
The jury acquitted the prisoner on the frround of Insaiuty.
In Beg. v, Oxford,^ the prisoner was Indicted for shootin<j at tho Queen. There
was strong evidence that he was Insane. Lord Dk.nm.vx, in sunnning U|) to the
jury, said: "The question for your consideration on the facts are, whether the
prisoner did fire the pistols or either of them at her Majesty, and whether these
pistols, or either of them, were or was loaded with ball, at the time when they
wer. so fired. These are matters of fact; and If you think they are proved,
then you will have further to inquiro whether the prisoner was in the pos.session
of his reason, so as to be responsible for what he did. These matters are quite
distinct, and I think it will be the better way to abstain from making any remark
upon the defence, until I have gone through the facts proved on the part of the
prosecution, as to the connnlssion of the act itself (his lordship read the evidence
for the prosecution, commenting occasionally on it as he passed along). On the
point whether the pistols were loaded or not, he observed, one witness says,
' the prisoner was about five or six yards from the carriage when lie discharged
the pistol, and on the right side of it; the report of the pistol attracted my atten-
tion; and I had a distinct whizzing and buzzing before my eyes, between my face
and the carriage; ' another witness says, 'it seemed something that whizzed
past my ear ; as I stood, it seemed like son\ething <|uick passing my ear, but what
' Hex f. Bowler, Coll. on I.un. (173.
- 5 ('.At P. lt;9 (ISil).
9('. &P. ,V2.5(1840),
220
THE LEGAL TEST OF INSANITY.
Notes.
I could not say.' Tliis lathe only dii 'f!t evidence. I have no mcansof furnish-
inj^you with any observation on tliat evidence; it is not matter of law, and you
must briuij your experience to l)ear upon it, and couple it •vith tlie otlier facts of
the case. With respect to tlie letters written by the prisoner, whether he really
believed in the existence of any such society as is mentioned in them, or was
only amusing himself witli supposini; the existence of such a society, is a mat-
ter wliich Ave cainiot determine otherwise than by conjecture. Then the ver-
important (piestion comes, whether the prisoner was of unsound mind at the
time when tlie act was done. Persons prima fncic must Ix' taken to be of sound
mind till the contrary is shown. But a person may conunit a criminal act, and
yet not be responsil)le. If some controllinsi disease was, in truth, the acting
power within him which he could not resist, tlien he will not be responsible.
It is not more important than dillicult to lay down tlie ride l)y which you are to
be governed. Many cases have been referred to upon the subject. Hut it is a
sort of matter in which you ca. mot expect any precedent to be found. It is the
duty of the court to lay down the rule of the En.';Iish law on the subject; and
even tliiit is dillicult, l)ecausc the court would not wish to lay down more than is
necessary in the particular case. As to IladfiekVs Case, Mr. Erskiue would lose
nothing by laying down the rule most widely. It must not, therefore, be .said,
that the admission of the counsel is to def'ide the matter. On the part of the de-
fence it is contended that the prisoner at tlie bar was non compos mentis, that is
(as it has been said), unable to distlnguisli riglit from wrong, or in other words,
that from the effect of a diseased nund, he did not know at the time that tlie a(;t
he did was wrong. As to the grandfather, two points will arise, whether his
conduct was evidence of insanity, or only of violence of disposition; and if of
insanity, whether the insanity was or was not hereditary? (His lordship read
the exidcnce of the medical and other witnesses on the subject of insanity, and
said) : It my be tiiat the medical men may be more in the haliit of observing
cases of this kind than other person^'; and there may l)e cases in which medical
testimony may be e.^sential; but I cannot agree with the notion that moral in-
sanity can be better judged of l)y the medical men than by others. As to the
father of the prisoner, the question will lie, whether there was a ri'al absence of
the power of reason — the power of controlling hiinscif, or whether it was only a
violent, or even a cruel disposition; and th(>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 nii<rht have done so maliciously, in
tlie sense I liave explained to you, and knowing rii^lit from wrong, but Iinme-
iliately afterwards have repented and tried to prevent the iniurious consequence.'?
of his own act." The jury in the first instance found the prisoner not guilty on
tlie ground of insjiiiity; but in answer to the judge, said that they tlioiiixht the
prisouer was hi such a state of mind that he did not know that the effect of
1 1 F. &F. ti9(I*5S).
224
THE LEGAI. TKST OF INSANITY.
Notes.
^■* w%
A
m.
hurninjr tlic hovol would be to injure any other person. Chompton, J. — That is a
verdict of not •rtiiliy.
In Jicfj. V. Richards,^ tlie prisoner, aged sixty-five, was charged with murdering
lier husband, age seventy, l)y ijeating liini ai)out tlie liead witli Ins crutches.
Tlie gen-'ral eviflence for the defence was jirineipally of weal<ness of mind and
lowness of spirits. A medical witness stated that the prisoner was suffering from
that form of nu'utal disease in which slie would be subject to paroxysms or tits
of madness, and that from his knowledge of her and from tlie evidence, he
thought it likely she Avas under the influence of one of those paroxysms when the
offence was committed, though there were no symptoms of this having been the
case. There was some sliglit evidence of the prisoner having once made an
attempt to drown herself. She said she liad killed tlie deceased to get rid of
him because lie was dirty; that she had intended to do it ■md was not sorry for
it. Ckowukk, J., (to tiie jury) after stating the law as to insanity: It is for
you to say whether, at the time of the act done the prisoner knew the nature of
the act done, or that it was a wrong act. If she were in a state of mind in whicli
she might have destroyed herself as she formerly attempted, you may probably
think she would not be responsible for her acts, but tlie onus of proof as to this
lies upon her.
A medical witness was saying that he did not consider the prisoner to be re-
sponsiljle for ner acts,
CiH)Wi)i:u, J. — We do not want your opinion as to her responsibility, simply give
your opinion as a skilled witness, from what you know of the prisoner, and from
the evidence you liave heard of the state of her mind.
The verdict was not guilty. The circumstances of this case were peculiar.
The prisoner appeared to be very infirm and much older than she was. It was
suggested that she was not pliysically capable of the violence causing the death,
except on the supposition of the additional strength imparted by a state of frenzy.
In lief/. V. Toiciiley,'' the prisoner was tried before Maktix, B., forthe murder of
Elizabeth Goodwin, a female to whom he had been formerly engaged to be
married, but who had a little while before broken off the engagement. Mautin,
B., charged the jury as follows: The act of the prisoner amounted to murder,
subject only to the question of insanity. No one could doubt that the prisoner
knew what he was doing and that it would cause death. Unless he was insane,
therefore, under tlnse circumstances he was guilty of murder. No word was
more vague than insanity. Probably there was not one of the jury but was
acquainted with some man who was in the habit of doing extraordinary actions,
and of whom people said, " Why that man must be Insane! " Two years ago
an Investigation took place into the condition of mind of a gentleman from the
eastern part of the county. There was a long inquiry, whicli excited great
public interest, and there was a great divergence of opinion among medical men.
Great eccentricity of conduct on the part of that person was shown, yet there was
nothing to relieve hiin from criminal responsibility. Probably he was not the
wisest of men, yet he was of suflicient intellect to take care of himself and avoid
doing injury to others. There was a somewhat similar case at the last Glouces-
ter assizes in which a young lady was under the impression that a riumber of
' 1
' IF. &F. 87 (1858).
2 3 F. A F. 839 (18««).
J. — That is a
th murdering
his crutches,
of mind and
ufferingfrom
xysnis or fits
evidence, lie
snis wlicn tlie
ing been the
lice made an
to get rid of
not sorry for
ity: It is for
Liu; nature of
uind in whicli
nay probably
oof as to this
iner to be re-
V, simply give
aer, and from
ere peculiar,
was. It was
g the death,
ite of frenzy,
he murder of
[laged to be
t. Mahtin,
to murder,
the prisoner
was insane,
\o word was
ry but was
ary actions,
o years ago
an from the
xeited great
nodical men.
et there was
ivas not the
If and avoid
ist Glniices-
Vi umber of
PARTICULAR RIGHT AND WRONG TEST.
225
K. «. Townlev.
ladies had formed an unfounded dislike to her. In all probability she was labor-
ing under a delusion with respect to those persons, yet she was as subject to the
criminal law as any person in that court. What the law meant by an insane man
was a man wlio acted under delusions, and supposed a state of things which did
not exist, and acted thereupon. A man who did .so was under a delusion, and a
person so laboring ^vas insane. In one species of insanity the patient lost his
mind altogether and had nothing but instinct left. Such a person would destroy
liis fellow-creatures as a tiger would his prey, by instinct only. A man in that
state had no mind at all, and, therefore, was not criminally responsible. The
law, however, went further than that. If a man laboring under a deli.s'on did
something of which he did not know the real character, something of the effect
and conse(iuences of which he was ignorant, he was not respousiljle. An ordi-
nary instance of snch a delusion was when a man fancied himself a king and
treated all around him as his subjects. If such a man were to kill another under
the supposition that he was exercising his prerogative as a king, and that ho was
called upon to execute the other as a criminal he would not be responsible.
The result was that, if the jury believed that at the time the act was committed
the prisoner was laboring under a delusion, and believed that he was doing an
act which was not wrong, or of which he did not know the consequences, he
would be excused. If, on the other hand, he well know that his act would take
away life, that that act was contrary to the law of God and punishable by the
law of the land he was guilty of murder. That was the real question they had
to try. In his opinion the law upon the subject was best laid down by Justice
Lk Blanc, as able a judge as ever sat on the bench. Justice Le Blanc, in the
lase alluded to, observed to the jury that it was for them to determine whether
the prisoner, when he committed the offence with which he stood charged, was
incapable of distinguishing right from wrong, or under the influence of any
illusion which rendered his mind at the moment insensible of the nature of the
act he was about to commit; since in that case he would not be legally responsi-
ble for his conduct. On the other hand, provided they should be of the opinion
that when he committed the offence he v.'as capable of distinguishing right from
wrong, and not under the influence of such an illusion as disabled hiin from dis-
cerning tliathe was doing a wrong act, he would be amenable to the jusllceof his
country and guilty in the ej'e of the law. That in his (Baron AIautin's) opinion
was a correct statement of the law. He should not allude to Bfllinyhmn's Cai^e,
because many were of opinion that that was an unsatisfactory trial. In Offurd's
Case, the late Lord Lyxpiukst, told the jury that they must be satisfied, before
lliey could acquit the prisoner on the ground of insanity, that he did not know
when he committed the act what the effect of it, if fatal, would be. With refer-
ence to the crime of murder, the question was, did he know that he was
CDinmitting an offence against the laws of God and nature? In Oxford^s Case,
Lord Dkn.man said: «' Something has been said about the power to contract and
to make a will ; but I think that those things do not supply any test. The ques-
tion is, whether the prisoner was laboring under that species of insanity which
(satisfies you; that he was (piite unaware of the nature, character and conse-
quences of the act Avliich he was committing, or in other words, whether he was
under the influence of a diseased mind, and was really unconscious at the time
lie wag committing the act that it was a crime." His lordship continued that the
226
TUK LKGAL TEST OF IXSAMTY.
Notos.
jury must judge of the act by the prisoner's statements and by what he did at the
time. Unless tlu-y were satisfied, — and it was for tlie prisoner to nial^e it out, —
tliat he did not know tlie conse(iuenees of his act, or tliat It was ai^ainst tlie law
of God and man, and would subject him to punislunent, lie was guilty of nnirder.
His lordship tlien went most carefully through the evidence. TIio prisoner's
letters appeared to be as sensible letters as he had ever read. Again, tiie rea.son
the prisoner gave for his act, was, " she should not have proved false to me."
Now, if his re.al motive was th-* he conceived himself to have been ill used, and
either from jealousy of the i. i who was preferred to him, or from a desire of
revenge upon her, committed the act, that would be murder. Those were the
very passions which the law required men to control, and if the deed was done
under the inlluence of those passions there was no doubt that it was nmnler.
The j)risoner's e.ipression that he should be hanged for it indicated that he knew
the consequences of his act. Another reason he gave for what he had done was,
"The woman who deceives me must die." If a young lady promised to marry a
man and then changed her mind, it might truly be said that she deceived Iiini;
)>ut 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 *-<t of insanity, many men were rried who did not know that
difference. In rruth it was no test at all. The itk-a of a conspiracy was a delu-
sion; but the mere setting himself up against the laws of (Jod and man was not
a delusion at all. Tlie question for the jury wa<, was the prisoner ins.ine, and
did he do tlie lot under a delusion believing it to be other than it was? If he
knew what lie was doinn, ajid tliat it was likely to cause death, and was contrary
to the law of (iod and maiu and that the law directed that persons who did such
a<"ts should be punished, he w»s guilty of murder.
Verdict, (fnilty.
In Rfig. V. Law,' tried before Erlf, C. .T., in 1862, the prisoner, a female, who
2 V.& K. 8,36 1862).
I'AUTICULAIl KKHIT AND WIiON(} TKST
90
•Ji
i?
11. V. Law — U. V. Southey.
rtnxlty.
lale, who
was indicted for tlio murder of lier liusbaiid and ciiild, was a person of weak
intt'llfct, wlio liad l)een inarrietl to a ialjorer, her dec<'ased luisband, for seven
years, and liad liad four cliildren by luni, of whom the ehild slie liad liillod was
tiie j'oungest, and was only a few montlis old. After lier coiillnement slie had
been ill some time, and for want of food and necessaries became in the lust de-
gree prostrated by physical weakness. Her husband having been .sent to prison
for a month for some trilling offence, she, with her child, had gone into the
work-house, whither, on account of her weakness, she had to be taken inacarriage,
while there, she was attended by the doctor for a female disoriler, which caused
agreat loss of blood and by exhausting the vessels of the brain, tended to weaken
it, and so led to mental weakness, as well as to the utmost nervous depression.
She at times talked wildly of having seen devils, a bright light, etc., and the doc-
tor judged these to be natural and probable results of the causes mentioned, and
the chaplain, as well as the doctor, judged these to be signs of insanity. It
was even thought that she must be sent to a lunatic asylum, but the physical
symptoms abated under medical treatincnit, and with them the mental symptoms
likewi.se began to disa|)pear. They would, however (the doctor thought), be
likely to re-appear if anything occurred to re-exeile the i)hysical disorder of the
system. Still, when the month's imprisonment of the husbaiul had expired, and
he api)lied for his wife, it was doubled whether she ought to be sent home. How-
ever, she did so, on the 14th of January, after spending the day with her hus-
band's parents. While there, they were reading the JJible together, and in making
remarks on Christ's temptation, she said she had been temi)ted by the devil
sometimes to cut her husband's throat, or her own, and she aid do so very likely
some day. They went home in the evening, ami early next morning she roused
her mother, telling her at first that some one had cut her husband all to pieces, and
then tliat she had killed him ; and .she subsequently said slie had killed him with a
chopper as he lay asleep, and afterwards killed the child; and that while she was
doing it, she heard the devils blundering up and down the stairs, and making a
dreadful noise, etc. Upon this evidence, without calling on the prisoner's coun-
sel, Eklk, C. J. (to the jury) : Are you of the oi)lnion that the prisoner was iu
a state to know that she was doing what was wrong. There was u morbid action
of the brain; there was a state of disease resulting from cluldbirth, and other
cau.ses which might lead to insanity; and tliere were before the act in question,
delusions of the senses, which the medical men consider, and might well consider,
symptoms of insanity. She seems to have fancied she saw and heard devils
even wbnn no one was iu the house alive but herself. \i so, that was a delusion
of .such a nature as to indlctite in.sanity. Her killing her child at the same time
was no doid)t under the same influence. It is for you to say whether upon such
evidence you consider she was in such a state as to know the nature of her ac-
tions, or to be aware that she was committing a crime. If not, then it would be
proper to actiuit her, on the ground of insanity.
The jury at once found a verdict of not guilty, on the ground of insanity.
In Reg, v. Sotithcy,^ tried before Mkllok, J., in i8(i5, tlie prisoner was indicted
for the murder of his wife. He pleaded insanity at the time and also present in-
sanity. It appeared that his real name was Forwood, that he had been married
1 4 F. &F. Gt.
228
THE LKGAL TEST OF INSANITY.
Notes.
fourteen years ago, and was then carrying on business at Ranisgate. Two or
tliree years after tlie marriage, liowcver, lie left tluit place, leaving his wife and
child there behind him, and went to London, where he lived by the name of
Southey Since then he '.ad never seen his wife, or leturned to Ramsgate. In
the meantime, it appeared that he had become a marker at billiards, and he had
formed a connection with a Mrs. White, and while this connection subsisted a
year or two ago, he got her to go and see the Earl of Dudley, with a view to in-
duce him to pay a large sum of money alleged by the prisoner to have been lost
to him by the earl's l)rother at billiards. Tlie demand was refused; the demand
came before the police court, as an attempt to extort, or Intimidate ; and the
prisoner, last year, wrote a long letter to a daily paper, containing a perfectly
coherent history of his life, and an account of the particular matter. After this,
shortly before the murder in question, Mrs. Wliite left him and went to Australia;
and the prisoner, wlio evidently resented this, went to lier husband and got pos-
session of her three boys — sons of theirs — and took them to a coffee-house,
where he left them in bed, and where they were found dead next morning. This
was the morning of the 9th of August. On the evening of tliat day, he went to
Ramsgate disguised with false beard and moustache, and a pair of green specta-
cles, and provided with a pistol revolver, witli live cliaml)ers, all of which were
loaded with ball ; and having found out where his wife lodged, managed to get
access to her at the liouse of a friend, and desired to be alone with her. She,
however, at first objected to this, and he then made an appointment Avith her for
the next morning at the .same house. He came tlierc the next morning and for
some time conversed sensibly; still, however, pressing her for an interview witli
her alone; but desiring tliat their cliild should be with them. This last was not
acceded to, but his wife went witli him alone, and they sat together nearly half an
hourtill the child came in. In five minutes afterv.-ards, reports of fire-arms were
heard, and it appeared that after shooting both his wife and child, he was taking
off his disguise, when, before lie had time either to reload his weapon or depart,
he was seized by one of the witnesses until tiie police arrived.
Under the body of deceased was found a copy of his letter, cut from the news-
paper in wliich it appeared. When asked wliy lie had done this deed, he said:
" She is better off; had she lived, she would have had more trouble; for if I had
returned to London, it would have been under sentence of death!" adding,
«* What have I left behind! " or " Wliat have I done! " Allusions which it was
suggested referred to his murdering Mrs, White's three sons; evidence of which,
therefore, was admitted to explain the allusion, and rebut the evidences of insan-
ity, which it was intimated (as already suggested) would be set up.
When before the magistrates, he read a long written statement, acknowledging
that he had taken the children to the place where they were found; and throw-
ing the " responsibility for his acts " npon " society," and upon, in particular,
eminent persons whom he denounced, and to whom, it was to be recollected he had
applied for pecuni.ary relief. Wliile in prison he wrote sevenal sensible letters,
and sent a telegram to a friend as to his trial, which is in these terms: '* My life
is over; I shall have to justify myself from terrible charges. See . I want
her brother," etc.
Mklloh, J., in summing uj) tlie case to the jury, said the first question for
them was, whether the prisoner was in a fit state to be tried, or in such a state
PARTICULAR RIGHT AND WRONG TEST.
229
R. V. Soiitlu'V,
of mental incapacity as to bo unalilc to comprehend tlie nature of tlie proceed-
ings and tlie evidence ajialnst him. If so, then tluit lindliig would be recorded,
and ho would be remanded until he was able to talie his trial. If lie was sane
now, then the question would arise, whether he was guilty of tlie crime of wliich
ho was charged. The defence set up for the prisoner was insanity. Not a sud-
den frenzy — not a sudden excess of homicidal mania or fury, but as was said,
chronic and permanent insanity. Insainty now, and insanity then, insanity such
as to disable him from knowing riglitfrom wrong. Now, was tlie defence sus-
tained? It was for those who set it up to sustain it by evidence. By tlio law of
England, every man was presumed to be sane until the contrary was shown. It
would be most dangerous if it were otherwise, and when a person was to l)e
saved from tlie consequences of his acts by this defence, it must be siiown, from
circumstances, or positive testimony, that the person at tlie time of the act wa?i
in sucli a state of mind, from disease, as to be unable to compreliend tiie nature
and quality of his acts, and to know whether ho was committing right or wrong.
A man might have been brouglit up unhappily, his mind miglit i)e ill-regulated
and ignorant; but tiiese were accidental distinctions of wliicli the law could not
take cognizance. It was impossible to make all men e(|ually moral or educated,
and if these distinctions were to be regarded, there would be an end of the crim-
inal law altogether. Comnuinting upcm the evidence of the medical witnesses
for the defence, the learned judge observed that, after all, the jury must give
themselves up to such testimony, but must exercise their common sense and judg-
ment upon it. Some medical men had theories about insanity wliich, if appliud
generally, would be fatal to society. Life could not go on if men who committed
great crimes were to be deemed insane upon these theories. The standard of
sense or responsibility they set up was far too high for common life and human
society. And when medical men came and stated that, from seeing a man once
or twice, they should say ho was insane; and not only so, but that he was insane
four months ago, tlie jury must exercise their common sense as to the grounds
given for this opinion. The learned judge, in commeuting on the medical evi-
dence for the defence, observed that the medical witnesses admitted (with one
exception) that the expressions of the prisoner, immediately before and after the
fatal act, showed that he understood its nature and knew whether it was right or
wrong. The learned judge also observed, that it appeared from tlie evidence for
the prosecution, that hysteria was quite different from insanity, and tliat the
general manner and demeanor of the prisoner while he had been in gaol showed
good sense and sanity of mind. It was remarkable, he observed, that thore was
no evidence as to his insanity in any former period of his life. No one who had
known him in his previous life said he was insane, or even regarded him as be-
ing so. And on the other hand, the gentlemen who had been in charge of the
man from the moment of his apprehension to the present time, give positive evi-
dence that he was perfectly sane. Such was the direct and positive evidence
on the subject of the prisoner's insanity. He need not say that the opinion of
persons who had observed a man for months was worth far more than that of
those who went to see him once for the very purpose of giving evidence that he
was insane. The jury must bear in mind that a man was presumed to be sane
until the contrary was shovn. And the jury could judge, in part, from their
own observation of the prisoner's demeanor in the dock. So much, then, for the
230
THE LEGAL TEST OF INSANITY.
Notes.
direct evldi'iice upon the question. The case for tlie prosecution, however,
rested a f^ood deal upon the whole of the eireutnstances of the case, and espe-
cially upon the clrcuinstaiices Immediately surrounding the act in question. The
jury were to consider whether these circumstances did not show that the man at
the time he committed the deed, knew that lie connnltted a crime. It was not
t'uoiiirh tliat some amount or degree of insanity was siiown. it must appear that
the prisomr did not know that he was doinj; wrong. The learned judge then
read and reviewed the general evidence In the case, pointing out the circum-
stances relied upon as showim:; design and deliberation, especially the design
made use of. l^p to tliat time tli(! jury must consider whether everything was
consistent with his being in tiu; fidl possession of his senses. Upon the face of it,
certainly, it looked as if he very well knew what he was al)()Ut. Tlie learned
judge then came to tlie evidence as to the circumstances of tlie murder, particu-
larly commenting upon the conversations with the prisoner. Ttiis, he observed,
was all very m;iterial as to tlio sanity of tiie prisoner. The learned judge ob-
served that the prisoner was seized Immediately after tiie act, and, therefore,
there was notliing in his not attempting to escape, as he must have known It was
Impossliile, and so as to the avowal of tiie act, being taken in the act, how could
he help acknowledging it. Tiiere were no proofs of insanity, and on the con-
trary, all the oilier circumstances of tiie act, seemed to show sanity. As to the
motive of the act, the learned judge observed that no one could dive into the
heart of a human being, or divine tlie secret motives of his actions. The ab-
sence, therefore, of all proof of a motive was not of the same weight as its
presenc(;. But here there was an allusion to his being under sentence of deatli for
anotlier murder which evidently meant the niunler of the boys, for he said he re-
ferred to what " he had done l)ehind," or " what he had left lieliind." Now, did
the jury doubt that lie knew he had done what the law regarded as a crime, the
doom of whieii was death. It appeared that the prisoner just after the act was
calm and collected, and the circumstances seemed to have shown great delibera-
tion; and till! statenn^nt he had written to read before the magistrates showed a
consciousness tiiat he had committed a crime. It was for the niry to say whether
there was any evidence of insanity. No doubt it was a strange and extraordinary
document ; but was there not " method in tlie madness?" Did it not ratlier show
an aim and purpose to mitigate and excuse liis crime? And immediately after
writing this account, tliere were letters, and messages, and a telegram, whicli
seemed to show perfect sense. These were most material. These inquiries were
most sensible and pertinent; did all this show any want of capacity to und'.T-
stand the cliarges against him? Notwithstanding all this, one medical man, and
only one, said lie Avas of opinion that he was not in a state to understand what
was going on. But as to that, the jury must form their own judgment, and upon
the whole evidence thej' must consider whether they were or were not satisfied
that he was now in a state to take his trial; and if so, then they must consider
the next and great question, whether at the time of the act he was or was not in
such a state of mind as to make that act murder? Every act of wilful killing of
a human being was prima facie murder, and it was murder unless the evidence
showed that tlie man was not in a .state to know that, in the eye of the law, what
he did was a crime. Was there anything In the case to satisfy their minds that,
at the time he did the act he did not know that it was wrong, and that it was a
TIIK KNOIJSII TESTS IN THE AMEKKAX COUKTS.
•>: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
l<nowledj;e of rii^iit and wron;; in the al)stract, and (4) tlie test of Isiiowlediie of
rijtlit and wronjj; as applied to tlie parlicnlar act, — only tlie fourth lias been
adopted at any time l)y the courts of tliis country; Init tliis test lias lieen received
witli sucli favor as to l)e at present well settled as tin; law of such cases in u
majority of tlie State courts and in tiie Federal courts.' Wu sliail, therefore,
spealv of this foiirtli test hereafter as tiie " rijrlit and wron;^ test," and, in tii(!
following sections, the States in wliicii tills test is maintained will Ije given in their
order.
§ 8. Bigrht and Wrong Test — Alabama. — The right and wrong jest is ap-
proved in .Vlaiiama. In a leading case on tlie sulijeet it is sahl: " Wlien the
plea of insanity i.s interposed to protect one from the legal coiisf<iiienci's <jf an
act whicii amounts to a crime, to render tiie defence availal)le, the evidence must
l)e siicli as to convince the minds of the jury that at the time the act was done
theaccused was not conscious tliat in doing the particular act he was committing
!i crime against tiie laws of (Jod and iiis country. If he knew right from wrong,
and knew that he was violating tlie law, lie is tlien guilty, for it is this conscious
knowledge connected with tlie act tliat constitutes tiie crime." '
§ 9. ■ California. — In California tlic test is whether the accused, at the time of
committing tlie act, was conscious that he was doing wrong.^ An instruction,
that if the jury And tliat tlie prisoner was insane at the time of tlie alleged
murder, tliey should declare him not guilty without regard to tlie degree of in-
sanity, is properly refused.*
§ 10.
Delaware. — So in Delaware the test is the ability to comprelicnd the
difference between right and wrong in respect to tlie very act with which he
stands charged.*
' In some of the cases where the fourth
test is adopted, tlie language of the court
would seem to iniidy that tlie third test was
the one intended to be appHed. But it is
plain in the liglit of all tlie American adju-
dications that the third test is not law in a,
single State.
- McAllister v. State, 17 Ala- 434 (1850), cit-
ing Com. V. Kogers, 7 Melc. 500; Clark v.
btate, 12 Ohio, 483 ; State v. Brinyea, 5 ^Ua.
241.
3 People V. McDonnell, 47 Cal. 134 (1873) ;
People f. Coflfman, 24 Cal. 230 (1864) ; People
V. Hoon, 16 Cent. L. J. 57 (1883) ; " ople v.
Hobson, 17 Cal. 424 (1861).
< People V. Best, .39 C. 1. 690 (1870).
s State V. I>anby, 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).
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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 — Ma<ne. — The right and wrong test is adopted in Kansas ■'
§ 13. Massachusetts. — So in Mas.sacliu.setts.'' In Com. v. Heath,'* tried in
Massaeliusetts, in 1858, Francis K. Ileatli and Miriam O. Heath were indicted
for tlie murder of tlieir fatlicr, Joshua Heath, and tried at Lowed, at April term,
18J8, l)efore Justices Dkwkv, Mktc.vlf and Thomas. One question at the trial
was, wlutiier the defendants wi'i'e of sufficient intelligence to be responsible for
a homieide; and upon tliis point and the burden of the proof thereon, the court
gave tlie folIo\viii'.i iiistruetions in the charge then delivered l)y Thomas, J. : If
the jury are satistlcd that a homieide was committed, and under such circum-
stances that, if done l)y a responsil)le agent, by one capable of committing a
crime, it would be murdir, either in the lirst or second degree, the only question
remaining, and the important and vital question of the cause is »' were the
prisoners at tlie bar capable of committing the offence." The law presumes men
and women of ilie age of the prisoners to l)e .sane, to lie responsible agents.
Where, tlierefore, a liomicide is proved to have been committed in such way and
under such circumstances, as when done by a person of sane mind, would con-
I Roberts v. State, 3 Ga. 310 (1847) ; Brink-
ley V. State, 53 Gn. 290 (1S77).
!! StuUstill V. State, 7 Ga. 202 (1849).
3 45 Ga. 67 (187J).
* And see Humphreys v. State, 46 Ga. 190
(lir72); Westmorland v. State, 46 Ga. 225
(1872) ; Choice v. State, 31 Ga. 424 (1860) ;
Kobcrts r. State, 3 Ga. blO (1847).
<^ State V. Mahn, 25 Kas. 182 (1861).
** State V. Lawrence, 67 Mc. 674.
' Com. r. Itogers, 7 Meto. 600 (1844).
• 11 Gray, 303 (1868).
PARTICULAR HKillT AND WR0*"'5 TEST.
233
Michigan, Mimu'sota, I/! isissippi, Missouri.
In
I
stitute iniinlf"-, tlio presuiiiptioii of law, as of coiiiinon sense and sjencral
experience, supplies tliat linli. It presumes men to l)e sane tlil tlic ontrary is
sliown. Ttio presumption of law stands tili it is met and overcome Ijy tlie evi-
dence In the case. The evidence may come, of course, as well from the witnesses
for the fioverninent as the witnesses for the defence; and wlien the evidence is
all In, the jury must l)e satislled, in order to convict the prisoner, not only of the
doing of tlie acts whidi constitute murder, but tliat tliey proceeded from a
responsible agent, one capal)le of committing the offence. This istlie rule to he
applied to a case wliere the defence is idiocy, an original defect and want of
capacity. Whetlier tlie rule is modilled wliere the defence relied upon is insanity,
disease of the nnnd or delusion, it is not necessary now to intiuire." The
prisoners were convicted.
§§U,15.
Mlchigran
• Minnesota — Missisaippl. — And the riglit and wrong
test prevails in Michigan,' and Minnesota. In State v . Shippey ,'' it was said: * His
(tlie prisoner's) suspicion of strangers, apparent melancholy and peculiarity of
de|)ortment generally are not proof of insanity as tliat term is popularly under-
stood. Perhaps by theorists these peculiarities may l)e considered evidences of
insanity. It is, indeed, very dilllcult to dellne tliat invisible line tliat divides
insanity from sanity, 1 'it sucli si)eculation is not Inre necessary, for a party
indicted is not entitled to an accpiittal on the ground of Insanity, if at tlie time of
tlic alleged offence he had capacity suttlcient toenal)le him to distinguish between
riglit and wrong and understood the nature and conseqinnces of his act and had
mental power sulllrient to apply that knowledge to his own case," ant! it is fol-
lowed in Mississippi.'
Missouri. — In Missouri the test adliered to is the abilitv to know the
§ ir...
right from the wrong of the particular act.* In State v. Kotovsky,^ decided in
18S1, IIknuy, J., in delivering the opinion of the court atllrming tlio judgment
below says: " The instri'ction in relation to insanity was in e.xact conformity
with what this court recei.tly announced as the law in Statrw liednueier,'^ and
yet more recently In State ■. Erh;^ and while two of the members of this court
(.Tudge HoitiH and I) do \u^* tl>iiik 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 <ii:ilty." '
§i;
Nebraska — New Jersey. — The same tist is applied in Nebraska'
and New Jers4'v.^
§ is. New York. — The at)ility to distinguish »)etween the rijfht and wrong
of the act is the test rei-oirnized in New York.'
In People v. I'iiie,'' the jirisonor was tri.il in Dutchess County, N. Y. for the
murder of Mrs. Russell. HuKt i.o, .!., charged the jury as follows: —
" Tlie <|Uestion of insanity, upon which this case turns, always involves difficult
and intricate in<|uiries. It is a subject upon which tuuch has been said and
written, by way of theory and specul.ition, and it cannot be denied that the
numerous a<;judications are not alto;rether reconcilal)le. \Vithout detaining
you with tetiinieal terms, it will ^^e sulllcient to say that insanity assuuu'S a
variety of forms and has many names. Amoni; them are: (1) (ieneral insanity;
(2) partial insanity; CH) periodical insanity; (4) moral insanity; (">) 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<I. I'G (1848) ; Clark's Case,
1 ( ity Hall Kec. 176 ( Isl6) ; Walker v. People,
ante; Flanagan r. People, 62 N. Y. 467 (11
Am. Kop. 731) (1873); Fee po«<, p. 875.
••> 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<Mi siiflicieiit to enable him to
distiiifiuish between rifiht and wron^r, as to the particular act he is then (loinjr;
a kiiowledij;e and consciousness that he is (loiii;^ wroiiii, and criiiiiiial will sub-
ject him ti> punislinieiit.' Altlioii^li he may be labiu'iuii uiidtr partial insanity,
if he still understand tlm nature and character of his act aii<l its con.serpieucea;
'if he has a kiiowledire that it was wron;i and criminal, and a mental power to
apply that knowh-d^re to his own case, and to know that if he does the act he
will do wrontj and receive punishment, such partial insanity is not sullicleiit to
exempt him from responsibility for criminal acts.' There .ire lases in which
tlie insanity consist-s in a delusion by which tlie prisoner has a real and firm
Ixlief of the existence of a fact wholly imairinary and nnfonnded. In reijard
to this, the Enjilish courts hold that it is no defence for a criminal that the
prisoner supposes he is redressin;; an injury or >rrievance. 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 <tr unlawful. Keeping in mind this rule, let us look
into the testimony and endeavor to apply it. It arranges itself into two kinds:
(1) Hereditary in.sanity, (2) personal acts of insanity.
"As to hereditary insanity, the evidence is admissible upon the principle of
human nature, by which the properties, temperaments and inlirmities of the
parents are sometimes transmitted to their children, and pass from generation
to generation. It is not iu any case evidence of the highest character. It would
tie obviously unsafe to acfpiit any jierscm on the sole ground that any of his
ancestors were insane. It is a mere circumstance. Hut before any inference
can be drawn from such a source, the fact of the ancestor's insanity must be
clearly estalilislied. It is endeavowd to be shown from the following facts
that the prisoner's father was insane: CI) He appointed a time to die; (2) was
236
THE LKOAL TEST OF INSANITY.
Notes
troubled in miiiil; (3) committed suicide. But do tliese acts necessarily prove
insanity? lie seems to have been a ' lii;;h sjiirited ' man, and possessing strong
passions and reliiiious feelin!j;s. He was unfortunate in liis pecuniary affairs, —
his property about to be sold on execution. May not these facts account for his
conducl? Is every one who becomes possessed witli tlie idea that he is about to
die, insane? Is suicide evidence of insanity? Clearly not, ulone. If you were
now trying the question of Tilly Pine's insanity, would th'j evidence authorize
you to And in its favor? If not, y<»u cannot find any just inference in this case
in favor of the prisoner. Is the daugliter, Mrs. Potter, insane? She seems to
have been a woman of strong religious iv-elings, which perhaps will account for
all her peculiarities. Besides, she is l)ut half sister to the prisoner, and may
have derived her temperament from her inotlier. Both father and dauglitcr
discharged tlie duties incumbent upon them of father and wife. It is not
pretended that a commission of lunacy could have been issued against either
of them. We come now to the evidence of insanity in the family of Dr. Per
La Pine, a cousin of the prisoner. It is showi that Lewis Pine, a brother, was
deranged; the father was partially deranged after a severe loss. As to the
children, it may have come from mother or fa^' er, or originated with them-
selves. The father lived to an advancetl age lud attended to his business
through life. No one can contend that he was a conlirm<'d maniac, or even
subject to i)eriodical insanity. It is for you to say, on the whole, whether any
well-founded inference can be drawn from such evidence of insanity in rela-
tives; especially, when, with one exception, the relations are not in the right
line of descent. As to the evidence of i)ersonal insanity: this defence is pre-
sented under very peculiar and somewhat suspicious circumstances. It is not
pretended that the j)risoner is now insane. If acipiitted, he must be discharged,
and could not be sent to the asylum, as the court uiiderstands the testimony.
The witness speaks of his being insane. Not a sinu:le medical or scientillc
witness gives it as his opinion that he now is or ever was insane. The prisoner
comes into court and says he was insane at the time of conunitting the act.
lias he proved it? It is for you to scrutinize the testimony carefully, and not
permit him to avoid punishment on tiiat ground, unless made out to your full
satisfaction. Generally, a man Is presumed innocent, and tlie great difflewlty is
to .show how the deed was done, and who did it. In tliis case the situation
of the prisoner is otherwise: there is no tUnibt of his being the homicide. The
presumption is that In- was sane; that is the general rule. The presumption is
against his umocence. He must clear himself ijy satisfying you tuat he was
incapable of perceiving the criminality of the act. Eccentricity or peculiarity
of conduct is not sulllcient; thi^y belong more or less to all men. p]ven par-
tial insiinity is not sulllcient. To come to the personal acts from which it is
contended that insanity is to t)e inferred: 1. His hanging himself. This was
extraordinary, l)ut it was done near a dwelling house. He also laughed when
asiied why ho did it. 2. No more is heard of it till 18-13, when he lived at
Pleasant Valley. This, it appears, was about the tiuie or soon after he lived at
Mrs. Degroff's, where Mrs. Russell, tlieu unmarried, lived. Mr. Taylor saw
him crying at times; breaking through the siding; attempted to .shoot himself.
These may be evidence of an aberration of mind, or of disappointment, or a
disposition to terrify others. If he was Insane, aud wished to kill himself, it
TEST IN NEW YOKK.
237
People 0. Plue.
is strange lie iliil not do it. It is possible that the letter given in evidence, In
which he speaks of a marriage agrecnient, may afford a solution; or it may be
explained by reference to intoxication. 3. The occurrence on tlic night he was
removed to the county house with delirium tremens. It is ilitllcult to see how
this establishes insanity. 4. Scene at Brown's, last September. It was of siiorl
duration, and occurred after he had been drinking. 5. A|)i)lication to Isaac
Lawton for a warrant. He had been drinking, and seems to liave had an idea
that Mrs. Russell hud wronged him. Wiiat is here alleged may have been true,
without that degree of insanity wliich excuses. C. Tlie occurrence on board
the towboat was extraordinary, nnli'ss it can be referred to delirium tremens.
There is some other evidence, but this case has been summed up very ably, and
I will not detain you with it. Tliere are two theories l»y which these circum-
stances may bo reconciled: (1) Periodical insanity, which is tiie theory set up
by the prisoner's counsel; (2) a morbid thirst for revenge for a real or fancied
injury, arising from tlie rejection of his addresses by Mrs. Uussell before her
marriage, excited by li<|Uor. It seems to me that this last view will ex|)laln and
reconcile all the testimony except the act of liis boyhood. The letter before
alluded to refers to this suljject. In the llrst place, before the marriage of Mrs.
K., he threatined to kill himself in view of the church; perhaps under a vague
notion that she would learn of it and relent. After her marriage he .seems to
have had an idea tl at he was in some way entitled to a share of her i)roperty,^
probably as a compensation for his Injuries on his former indictment for burning
the barn, or a reparation for refusing to niarry liim. It is hardly necessary to
say that neither of these will excuse him. No fancied or real injury can justify
the act. There is a further view of the case. Suppose It were established that
the prisoner was liable to periodical fits of insanity, will the evidence luTniit
you to acciult? The rule of law you will remember, Is, that In case of peri-
odical insanity, it must be proved that the act was committed during an attack
of the disease.
•' How then stands the testimony as to his situation at the time of committing
the act? On Friday he came to Poughkeepsie and bought the pistol, apparently
sane. He returned to Pleasant Valley in the evening api>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 ili<l he llee? It is
laid d«)wii in llie lK>uk.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 re<iuire the punishment of an insaii" man. If you are satisJled of his insanity,
whatever be the consequences he must be discharged. IJut public justice does
reipiire that if that act was not committed in a state of Insanity which will
excuse, it should be punished. You are not the ministers of mercy and com-
passion, but of justice; your feelings as men must yield to your duty as jurors.
To permit a man legally guilty of such an atrocious offence to goat large, would
bean example of the most dangerous character and tendency, well calculated
to impair public conlidence in the virtue and etliciency of our courts of justice.
«' The cu.-ie, gentlemen is with you ; and I trust your deliberations will be guided
by that wisdom which can nevt'r err."
The jury found the defendant guilty, and he was executed.
In People v. Lake,^ the jirisoner h.iving been convicted of murder, his convic-
tion was reversed on appeal.'^ Being placed on trial a second time be pleaded
present insanity and a jury was euipauelled to try this issue. The presiding
» 2 I'ark. 215(1855).
5 See Lake r. I'eople, 1 Park. 4!>5 (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, an<l that too, ctnnmitted upon his own w ife
and offspring, lie has been once tried and convict d on tliis cliari;e, and a uew
trial granted liim, not ix-cause tiie court Ixlieved him insane, but wliolly upon
the {;round of «'rror arisinuf on tlio admission and rejection of improper testi-
mony. T-lio new trial was set down for tliis time, tlie pulilic prosecutor moved
it on, and tlie prisoner's counsel aliejied his insanity, and tiie court deemed it
proper to try that <iucstion llrst and distinct from his crime. It is for tliis pur-
po.se to determine wlietlier he Is now Insane, that you are impanelled. Vou will
not allow the atrocity of tin; offence, nor tlie suppc ed efficl of your verdict,
either on the prisoner or on the community, to iutlueiicti you in the least, but
unswayed by prejudice and unbiased by feelinir, you will pass upon the (piestion
of his present sanity; If you find that hi' is sane, we shall then proceed to try
him on the Indictment; if, on tlie contrary, you lliid liiiii insane, the humanity of
the law interposes for the protection of his life, until he is restored to reason.
In the meantime he will be kept in close coulluement, and society protected from
his fury.
" Uefore proccodinfj to call your attention to the law as applicable to this ca.se,
I will make a passinii remark on the strant?e objection tliat lias beeu made by
one of the counsel in reference to tlie propriety of the re«|UeNt made by the court
for physicians to examine the prisoner .so as to be able to testify as to his .state
of mind. The court did not do this; I did it, and assuiiie its full responsibility.
.\ud I only allude to the subject on the prisoner's account, lest you inif;ht not,
if you supposed there Avas anything imiiroper In the selection of th'. 50 men,
give to their testimony the weight It would otherwise have. The deforce on the
former trial had been Insanity, respectable physicians had then testilled, 'hat he
was insane, others, that he was not. The alleged insanity continued, and nhj'si-
cians it was said would not make an examination. Ivnowing that the ol.ject of
a trial was to elicit truth, and that could only be obtained l)y knowledge, vnd that
knowledge was acriuired by investigation, that you might have some evidence,
some rational opinions founded upon sntlicieut facts; I made the recuest for
four medical men to make an examination satisfactory to themselves. The four
physicians were my own selection, one of them. Dr. John Cooinr, Sr., had, on
the former trial, given his oi)inion that he was .sane, another. Dr. Varick, had,
on that trial, testilled that in liis opinion, he w.is insane, while the other two,
Doctors Ilughson and Bocker, had never .seen liini, and were consequently un-
committed. I need not tell you, gentlemen, what is the i)rofcssional .standing of
these four men among their brethren In this county or in the community. If the
object of this trial Is, however, to go into the matter blindfold, rather than to
elicit truth, then it is very lmp.''o|)er to have anybody to examine him enough to
form an opinion. It has been said that this looks like an attempt of the court
to have the man found insane. Is It po.ssible that the district attorney will make
sucii an admission that an investigation by competent physicians must lead to a
verdict of insanity?
" You .should not take it as such, and I hope that you will not allow even his
mistakes to prejudice the rights of the people on the one side, nor anything that
240
TIIK I.KtiAL TKST itt' INSAMTV
Notes.
tlio rourt limy do, to affi-ft tin- jjrisoiu-r, Yoiiiin- not tryliititluM-onrtorttiiy of its
oMlrcrs, liiit the saiiily of the prisom-r. Wliciu'vcr any Issiu' is iiimlt! ai;ainstinc*,
I sliall lu- ;;la(l toiiifct it luTf ort'lscwiuTi'. If tin; pnliiii-or anyone! wlio repre-
sents it (iisii'es to set! liny .me liiiiitf witlioiit an opportunity to Ixiiow wiietiier lie
is ill a ]iroper stale of niiiiil to lie tried ur a tit subject of puubhuient, tliey must
not aslv ine to assist at tlie execution.
"To return to the ipiestion to be tried, is llie prisoner now insane? To deter-
iiiiiie tliis it will probably be nniieeessary to ^ive you a dilinitioii of insanity; it
is a eonditionof iiieiital existence wliieli is known and r«'eo;;iii/,ed in the law8 of
all eiviii/.ed States, and v/liieli exempts the person subject to it from ])unisli-
iiieiit. Its symptoms or outward m.inifestatioiis are well known iiy those who
have devoted their lime and attention to its study. Insanity is as various in itH
phases and effects as tlie pirsons in wliom it appears, yet there are four jjteuerul
classes into which, for coiiv«'iiieiic«', it is divided:
"1. Mania, where the hallucination or delusion is general, extending to ull
objects.
"2. Monomnnia, in which the hallncinatinn is conlliied to a single object, a
class of objects, or a limited number of objects.
";?. Dementia, or madness, where the jierson alllicted is renilered incapalile
of reasoning in coiise(|ueuce of functional <Usorder of the brain, not congenital or
lioru with the person.
"4. Idiot ism, total want of the reasoning powers from malformation of the
form of thought, at the time of birth.
" It i.s not pretended that tlie prisoner is an idiot, and has never been of sound
mind; nor do I think it can be claimed that he is absolutely demented, or ren-
dered incap'ble of rea.soning upon all subjects; his lunacy, if it exists at all, is
in the form of a mania or monomania, prolialily the latter.
" Your position in a case of this kind is peculiar. In ordinary trials you are to
hear the testimony of witnesses as to the existence of certain facts, and on them
found a verdict. Here von are to form an o|iinion on the evidence of opinions.
Thisr.siilts from the nature of the subject of iii<|iiiiy, tlie mind, an existence
wliicii is invisible, impenetrable, in'aiigiiiie, and iiiimeasiirable. The minutest
fllanuiit of matter, the air itself, can lie weighed, buttliere are no scales iu which
the mind can he balanced.
'* If the title to land is in dispute the deeds and conveyances, the surveyor's
compass and ciiain can determine the <iuestion. So of almost any action or
prosecution, the facts as detailed by the witnesses will enable a jury to deter-
mine the (luestiou at issue. But here the |)oint in dispute is the existence or
non-existence "* a certain mental state. It is not even the amount, but the
soiinihiess of mind.
" Ordinary i>ersons, 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\vin<j the murder. The only proof we have us to the pulse
shows that it is accelerated or faster than of a person of his ajic in ordinary health,
it is shown that he has been known to hiuj|;h and weep alternately, and without
any apparent cause. That he is and has been, ever since the liomicidc, suspicious
of his friends, and tliat lie refuses to confide in or consult with his counsel. It
is also an evidence, that just before the hondcide, he was seen while in the pub-
lic highway to stop his horse, take him by the head, lead him around in a circle,
then drive a few rods, and repeat the same thing; that he was seen sitting
on the top of tlie bureau in his house, with his feet in the drawer, laughing, cry-
ing, Uilking incoherently, and striking his head against tlie wall. Tliese symp-
toms and actions are all consistent with insanity. I do not say tliat they are
controlling, but should be cjirefully weighed and considered by you in deciding
this que.stiou.
" Every one who has heard the evidence and observed the conduct of the
prisoner during this trial, will agree that this is a case of simulated or real
insanity. Which is it? In determining this, you should take into view his cir-
cumstances in life ; the opportunity he has had for learning the real spnptoms
of insanity. If he were a physician and had committed crime, it would be far
easier for him, know ing the symptoms to imitate them. The only evidence we
have as to his situation is that he has lived in the interior of the country, that
his circumstances are very humble, and that he cannot write even his own name.
The probabilities are, therefore, that he has little if any learning of books, and
consequently if he feigns, does it without knowing the precise symptoms neces-
biiry to accomplish his object.
IG
24*^
TIIK l.h'MAl. TKST OF INSANITY.
Ntilcs.
«' Tliore was a fiict Htatnl by Dr. ITpton, whlcli in my nilii<l wcIkIiciI very Htrongly
in favor of tliu reality of his inatliicss. You vlll rciiiciiilu-r tliat wo yesterday
touiv a recess of tlie court to allow tliejiliysieiaMs sulipieuai'd a;!aiiisttlic prisoner
to examine him. This examination was conducted l>y 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 <m all tiie
cvi«lencc that has been procured, to llnd a verdict. In condutf ton conclusion,
you will i'emend)er tliat every man Ispr'sunied sane, and rciponsilile for his
acts, until liie ctmtrary is proved, and tlierefore that tiie alllrmative of the issue
is with the prlsoniT. If the evidence .satislies you that he Is Insane, so tliat lie
cannot make a rational defence to the ludi<tmenl. > 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 <lid cotistitulo uieiital alienation, and
said that if at tlie time of tlie act the person was under a delusion, and did not know
ri?:ht from wron;;, or lliat the act was an offence or was wrouir, he was insane
and was not responsible for the act; l)ut that a person w.is not Insane who knew
ri;;lit from wrong, aud that the act he was committiiiy; was a violation of law and
wrong in itself. These positions were laid down in an abstract form. Tlie judge
might have said that if the prisoner, wlien ho killed the decea.sed, was in such a
state of mind as to know that the deed was unlawful and morally wrong, he was
responsible, and that otherwise he was not. Tliis would perhaps have been more
precise and discriminating; butastlic jury was only concerned with the prisoner's
condition when he committed tlie act, wliicii was under investigation. It was im-
possible that the instruction sliould have beeu misunderstood. The prisouer's
1 5 Park. 621 (1864).
5 Willis r. People, .Ti N. Y. 715 (1865).
244
THE LEGAL TEST OF INSANITY.
Notos.
counsel must have boon of tliat opinion, for tiicy did not require tiiat it sliould
be pointed more distinctl.v to tlie i^illin}; of tlie deceased. Tiie general correct-
ness of tlie position laid down cannot l)c qu- stioned. It is in substance and in
tlie lansiuage usually iulupted, and wliicii is sanctioned by tlie authorities."
In People v. Montgomeri/,^ the prisoiur was indicted for tlie murder of his
wife in Rocliester, N. Y., November V.',, 1870. On tlie trial the killing was con-
ceded. Tlie defence was the prisoner's insitnUy at the lime the crime was com-
mitted. He was u young man of twenty-two years of age; he had been married
two years; liis wife was a woman of bad character. She had left iiim a short
time l)efore he killed her, and liad gone to live in a house of ill-fame. She had a
child nine montlis old; tliis child lie kept, and took care of himself during the
nights ; it was taken care of at his fatlier's during the day. The care of the cliild
deprived him of sleep, and this contributed somewhat to produce the condition
of body and mind in wliicli he was sworn to be for several days prior to the kill-
ing. During Iiis infancy he had been subject to epileptic lits, and he had had them
on severil occasions subsequently. He liad a disease of tlie i,A'iin also. The effect
of both was to bring on dementia, which had the effect of enfeebling tlie mind.
His trouble with his wife excited and annoyed him very mucli. He loved her,
notwithstanding he knew she was having intercourse with other meu, and he
could not bear parting from her, and was willing to take her back and live witli
her, if slie would return to him and conduct herself properly. This slie had
refused to do. Tlie afternoon before the killing, his wife's uncle called on him,
and proposed to liim t(j go and see liis wife and try and induce her to return and
live witli liim. They went, and after some negotiation slie returned with them to
the prisoner's house, taking with lier her child; and she and the prisoner remained
together throughout the night. In the morning he got up before she awoke; he
found an axe in the room, took it in his hand, raised it and held it some five
minutes; and (as he afterwards said) tried not to strike her, but his temper got
the better of him, or an impulse to kill her, which he could not resist impelled
liim. He struck and killed her; or, as he told one witness, cut her head off .
On repeated occasions withi:. the we>,'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<iuently
committe<l l)y persons who are not mentally capable of distinsjnishins; between
what is riiiht and what is wroujr, and that such persons, both by the laws of God
and man, should not be held responsible for their acts, while in that condition.
In applyiuii this standard of responsibility they brinj; to this case all the learning?
and experience they |)ossess. Tln-y nnist not decline or even hesitate to decide
because they may tiud jtuilty and puinsli those who are innocent; but havint:
done all that lies in tlu-ir power to arrive at the truth, they must punish or
acquit, as in view of all the considerations that are presented to their nunds
they shall deem to be ri:iht. They may be mistaken, but honesty of pur|)Ose and
of effort to arriv at the truth must furiush the excuse for the error, if one is
committed. A man may be insane, and yet be capable of distinjjuishin^ between
rii^ht and wroni;. It is only when the insanity nas taken possession of the whole
mind so as to obliterate altoj^ether the capacity to make this distinction that he
becomes irresponsible.
" In Freeman v. People,* it was held that when insanity is relied on as a defence
for criuio the question for the jury is, whether at the time of committiui; the act
the accused was laixwinu; under such mental disease as not to know the nature
and quality of the act he was doiiiix, or that it was wronu;. In Willis v. People,-
it was hehl that the projier instruction to llie jury in a case of honncide when
insanity was relied on as a defence was, that if the prisoner when ho killed the
deceased was in such a state of mind as to know that the deed was unlawful
and morally wronu;, he w:is responsible; and that otherwise he was not. In this
case the decision of the Supreme Court in the case of Freeman was approved.
Lord M.vNsi'iin.n, in the case of Bellinjiham, l.dd down the rule, by which the
<|(iestion of responsibility or irresitonsibility of the accused was to bodetermlned
as follows: In ,)rder to support the defence of insanity it ou^ht to bo proved by
the most'distiuet aiul nutiuestionablo evidence, that the prisoner was incapable
of judiiina; between riatht and wronij; that, in fact, it must bo proved beyond all
doubt, that at the time he committed the act, that he did not consider that mur-
der was a crime aij;ainst the laws of God and nature. Lonl r^NimuKST in Rex
V. Offord inquired, ' Did the prisoner know that In dolna; the act hj offended
against the laws of God and man? '
> 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<l an-
other man to stay in, and in tlie midst of tlie company which he had selected, he
asks them to tell him of what he has lieen accused. They say he has been accused
of this murder and of robl)ing school-houses, and after liearing the accusations,
he proceeds to make a confession, whicli confession admits tiie killing, tlie burial
and secretion of the body, and ends by conducting tlie people to the spot wliere
the deceased was interred, and an excavation showed tlie same in all its horrid
details. There can be no doubt but that the prisoner did tiiis deed. Indeed, his
counsel in opening and closing have frankly conceded that he did the act. 80
that in regard to the commission of the homicide, tlien- is no dis|)ute. Her-
man Holcher came to a violent and untimely death at the hands of the pris-
oner, and may I uotfurther say, that if the prisoner was capaiile of reasoning, if
he was capable of reflection, and of understanding the act, that the killing
was with the design which tlie statute marking the crime of murder in the lirst
ikgree, emphasizes? But it is .said in the prisoner's belialf, and this is an im-
portant and solemn question you are to decide, though he did do this act, lie is
not responsil)le for its commission ; that he is insane ; that, though the hand
wielded the hatchet that struck tliose terrible and killing blows, the soul, tlie
intellect, the mind of the man, did not, by reason of impaired intellect, do the
act and impel the hand. If this lie so, it is a defence. Tlie statute has declartcl
that no insane person can be punished for a criminal act; he is not in tlie eye of
law responsible, either before this tribunal, nor before the greater and higher
tribunal to which we must, in tlie end, render our account.
♦' But what is insanity? What must be the mental condition of the party who
Is to be excused on account of that mental condition? How much intellect,
250
TIIK LE(!AL TE!ST OF INSANITY
Notes.
understanding, judgment and coniprehouKion must hu have to make him amon-
abiu to the law? Tiiis, grntlemon, is a (iiitstlon for tlie court, and as tlie court
lays down tluit law to you, you will bo guided and governed l)y it in your
dcliljorations. Questions of fact l)eiong to you; ([uestions of law to tlie court.
Trcucli not upon tiie prerogative of the court, and tlie court will be careful to
leave to you tiiiit wliicli tlie iiiw nial<es it your duty to decide. Wliat, tlien, I
repeat, must be the mental con«lition of the person wlu» has done tlie act,
otherwise unlawful, wliieii will excuse iiim for the commission of such act?
The term ' insanity '^ is a somewliat vague one. Tlierc are different degrees
of mental power in a iu-althy jjerson. There are various degrees of capacity
among persons wliose intellect may l)e slightly imi)aired. In regard to tlie civil
affairs of life, tliat act is a good and lawful one which is done l)y a person vvlio
understands the act. The law can make ikj difference between tlie talented and
those wlio are not, in regard to the execution of a deed or will, so long as the
person of the lesser intellect has enough capacity to understand and compre-
hend the act wiiicli lie does; and so in regard to crime. Tlie person who com-
prehends crime fn all its monstrosHy is liable. The person whose intellect is
less than that, so long as he has sutlicieiit comprehension to know tliat the act
is wrong and is forliidilen, and will be punished l)y tlie law, is < pially responsible ;
no more so, and no less so. The law, gentlemen, does not lecogni/e insanity
as a defence so loug as the jierson iinderstauds and comprehends the act. That
the person pretends he is impelled by an irresistible and overwhelming impulse
to commit the act, will not make a defence. It will not do for a person to say:
'I was tempted by crime and was overcome by temptation.' If lie knows tlie
act is wrong and is forbidden, he must resist tlie temptation ; and if he commits
the act, he does it at Ids peril. Neither will it do to excuse the commission
of crime because tlie person believes in spirits. Belief in spirits m ly be <vi-
dence for a jury to found its judgment upon in regard to the undermtandiiig and
comprehension of the party accused of the act and crime. But belief of spirits
in itself, — that the party sees or hears spirits, that spirits whisper to hira and
bid him to do this act, — that of itself is no defence, provided the judgment and
reason wliicli God gave to him and spared to liim declare to his consciousuess
tliat the act was wrong, and that the laws of God and man forl)id it. This,
gentlemen, is no new doctrine; it is as old as the country from which we have
borrowed the most of our learning and our law. I refer i.'ov ;» tlwf Jaw of
England. And that you ma/ see what the law of that couht" "y.,,n that
question, let me call j'our attention to some extracts from that • nAs. i have
carefully culled: —
" ' To justify the acquittal of a person indicted for murder oa ! ground of
insanity, the jury must be satislled tiiat he was incapable of judging betweci
riglit and wrong, and that at the time of committing the act he did not consider
that it was an offence against tlie laws of God and nature,' This opinion was
given by Lord Lvxuuiust, in the case of King v. Offnrd. Anotlier judge thus
says: 'When, upon a trial for murder, the plea of insanity is set up, tlie ques-
tion for the jury is: ' Did the prisoner do tlie act under a delusion, believing it
to be other than it was? ' If he knew wliat he was doing, and that it was likely
to cause death, and was contrary to the laws of God and man, and that the law
directed that persons who did such acts shouhl be puuislied, he is guilty of
TEST IN NEW Y(JICK.
2:»i
People V. Wultz, coutiniied.
murder.' This was the opinion of Mautin, J., in tlu? ciise of Qneen v.
Tetonli'y. And a^ain: 'Tiio cinttiinstance of u person liavin<; acted under an
irrisisUhlo iidlnence to tlie conuidssion of lionneide, is no defence if, at tlie time
he connnitted it, lie knew he was doing wliat was wron;;." Tins is tlie opinion
of BuAMWKLL., H, in Queen v. Ilaijnc.s.^ Tlie same doctrine has l)een enunciated in
the various JStates of tliis Union : ♦ In a trial for murder, a charge * tliat the true
test of insanity is wiietiier the accused, at the time of the commission of tlie
crime, was conscious of doing wliat he ongiit not to do,' is proper.' Tlii-i was
held In the case of tlie People v. llobxon.' 'The test of .sncli insanity in crim-
inal cases as will excuse the comini.ssion of crime, is wlietlier tlie accused, at
the commission thereof, was conscious that he was doing what lie onglit not
to do." 'It is not every kind or degree of insanity whicli exempts from
punislimcnt. If the accused understood the nature of the act, if he knew it
was wrong and it deserved punishment, lie is responsible.' This is the ease
of United States v, McGlue.^ 'If a man lias cajiacily and reason sullieieiit to
enable him to distinguisli between right and wrong as to a iiartienlar ad,
for tlie commission of whicli he is on trial, if he has knowledge; and con-
sciousness that the act he I.s doing is wrong and will deserve punishment, he
is, in the eye of the law, of .sound mind and memory, and tlu'refore eriininally
responsible for the act.' Ami, gei lemen, tiie .same doctrine has been enun-
ciated In a recent case in tlie Court of Appeals of this State, wliieli is onr
highest court, and wlio.se decisions must be our guide in tlie deterniiiiatioii
of this one. The ca.se is reported in 52 N. Y.'* The jirisoner was convicted, in
tlie General Sessions of New York City, of the crime of murder In tlie second
degree, he having been indicted for murder in tlie tlrst degree for killing his
wife. Tlie counsel for the pri.soner made these points: ' No man can commit a
crime, altiiougli he has understanding, if he has no will. TIk; right and wrong
test as to the contemplated act Is not favored. The power of choosing right from
wrong is as essential to legal responsibility as the mere capacity of distinguishing
right from wrong.' That is to say, tlie prisoner's counsel said he must have
the power to choose ; that Is to determine whether he would or would not do;
whether he should do the act, or whetlii'r lie should not do it ; and this w.is just
as important In determining whether lie was in.sane or not, as his power to
distinguish between the right and tlie wrong of the act. In other words, the
counsel for the prisoiu-r claimed that though the prisoner might have reason
enough to tell him tliat the act was wrong, — that the laws of the land and God
forbid It, — yet If he had no will to resist the influence wliich bade him do the
act, then he was crazy and insane, and not criminally responsible. It presents,
to a certain extent, one of the very propositions whicli the counsel for the pris-
oner has rai.sed Iiere. It presents tlie identi('al (piestion wliich is raised by the
confession of the prisoner In the case. Now, what did the Court of Appeals
say? They refer, in the tlrst place, to the case of Willis v. People. That was a
case in which I was concerned, and wliere the rule In tliis State was pretty
thoroughly settled. The court, through Andukws, J., says: ♦ That the test of
1 F. & K. 666.
» 17 Cal. — . 424.
* State V. .Spencer, 1 N. J. (L) 424.
* Hurt. (". Vt. !.
* Flanagan v. People.
252
THE LEGAL TEST OF IXSAXITV.
Notes.
rcsponsil)ility for criminal acts, wlicre unsomulness of mind is Interposed as ,i
(k'ft'iici", Is the cai)acity o* the defendant to «listinjjiiish between right and
wrong at the time of and with respect to the act which is the subject of the
in<|uiry.' Of course he must be able intelligently to distinguish between tlif
riglit and the wrong; he must have a comprehension that the act is forl)iilden; it
must be present in his mind at the time he resolves to do it. But if tliat intel-
ligence and comprehension be present, — if there is a voice within him saying,
' Do not this act ' anil if he understands that if he does it, it is wrong and thf
law will punisli him, — then if he does it he is r<.'sponslble, even though he may
claim that some mysterious Influence or spirit urges him on and destroys his
power to resist. I further read : ' We are asked in this case to introduce a new
element into the rule of criminal responsibility in cases of alleged Insanity,
and to hold that the power of choosing right from wrong is as essential to legal
responsibility as the capacity of distinguishing between them, and that the
absence of the former is consistent witli the presence of the latter. The argu-
ment proceeds upon the theory that there is a form of insanity in which facul-
ties are so disordered and deranged tliat a man, though he perceives the moral
(piality of Ids acts, is unable to control them, and is urged by some mysterious
pressure to the commission of acts, the consefpiences of which he anticipates
but cannot avoid. Whatever medical or scientiflc authority there may l)e for
;his view, it has not ))een accepted by courts of law. The vagueness and uncer-
tainty of the inquiry which would be opened, and the manifest danger of intro-
ducing the limitation claimed into the rule of responsibility in cases of crime
may well cause courts to pause before assenting to it. Intlulgence in evil pas-
sion:' weakens the restraining power of tlie will and conscience, and the rule
suggested would be the cover for the conmiission of crime and justitlcation.
The doctrine that a criminal act may be excused upon the notion of an irresisti-
ble impulse to commit it, whore the offender has the ability to discover his legal
and moral duty in I'espect to it, has no i)lace in the law. Rolfe, B. in lieg. v.
Allnnt, where on th ; trial of an indictment for poisoning, tiie defendant was
alleged to have actcc' under some moral influence wlucii he could not resist,
said: 'Every crime was conunitted under an influence of such a description,
and the object of t'le law was to compel people to control their influences.'
" Tliat, gentlemen, is the law of the case. It is the law which must govern you
in j'our deliberations. You are not to ask yourselves the vague question whether
tlie prisoner was or was not insane, without having any clear or defliute com-
prehension of what insanity is, but you are to ask yourselves the question: Did
tlie prisoner understand tliis act when he raised tliat hatchet and smote Holcher
these fatal blows? Did he understand that the laws of God and man forbade
him; and did he know tliat these laws would hold him responsible for it when
discovered and brouglit before a tribunal of justice? If he did, he is guilty.
No matter though he says, and his counsel for him argues, that an irresistible
mysterious power urged him on to tlie commission. This is no defence. The
law says it is the duty of the person to resist these influences, and to successfully
resist them. The safety of society, the protection of life, require that we shouUI
hold persons accountable for crime who know that the act which tliey do is a
criminal one."
The prisoner ioa» convicted.
i
/.
^
TEST IS NEW YOUK.
253
Moett V, People.
rposcd as ,1
right ami
)ject of the
• 'tween the
rbidden; It
that Intel -
ilin saying,
ng and the
iigh he may
lestroys his
duce a new
d insanity,
ial to legal
id that the
The argu-
lueh facul-
the moral
mysterious
anticipates
nay be for
luid uncer-
rof Intro-
's of crime
evil pas-
d the rule
stiflcation.
1 Irresisti-
r his legal
n Iteg. v.
idant was
lot resist,
scription,
noes.'
;overn you
n whether
nite corn-
ion: Did
e Holcher
,n forbade
)r it when
is guilty,
•resistible
ice. The
ccessfully
ve should
cy do is a
nvicted.
In Moett V. People,^ the prisoner was indicted for murder. The following judg-
ment was delivered in *.lie ("ourt of Appeals.
E.vKL, J. " (Jne of the defences presented at the trial was that the prisoner was In
such a state of mind at tlie time of the killing, that he was not responsible for lii.-, act.
In reference to this defence, the judge in his charge, among otlier things, said : • If
lu' was unconscious ; if he did not know what ' e was doing upon that 'iccasion ; if his
mind, because of the terrible scenes which he had passed tlirougli '.iriuL* those
long and weary days preceding tliis tragedy, had so impaired ids intellect, had so
diseased his brain when tlie occasion came when tliesu sliois were tired that
carried this woman to lier grave, then, of course he cannot be held resp<)nsil)le
for the conse«iuences of this act. But, if he knew, if lie had the powfr at the
lime lie llred these shots of discerning riglit from wrong, if he understood the
nature and character of his act, tlien he must be responsible so far as this
defence is concerned.' The learned judge then, tliat there might l)e no mistake
read to the jury portions of tlie opinion of Andkicws, J,, in tlie case of
FlaiKiyan v. Pc _)le,- with such comments thereon as must have made plain
to the jury the rule of law there laid down. He also cliarged the jury ujion tlie
ivijuest of the prisoner's counsel, as follows: 'The law does not re([uire tlie
insanity or mental aberration which absolves from crime should exist for any
(lellnite period, and only that It existed at the moment when the act occurrtv'.
with which the prisoner stands charged.' If the insanity or mental aberration
wiiieh aljsolves from crime operated at the moment tliat the act with which the
l)risoner is charged was committed, that Is sufficient in law to absolve the pris-
oner from guilt, and he cannot be convicted of the offence charged in the iiidiet-
nient or any other offence.' The People must satisfy tlie jury beyond all
reasonable doubt that tlie prisoner, if he committed the act alleged in the iiidiet-
nuiit, understood the act at the moment It was committed, and that If the jury
tlnd that he did not understand It at the iiiomeiit he eoinmitted it; If lie did
commit It, he cannot be found guilty of tlie crime cliargeil in tlie Indietineiit or
any other crime, and it is the duty of tlie jury to acipiit him. ' Tiiat the People
must satisfy tlie jury beyo.id all reasonable doulit that at the moment the act
alleged in the Indictinent was committed liy tlie pri.soner If he did commit it, lie
had reason, perception and understanding sufficient to enable him to discern the
viirlit from the wrong, and tiiat if he had not, it is the duty of the jury to ac(iuit
him.' ' That It Is the duty of the People to satisfy the jury beyond all reasonable
doubt that at the moment the act alleged in the indictment was committed by the
prisoner, if he did commit It, he had reason, perception, and understanding,
sufficient to enal)le him to discern right from wrong with respect to that par-
ticular act, and If he did not, the jury must acfpilt.' ' That the People must
s:itisfy the jury beyond all reasonable doubt tliat at the moment the act alleged
in the indictment was committed, the prisoner, if he did commit It, had sufficient
reason and will under all the circumstances as tliey may be found to have been
proved, to form and have a criminal intent and purpose, and that If he had not
the jury must ac(iuit.' The counsel for the prisoner also re(|uested the court to
cliarge as follows: 'That the People must satisfy the jury beyond all reasou-
> 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 cominitte<l tlie act, she knew what she was doing — to
wit: that she was shooting the deceased; and knew that in shooting him she was
doing ti wrongful act. If those two conditions of things existed, tlien tlie asser-
tion of insanity fails. Although she may have l)een lalioriiig niiih'r the inteiisest
excitement, and although the i'lipulse to do tlie act because of the injury slie al-
leges she liud received was of sudi a character that she felt herself jiistitied in
avenging lier wrongs, yet the defence of insanity would altogetlier fail. The
iiioinent it is conceded, as I have already said, tliata man can assert insanity as an
excuse for his otlu-rwise criminal act, l)ecause»liis passions were so far aroused
that it was iinpossilile for him to stay ills liaiid, there is no protection for society.
Any niiin wlio wishes to kill his enemy or any one wlioin lie believes or fancies
lias injured liim, has only to bring liimself up to that condition of intense emo-
tion that he can no longer restrain liimself, then do the killing, and then assert
ill a court of justice tliat lie was insane because liis passion had pas.sed all bounds
(if restraint. It is easy for the mind least familiar with law to .see that wiienever
tliat condition of things is iield to be legal insanity tliere can be no such tiling as
protection of life under the law, for tlie law itself will alirogatu all reasonable
grounds for its own enforcement. "
§ 1!). North Carolina.— h\ State V. Hayicood,^ the trial judge (tlie indict-
ment being for murder, the ilefence insanity), instructeii tlie jury tiius: " If the
prisoner, at tlie time he committed the homicide, was in a state to compreliend his
relations to otiier persons, the nature of the act and its criminal character; or, in
other words, if he was cimscious of doing wrong at tlie time he committed the
homicide, lie is responsible. But if, on the contrary, the prisoner was under
the visitation of God, and could not distinguish lietween good and evil, and did
not know wliat he did, lie is not guilt} of any offence again.st tlie law, for guilt
arises from the mind and wicked will." On the appeal this charge was approved
as being clear, concise, and accurate and was uommeuded as a model for other
trial judges in the State to follow.
§ 20. Ohio. —In State v. Gardiner,^ Wright, J., held that the same degree of
insanity whicli excuses a man from liis contracts will exonerate him from ac-
countability for crime. In the subsequent case of Loeffner v. State,'^ tiic Supreme
' PhlU. (N.r.) 376 (1867).
17
" Wright, 3!>9 (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
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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 <T;rade of madness
sometimes mistake their friends for strangers, and common visitors for their rela-
tives anil friends. They now and then fancy they sec good and bad spirits standing
by their bedsides, waiting to carry them to a place of torment or happiness,
according as their moral dispositions and habits in health have prepared them
for these different abodes of wicked or pious souls. Not only the eyes, but the
ears likewise, are the vehicles of false perceptions, and to these we are to ascribe
thesolilo(iuies we sometimes observe in mad people. They fancy they are spo-
ken to, and their conversation freciuently consists of replies only to certain
questions they suppose to be put to tliem. The latter occurs more or less iu
delirium, but we occasionally see them in the highest grade of intellectual mad-
ness. When these errors in perception take place, madness has been cUed Idea!
by Dr. Arnold, but more happily, diseased perception by Dr. Crelgh^^vyu. It Is iu
this state of madness only that it is proper to say persons are ' out of their
TEST IX PKNN SYLVAN! A.
263
JJnnvn v. Commonwealth; Commonwealth i'. Winnemoro.
senses,' for the mhul no longer perceives the images of external ol)jccts from
tliom.' 1 'lo not say that this is the only rule that can be observed in (loeiding
tlic question of insanity, but I give it to yon as one from which it is safe to draw
conclusions upon this subject. It is manifest that some such state of derange-
ment in the intellect must exist to justify a jury in rendering :i verdict of not
guilty on the ground of insanity, when the prisoner is charged with so heinous a
crime as that of murder.
" Other traits in the character and conduct might be mentioned which often lead
the mind to a similar conclusion, but this is deemed sullicient to direct your in-
quiries after truth. You will bear in mind that the burthen of proof lies upon those
who made the allegation that tlie prisoner was insane when ho perpetrated the
offence. All the legal presumptions are against him, and they have undertaken
to rebut these presumptions. Have they done it? This point the jury must de-
cide. Should you be convinced that the prisoner was of sound mind when lu?
committed the offence, then it is the province of the jury to determine whether
the crime is that of m.urder in the lirst or second degree."
The jury found the prisoner guilty of murder in the second degree, and the
court sentenced him t^, ...elve years' conOuementin the Eastern Penitentiary.
In the case of Brown v. Commonwealth,^ decided in Pennsylvania in 1875, the
defence assigned error to a charge of the trial judge in these words: " If he (the
prisoner) had power of mind enough to be conscious of lohnt he was doing at
the time, then he was responsible to the law for the act." In the Su-
premo Court this instructlou was held correct. " It is contended," said
Agvew, C. J., " this language was incorrect, and was liable to mislead the jury
because the prisoner might be conscious of what act he was doing, and yet, in
consequence of mental disability or disease, be incapable of refraining from its
commission. But the charge has a plain English meaning referring to the nature
of the act, and when taken in connection with other parts of the charge this
portion is not susceptible of misconstruction. All the judge said referred plainly,
not to the mere act, but to the prisoner's consciousness of what he did as crime.
The phrase, ' conscious of what he was doing,' is idiomatic and is understood
to mean the real nature and true character of the act as a crime, and not to the
mere act itself. As used by the judge in connection with what else he said, it
was not contradictory or misleading. A memorable instance of this idiomatic
use of the word what is found in the language of our Savior on the cross, when
he said, ' Fatlier, forgive them; /t>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 th<!ir study; but we are in a court of law, not a school of science, and
our deliberations must be guided and governed by legal adjudications, aud not
by theories of professors, however learned.
«'It has been suggested by the learned counsel for the defence that there is no
accountability in the absence of power. Properly understood and carefully ap-
plied, this statement may be accepted as correct. From it and the various
decisions upon this question, we think we may safely lay down the foUowiag
propositions as embracing the marrow of the law upon the subject: —
" I. If a man has no capacity to discern good from evil, nor ability to understand
that the act he is about to perform will render him liable to human or Divine
law, he is clearly not accountable.
"II. If he possesses the capacity to discern good from evil, but is laboring under
a delusion or hallucination, which, if it was real, would excuse his act, he is
still irresponsible to the law. This is illustrated by Lord Erskine's supposition
that the defendant was so far operated upon by an insane delusion as to imagine
that the person he struck was a brute animal or a potter's vessel. Other writers
refer, under this head, to persons who imagine that they are attacked, and this
illustration is used by the English judges in their answer to questions pro-
pounded to them by the House of Lords in June, 1843. Ills delusion may arise
from disease, or it may arise from iiccident operating upon a perfectly healthy
mind. A man may be driven to an act of violence by the delusion, amounting to
insanity, tliat he is pursued or attacked. On the other hand, he may have full
conti'ol of his reason, but may be deluded by appearances. Mr. Levet's case ' is
an illustration of this. He killed the friend of a servant who had concealed her-
>elf 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<tse,^ Brother Lidlow wisely said: ' If by moral insanity is to
bo understood only a disordered or perverted state of the affections or moral
powers, it cannot be too soon discarded as affording any shield from punishment
for crime. If it can be truly said that one who indulges in violent emotions,
such as remorse, anger, shame, grief, and the like, is alllicted with homicidal
insanity, it will be dilllcult — yes, impossible, to say where sanity ends and in-
sanity begins; for by way of illustration, the man who is lashed into fury by a
lit of anger, is, in one sense, insane.'
*' Without further reference to authorities or principles, let us see what is the
evidence of insanity in this particular case: —
" 1st. It is said that the defendant has inherited this calamity.
•'Ills mother says ' that tliere has been insanity in the family of defendant's
father; that a death occurred from that.'
" Our Supreme Courts have decided that evidence of this character is clearly
admissible ; and if you tlnd from the evidence that insanity is hereditary in de-
fendant's family, this circumstance should have its due weight.
"2d. It is alleged that he received in early life a fracture of the skull, arising
from a fall, and that he has been afflicted with epileptic fits from his youth to
within the past week.
*' Upon thks point you have heard the testimony of his mother, his sister, his
brother, Mrs. Patience Wilson, and Ofticers Coulson, Ashton, Taylor, and Thomas.
Dr. Weir Mitchell, Dr. Edward A. Smith, Dr. II. T. Childs, and Dr. Pancoast,
have all spoken to you of the effects of epilepsy upon the mind. They all agree
that it may affect the brain, and thir.k that it is one of the causes of insanity.
" The Commonwealth denies that the defendant has shown that he has been
recently afflicted with epilepsy, and they also contend that the existence of the
disease does not of itself and necessarily establish the presence of insanity.
" If you find from the evidence that the defendant is an epileptic, you should
remember, in weighing the other testimony, that this disease produces great
nervous susceptibility, and a tendency to mental alienation. Persons commit-
ting a violation of law while in this condition are entitled to the full benefit of all
the considerations which affect the responsibility of the agent. As this disease
arises from different physical causes, it exerts different influences on the mind
\
an
iia
en
in
pe
iin
I 3 Fbila. 109.
TEST IN PIONNSYLVANIA.
207
C'oinraouwealth v. Wlnneinorc — Continued.
and body. Ca3sar, Napoleon, and Mohammed were affected by it in a subordi-
nate degree. Tlie doctrine, as laid down by eminent authors, is : • That, in f;en-
eral epilepsy, the usual presumption of responsibility applies to acts connnitted
In tlie intervals of the attaciis.' ' But it is added, * that it is unjust to throw up(jn
persons thus affected all the responsibility of actions whicli tliey may commit
immediately before or after an attack, for authors are agreed tiiat wlietlu-r these
attaclis occur frequently or rarely, the mind never fully recovers all its power.' »
I'pon this point you sliouid bear in mind that partial insanity is only an excuse
wiien it has had some agency in destroying tlie capacity to distinguish between
riglit and wrong, in producing a delusion, or in im|)airing the power of self-
control.
" It is said tliathe has made frequent attempts to commit suicide. His mother
says tliat on his return from tiie army he took laudanum twice and suffered two
or tliree days. His sister says he several times attempted his life, and that once
ill her presence ho was under the influence of laudanum two or three days. .She
lulds that she 'only knows of tlie other efforts from wliat otliers have said.
His brother also testifies to the same effect, and his letter to his friends, dated
.•\pril 22, 18G7, is relied upon as showing a disposition to commit suicide. You
have heard the explanations of this letter from Chief Lamon, as given to liim by
tlie defendant.
" IV. It is said that his manner has been foolish and tliat of a demented person.
His mother, his sister, his brothers, Mrs. Anna J. Wolf, Mrs. Mench, Mrs. Mc-
Cormick, Mr. Taylor, Dr. Robinson, Thomas Beach, John P. Lanning and Mary
Jane Marks, speak of his motions, tlie expression of his eyes, iiis general
beiiavior, his melancholy, his sleeplessness, his declarations that he conversed
witli spirits, and other matters, Avliich are doubtless well remembered by you.
Finiey Barber says the defendant was not considered bright, and Ella J. Beach
says that in March last, when tlie defendant returned from Montana, he did not
appear as when she had seen him before.
"Lastly, it is said by the defendant that a partial test of insanity is the presence
of oxalate of lime in the urine. Upon tliis being testitted to by Dr. Seth Pan-
coast, we allowed that expert to state to you the results of an examination
made by him with the view of determining this question upon tliat test. This
Is the first time, so far as we liave been able to discover, tliat such a test has
ever been applied in such a case. But courts and juries, unskilled in ques-
tions of science, must necessarily receive instruction from tliose learned in the
suiiject, which may be the particular subject of inquiry. We therefore felt
ourselves constrained by the decisions to admit his testimony, and you have
accordingly heard from Dr. Seth Pancoast his opinion that the defendant is
insane, and the evidences of his insanity are the appearance of his eyes, the
color of his skin, and the presence in his urine of numerous deposits of oxalate
of lime. Dr. Pancoast, however, admitted tliat this may exist to a limited
extent without insanity; and Dr. Wm. Pepper, a skilful medical expert, tells yon
tliat this oxalate of lime is frequently found in healtliy urine after it has stood a
sliort time ; that it occurs in dyspepsia, is found after eating onions, rhubarb,
etc., and that its existence in no wav indicates a disease of the brain.
' Wharton & Ptille, Md. Juris. 8ect. 144.
2 Ibid.
208
THE LEOAL TEST OF INSANITY.
Nctti'.s.
"In rebuttal of the testimony of the defendant's witnesses, the Commonwealth
relies upon the evidence of Mrs. Sarah Anthony, Robert Anthony, Chief Lamon,
and Olllcer James McCullin, Jr. Mr. and Mrs. Anthony saw and conversed with
the defendant the ni}j;ht before this occurrence ; Chief Lanion and Olllcer Jame.s
McCuUen, Jr., conversed with him a few hours after Ills arrest. You doubtles>
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<!5, punishment in the State prison not less than one, and not more than four
years. Every other killing of a human being by tlie act, procurement or culpa-
ble negligence of another, when not justifiable, nor excusable, nor murder, nor
manslaughter of a higher degree, is manslaughter In the fourth degree. Tiie
punishment of manslaugiiter in the fourth degree is imprisonment in the State
272
THE LEGAL TEST OF INSANITY.
Notes.
prison for not exceeding one year or in tlie county jiiil not exceeding one year;
or l)y line not exceeding one tliousand dollars, or l)y both such line and imprison-
ment. The feature winch particularly distinguishes manslaughter from murder,
is tli(i absence of a design to effect death. Applying these detlnitions to this
particular case; if you believe Cole killed Iliscock, without legal justiticatiou or
excuse, in the possession of his faculties and with a mind capable of comprehend-
ing the quality of the act; and with a premeditated design to effect his death,
he is guilty of murder in the first or second degree according to the enormity of
the act and tlie degree of premeditation with which it was perpetrated. If done
without a design to effect death, but in tlio heat of passion and witli a dangerous
weapon, then he is guilty of manslaughter in the third degree. If done in some
other way, but without a design to effect death, aud iu the heat of passiou; tli'.'n
he is guilty of manslaughter in the fourth degree,
"But to constitute guilt and criminality in either of tliese various Avays, it is
necessary that the person should be capable of distinguisliing between riglit and
wrong in the particular case, and as applied to the features of the particular
transaction; that he should be in the possession of his faculties; in the exercise
of his reason ; not necessarily with faculties in the same vigor or force, or under
the same equanimity of mind as when perfectly cool, or in perfect health, but
with faculties from which reason is not permanently or temporarily dethron('(l.
" All men have not the same mental powers or characteristics, — the same man
is not at all times in the same condition for the cool and equable exercise of his
reason or mental powers ; the strength and vigor of his faculties may even be
temporarily or i)ermanently impaired or diminished by sickness or bodily ail-
ment, or by exciting causes calculated to disturb his equanimity or to influence
his passions, yet if lie be in the possession of his senses, able to judge of the
moral qualities of his acts, and of the particular act for which he is arraigned,
and to distinguish between right and wrong in regard to it, he Is morally and
legally responsilile for his conduct, amenable to the h^ws of the land, and must
aijide by its mandates and penalties. If then, George W. Cole was in this con-
dition, he must, like other men, be tried l)y the standards of the law, and submit
to its judgment. If, on the contrary, he committed tliis homicide when reason
was dethroned, either permanently or temporarily, no matter from what cause,
he is not amenable to the law, and is not subject to its punishment or its
penalties.
"And of all these facts necessary to establish crime, and to constitute responsi-
' ■ ty for its commission, the Petjple are f^ satisfy you, and to satisfy you lieyond
a :easonable doubt. They are to convince j'ou that the prisoner was a rational
l)eing in the possession of Ills senses with the power to discriminate between
right aud wrong in the particular case, and that the act whioh he committed, and
for which he is now on trial, falls within one of the various offences to whicli I
have referred. And if there be a rational doubt of this upon your minds, the
prisoner is entitled to the benefit of that doubt. The prosecution must make
out to your satisfaction the guilt of the prisoner in regard to all the features of
th'j crime, and satisfy you of their existence beyond a reasonable doubt. Tlius
if the charge be murder, they nmst convince you that the killing was perpetrated
by the defendant, that it was done with premeditated design, and liy a person of
sane mind.
)onsi-
leyoiul
[tlonal
tWfPll
Ll, and
liicli I
s, the
Irriako
:'os of
iTlius
rated
Ion of
MORAL INSANITY.
273
Cole's Case — Coiitimud.
" No doubt sanity is tlie normal or usual condition of human beings, and henco
ordinarily you would bo satisllcd of its existence by much less proof than you
would be in some other cases. But still, either by presumption of law or posi-
tive proof, you must be satisfied of* its existence, and of its existence beyond a
reasonable doubt. This doubt, h<jwever, must be one that fairly arises upon
the evidence, not merely speculative or fanciful, but one that commends itself to
your judgment upon a fair and rational construction of the evidence, not to be
Ii;ilitly or capriciously indulged, and especially not as a mere mode of evading
the responsibility of a careful and deliberate judgment upon the u;stimony, I)ut
a doubt resting upon your minds as a result of a most conscientious examina-
tion of the evidence.
"These are the tests which you must bring to the examination and decision of
this case, and by which you must be controlled in the result to which you
ultimately arrive.
" Having tluis defined the offences of which it is possible under this indictment
to convict the prisoner, if your views of the evidence warrant it, let us turn our
attention a little more particularly to the facts of this case, and the allegations
of the parties in regard to them.
" I. The leading fact of the killing of L. Harris Hiscock by George W. Cole, is
not denied. It is very distinctly proved to have occurred at Htiinwix Hall, Al-
bany, on the 4th of June, 18(i7, by a pistol shot, producing almost instant death.
As no provocation appears to have been given at the time of the homicide, nor
any conversation was had bet'veeu the parties at tlie moment, we must probably
look elsewhere for the cause which produced it, and for the justification by which
it is to be maintained. And there being no justification (that question, I how-
ever, submit to you) apparent in the circumstances, occurring at the time, you
would probably consider yourself justified in concluding, that in the absence of
explanatory circumstances, it would bo safe to infer malice aforethought, or a
premeditated design to effect the death of the person killed.
" II. There are, however, if I understand the line of defence, two reasons
claimed to exist which should protect the defendant from punishment.
" 1. Because the defendant was not In a state of mind that renders him respon-
sible for tlie act, — in other words, that, from causes operating for a considerable
length of time beforehand, or recently or suddenly occurring, he was mentally
unconscious of the act in which he was engaged, and legally irresponsible for it.
"2. Because the deceased had seduced the wife of the defendant, and that, in
the transport of rage produced in the defendant by such an invasion of domestic
rights, or by the sudden and overwhelming disclosure of the fact to him, he
committed the homicide for which he is now on trial.
"As the first of these defences, if established, furnishes a complete and abso-
lute protection to the defendant from any liability to tlie law for the act com-
mitted, it may be well to examine that first in order.
"The first defeui^o relied on, then, is Insanity, — a deprivation of reason at the
time the act was committed, resulting either from a settled and well-established
mental alienation, or from the pressure and overpoweriHg weight of the circum-
stances occurring at the time, and the transport of passion arising from suciden
and crushing information of the infidelity of his wife, yielding to the arts and
seductions of her paramour. Aa I have just stated, this is a \alid defence^
18
274
THE LEGAL TEST OF INSANITY.
Note;
if satisfactorily established hy the evidence. If reason was in fact dethroned,
if Cole was not at the time in the possession of his faculties, if tlicy were over-
powered and lost in the presence and under the influence of an overwhelming
domestic calamity, if Cole was at the time incapable of distinguishing betwoon
right and wrong in regard to this transaction, or of aiipreciating the moral
quality of his act, and the evidence satisfies you that this was so, then, like
every other man in that condition, he cannot be held criminally responsible for
the homicide, and is entitled to your verdict of acquittal.
"But while you must remember that the prisoner's sanity must be established
by the prosecution, and established beyond a reasonable doubt, you must also
remember that the ordinary condition of men is sanity, and not insanity, ami
that, as a general rule, he is responsible for his acts, and not exempt from
responsibility.
" In judging of Colo's mental condition, it is highly important particularly to
examine his conduct at the time and about the time of the transaction.
"If Cole committed this act with apparent coolness and deliberation, — al-
though more or less excited, — spoke of it with apparent Intelligence and decision
and appreciation of its character and effect ; if he mentioned it immediately after-
wards, as if he understood what he had been doing, and recognized its natun;
and object; if he armed himself with a pistol or pistols the day before at Syra-
cuse, and you shall conclude he did so with reference to this encounter and this
occasion, — of which you are to judge with most careful discrimination, because
it bears with much force on the issues in this case ; if he took measures to have
a weapon or weapons in a situation to be effective, and located them so as to be
likely to operate; and if, after reflection on the subject and a conference with
one or more of his friends, he proceeded deliberately to the commission of the
act of killing, and with effect; these are all legitimate subjects for your con-
sideration, as well on the question of sanity as oa the question of premeditated
design to effect the death of the person killed.
" You must judge of the character and motive of the defendant's acts. What
was his object In providing himself with those pistols? Was it with reference
to this occasion, or was it in connection with the discharge of his duties in the
revenue service? Was the killing (as the defendant's counsel contend) not pre-
meditated when the prisoner visited and entered Stanwix Hall? Was he moved
to the commission of this act by the sudden access and irresistible pressure
of excited and overwhelming passion, roused by the stidden and unexpected
sight of the destroyer of his domestic peace, or he whom he supposed to he
such, — the defller of his marriage bed, the seducer of the dearest object of his
affections, — dethroning his reason and pressing him on to the commission of
this act, under the influence of an ungovernable freuzy, unsettling for the time
his faculties, and enthroning insanity in their place?
"These are questions submitted to your most careful and deliberate judgment,
and will require the application of your best faculties and your most impartial
and conscientious deliberations, in order to conduct you to a right result.
" The defendant's state of mind, as evinced by his conduct, by his declarations,
and his acts, by his bodily ailments as effecting his mental condition, his clieer-
ful or moody temperament, the change (if there was one) in the character of his
temper and disposition, the extent to which it was carried, the causes which
ithronofl,
ere over-
ivhelinin;;
between
he moral
tlien, liko
nsible for
utablished
must <ils()
sinity, and
mpt from
cularly to
;ion, — al-
d decision
tely after -
its nature
■e at Syra-
ir and this
n, because
•es to liave
as to l)e
pence witli
ion of the
your con-
meditated
ts. What
reference
;ies in tlie
) not pre-
he moved
pressure
nexpected
sed to be
ect of his
lission of
the time
judgment,
1 impartial
alt.
|larations,
lis cliecr-
Itcr of his
Les which
MOIiAL INSANITY
275
Cole's Case — Continued.
produced it, and other circumstances not necessary to be alluded to at crrcater
lenjith, as exhibited at and about tlie period of the homicide, and for a period
previous thereto more or less distant from the central and important, to whicli
your attention will naturally be more especially directed — are all important
subjects for your consideration, and entitled to more or less weight, accordiiis;
to their nature, and to some extent according to their nearness in point of time
to the scene of the fatal transaction.
" In illustration of the prisoner's mental condition, much medical evidence has
been introduced, and must be considered Ijy you. It is for you to judge of its
weight and character, and determine it by the best light you have. As one
means of determining It, it seems to me (it is, however, for you to judge) that,
other things being equal, those medical witnesses who were acquainted with
the prisoner, with his ordinary habits and temperament, with his personal
Idstory before and at the time of the transaction, would on that account possess
some advantages in forming an estimate of the prisoner's mental condition.
" Still much must depend upon the capacity, judgment and discrimination of
the particular witness, and upon the manner in which the testimony is pre-
sented. With witnesses who have not had a personal acquaintance with the
prisoner, or opportunity for a personal examination, the weight of their testi-
mony mu:^t depend somewhat upon other considerations, and upon evidence of
the causes. Influence, symptoms and characteristics which usually mark the
presence of mental derangement. Some of this, perhaps much of this, where
the prisoner has not been known or personally examined, must necessarily be
more or less matter of mere opiuiou, the value of which it is not always possi-
ble correctly to estimate.
" Several causes may operate to produce insanity and are entitled to more or
less consideration in the particular case.
"Insanity is sometimes inherited — transmitted down In the line of family
descent, occasionally not exhibiting itself, and again reappearing after one or
more generations. Some evidence of this taint of insanity existed in the family
of the defendant. This is a subject for your consideration; but you must re-
collect that the reappearance of this mental disorder is not uniform, and you
must carefully scan the prisoner's declarations, his acts, his general conduct,
his mental manifestations, to see whether you find in them the traces of actual
insanity — that actual mental derangement, which alone can avail, so far as this
point is concerned, to accomplish perfect immunity from criminal responsi-
bility.
" Again it is said that the prisoner's bodily ailments were ot such a cliaracter
as justly to lead to the inference that they were calculated to affect, and did
affect, his mental organization and developments in such a way as to produce
Insanity. There seems no reason to doubt that in 1802, while doing honorable
service in the cause of his country — for which, whatever may be his fate under
tills accusation, he deserves grateful recognition — received a severe and crush-
ing injury, followed by other injuries thereafter, from the effects of which he
has not yet fully recovered, which more or less disabled him, and which were
cdculated to have, and did have, a depressing effect upon his spirits and tem-
perament, making him more or less moody and melancholy, producing more or
less aud sometimes very considerable depression of spirits, resulting as his
276
THE LEGAL TEST OF INSANITY.
Noti'S.
counsel claim, in a settled melancholy, allied to if not identical with the melan-
cholia of the medical profession, and constituting one of the various forms in
which, as they contend, insanity is manifested.
" But even if Cole's mental manifestations were of this clear and decided char-
acter, and had assumed tlic form of the melancholia of the doctors, this is not
precisely the insanity re(|uired by law to sliield its possessor or subject from
responsibility to the criuiinal laws of the land. The insanity of the medical pro-
fession, as described before you by several of its leadinu; professors, is not pre-
cisely the insanity of the law. They describe melancholia, which seems to b(!
marly synonymous with a settled melancholy of an excessive, aggravated, and
unreasonable character, indicated by a higlily nervous and unusually moody tem-
perament, and by a mind more or less morbidly affected in its ordinary functions,
as insanity.
" JJut whether these inay be more or less present in legal insanity, or the insanity
recognized by the law, they are not precisely that kind of insanity or mental un-
soundness which marks exemption from criminal responsibility. The law, in
dotormiiiing a [terson's responsibility for, or immunity from crime, applies a vrry
simple, Init easily comprehended test, and it is this: Did tlie accused party
understand the nature of the act in which he was engaged, so as to understand
whether it was right or wrong? Was his reason dethroned or operative? Was
he able to comprehend the nature of his conduct or not? If he was, then he is
responsible to the laws of his country, is bound to ol)ey them, and is punishable
for their violation. It may be, therefore, that he was sul)ject to melancholy in
an aggravated form. So long as it does not sap or subvert tlie foundation of his
intellectual faculties, he may be carried under the pressure of excited feeling
into an outburst of passion, Avhich may be next to uncontrollable ; yet if reason
presen-es her dominion over his intellectual powers and has not yielded her tiirone
to the frenzy of mental alienation or madness — if, notwithstanding all this, lie
has sufficient comprehension of the nature of tlie act in which he is engaged to
appreciate its moral quality, to distinguish right from wrong — if he knows he
is doing an act forbidden by law, he is held accountable for his acts, he must !)<■
regarded as violating the laws of his county, and must abide the fate of other
criminals."
[The judge here read the opinions of the court in Freeman v. People,^ Willis v.
People,^ and 0''Brien v. People?"]
" This is all I deem it necessary to say to you on this first and principal branch
of the defence. I cannot comment on the evidence in detail. Tiiis has been done
in the most able and discriminating manner by counsel. And j'ou will probal)ly
be able to come to a conclusion satisfactory to yourselves on this leading branch
of tlie defence.
'♦ The conduct, the temperament, the bodily ailments, i e mental manifestations,
the personal history, the traits and characteristics of e defendant, have been
pretty thoroughly scanned and held up to your view, as exhibited from 18C1 to
the present time. And I think I need not make any further suggestions to you
in regard to them than to suggest that, as far as possible, you bring them all to a
practical test, and determine by his actual mental manifestations, as developed
' 4 Denio, 0.
a 32 N. Y. 715.
» 36 Id. 576.
MORAL INSANITY.
277
Cole's Case — Continued.
in his clmractcr, his declarations and his conduct, his ordinary and daily habits
of life, his attention to, and capacity for business, tlie impression made in ail
these respects upon those who associated with and knew him, whether he should
stand exempt from lial)ility to the criminal laws of his country, or had sulHcient
moral sense or intellectual capacity to be subjected, like ordinary men, to her
mandates and her penalties.
"The value of the medical evidence you must estimate for yourKClves. You
are yourselves the ultimate judges on this point. And it is upon your own
jiulgment, as founded upon the evidence, tliat the result must Anally depend.
The opinions of medical men may have a certain value in enlightening your
iiiiuds in regard to it, but it should by no means induce you to discard j'our own
careful and deliberate judgment upon the whole testimony.
"And of the existence of this fact of insanity, as of all other facts in the case,
you are, as counsel liave been careful to impress uj^on you, yourselves and not
the court, to be the final and intelligent judges. The court has no disposition
to invade your province on that subject; but this will not, I presume, induce 3'ou
to aiscard or reject any suggestions, coming from what quarter they may, tliat
seem to you to have any intrinsic force; or to aid you in arriving at an intelli-
gent judgment upon the case. None of us are so wise that we can safely afford
to reject adventitious aid on a matter so important; and in a matter of life anil
death the responsibilities are too great to induce us to attempt to be too self-
reliant.
".Vnother defence set up on this occasion is, that Iliscock was the seducer of
Colo's wife, and therefore justly liable to his vengeance. No doubt such a de-
fence, if established, would strongly appeal to your sympathies, being regarded
in some quarters as no more than a just vindication of marital rights, and the
only efflcient mode of protecting the purity and inviolability of the marriage
bed. But we are not here to administer sympathy, but to execute justice; to
carry into effect the laws of the land ; to enforce its solemn mandates, and not
to nullify or relax its positive commands by misplaced sympathy, or morbid
clemency. If our duty is clear, we forswear ourselves if we do not perform it.
I liave taken a general oath faithfully to perform the duties of my office; you
liave taken a special oath, well and truly to try and true deliverance make be-
tween tlie People of the State of New York and George \V. Cole, and a true ver-
dict render according to the evidence, so help you (iod. This duty we must
discharge, at whatever hazard, whetlier painful or agreeal)le. Neither manhood
nor honor, the restraints of conscience, nor tiie solenni mandates of the law,
allow us to decline its performance, or to hesitate at its execution.
"Many laws may net be in precise accordance with our views of policy, or
even of stiiet justice, yet it would lead to the utmost confusion and injustice
should we refuse to exe<!Ute them. If we are dissatisfied, we should apply at
the proper time to the projjcr forum for their amendment, or seek to avert their
excessive rigor by an apjieal to executive clemency. Certainly, it ia to be re-
srretted if further legal enactment.^ could be of any avail to restrain the unholy
passions and devilish arts of 'the seducer and adulterer, that they have not here-
tofore been made. But the wisdom and efficiency of such enactments have been
Muesticned. It is enough for us to know that we must administer the law as it
Is, and have no right to usurp legislative power, and apply to a past transaction
■
278
THE LEGAL TEST OF INSANITY.
Notes.
laws of our own creation. The injustice and unconstitutionality of such a pro-
coodinij; would l)e nianifest, and the gravest objections to it exist. Let us con-
tent ourselves with administering the law as we find it in our own appointed
spliere of duty. Then sliall we have consciences void of offence towards all
men, and the happy consciousness that in the spirit of our oaths, and in con-
formity Willi the obligations wluch rest upon us, we have, as faithful and law-
abiding citizens, executed the law of the land.
'* But tliere are several reasons why you cannot give effect to this defence: —
" 1. The adultery is not in proof. It has not been established by the evidence.
If that evidence has been improperly excluded, the responsil)ility for tliat error
is with the court, and its correction l)elongs to another forum, and may be ac-
complished under the exceptions talcen by the defendant to the decisions of the
court. The statements of the prisoner are not evidence of that fact. Tiiey were
not called fo>" 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 tal<en tlie life of his fd-
low-nian, and must al»ide the stern vi;;or with which she maintains her violatid
majesty. Neither, therefore, in tlie allei;ed adnltery, for which the deceased was
slain, because the adultery has not l)een proved, and would not have betni u »le-
fcnce if it had l)eeu, considerini; the period of its allej^ed commission, nor in the
crushinj; and overwhelmiu;^ wei,u;lit with which theeviilenco of his domestic dis-
honor and of the decciksed, as its aliened autlior, was brouuhthome to the knowl-
ed;;e of the defendant, can the prisoner lind exemption from the conHcquenccs
of the homicide. He must lind it, if he lind it at all, in that dethronement ol
reason, if lu actually occurred, which exempts every person, however great
would otherwise bo his crime, and however awful would otherwise be the ul-
tcndino; circumstances, from conduct to which his minil never gave a willinj^
and intelliiient consent.
" But there is another aspect of tlie case, to which I feel bound to call your at-
tention, because tliere is a i)ossible view of the evidence which you may feel at
liberty to take which will reduce the nrade of this offence from murder in the
llrst degree to murder in the second degree or manslaughter In one of its
various degrees, and more particularly to manslaughter in the third degree, the
punishment of which crime is iiuprisoniuent iu the State prison for the terms
which I have be^re mentioned.
" I have alreaily stated to you that murder in the second degree embraced all
other kinds of murder than murder in the lirst degree, and though not well de-
tined in the statute, might fairly be sui)posed to include that kind of murder
which was not cliaracterized by that degree of enormity, or of i)remeditation,
which might be supposed to constitute murder in the first degree, and to be justly
punishable by the forfeiture of life.
" If, therefore, your view of the circumstances of this case shall enable you to
take this more lenient view of the conduct of the prisoner, to which I have just
I'eferred, you may tliid him guilty of muriler in the second degree.
•'Again, if your view of the evidence, acting under the responsibility of your
oaths, sliall enalile you to take a still inoi'e lenient view of tlie evidence, and ti)
conclude that the intent of the prisoner was not to produce death, and that tlic
liomicide was committed, not with premeditated tlesign, but in the lieat of pas-
sion, by the use of a deadly weapon, then it will be your duty to convict tiie
prisoner of manslaughter iu the third degree, the punishment of which crime is
imprisonment in the State prison for a terra of not less tlian one nor more than
four years.
"As heretofore stated, the radical distinction between murder and manslaughter
is tlie presence or absence of a design, or premeditated design, to eff»'ct tlit'
death of the person killed. If you have rational doubt on that point, arising un-
der the testimony, and justly founded thereon, it is the benevolent intention and
the positive injunction of the law, that you should allow it to operate in favor of
the prisoner. And if, in the dispassionate judgment which you shall give the case,
you shall come to the conclusion that though you believe the prisoner to have
been driven to the borders of distraction yet not actually to liave euteredits do-
MIJUAL INSANITY.
281
Colo's Case — Contimu'il.
th which he
ln! cxcrcisf
lis acts, he
' of his fel-
ler viol.ited
'cuiisod was
been a de-
, nor iu tlic
nicstic dis-
the kiiowl-
nsoquciieo
)iieiiieiit of
over fj;ri';it,
ijo tiio at-
a williiij;
vll yourat-
nay feci at
rder iu tlic
Jiie of its
licjjfrcc, till'
■ the terms
braced all
t well do-
of murder
leditation,
be justly
)le you to
have just
;y of your
e, and to
d that the
it of pas-
uvict tiie
criuie is
aore thau
slaughter
ft'ect tlie
isiug uii-
itiouand
favor ol
the case,
to have
d its do-
main, and therefore feel bound to hold him resi)ousil)l(! for a violation of the
law, and yet believe him to have been urged to tlie terrible catastrophe with
which this domestic drama has terminated, by the crusldng conviction of his
(lumestic disliouor, and with a force and precipitation and pressure, wliich de-
|)rived his act of iiomicide of that premeditation whicli stamps it witli tlie legal
ingredient of malice aforethouglit, you are at liberty under such circumstances
to negative the element of premeditated design; and lluding tlie act committed
in tlie sudden heat of passion, and iiy the use of a dangerous weapon, to declare
the legal consequences of such killiug, by prouounciug him guilty of manslaugh-
ter In the third degree.
"The responsibility of determining the facts by which the grade of the olfence
is to be measured, Is of course, with you and not witli me, and you must dcter-
iiiine it under asoleinn sense of the important conseciueiices which rest uponyour
decision. It has been suggested that a verdict of tiiis cliaracter, tiiiding the de-
fendant guilty of an offence of a less grade tlian that charged In the Indictment,
will not be acceptable to the prisoner, who desires a full ac(|ulttal, or a convic-
tion of murder in the first degree.
"Allow me to say, gentlemen, the preferences or wishes of the prisoner, on this
point, should not, in my opinion, affect your action one way or the other. You
iiave a higher duty to discharge thaneitlier to please or to offend the prisoner or
the People. You are to find a true verdict according to tlie facts estai)lishe(l be-
fore you. You are to declare it witliout fear or favor, and without reference to
the wishes of eiliier side.
" You are not to be precipitated into a verdict of absolute acquittal, because a
conviction of murder in the first degree would be too severe to correspond witii
your views of duty. You are not to be withheld from a verdict of partial con-
viction. If a verdict of greater or less severity shall not faithfully' record your
conclusions from the evidence. Y'ou must find a verdict founded entirely upon
your own view of the testimony as It has engraven itself upon your minds. You
should also bo careful not to be carried away by feelings of sympathy beyond the
boundaries of duty. Y'ou may justly and properly eutertain a feeling of respect
and gratitude to General Cole for his gallant services during the war; but when
he appears Iu this tribunal, ami is summoned to Its bar to answer for crime, he Is
like all other men similarly situated, to be tried by the law and the evidence.
Neither gratitude for his military services, nor sympathy for his unmerited suf-
ferings, nor regret for his domestic calamities, can annul or repair the stern
requirements of duty.
"Nor, on the otlu-r hand, must you be betrayed by abhorrence for a homicide,
appearing, if you so regard it on the first look at the transaction, to be svitliuut
justlflcation or excuse. Into a rash and precipitate verdict of conviction. The
case lias various aspects, all of which you must consider, and no more conscien-
tious or imperative duty is demanded of a jury than to keep its judgment in
suspense till every fact is carefully examined, and its just weight and bearing
faithfully determined.
" Y'ou And iu the prisoner, perhaps, an individual laboring under melancholy,
more or less, whether or not it has attained that intense tind aggravated charac-
ter expressed by the melancholia of the medical profession. You find him, it
may be, materially changed iu his disposition aud temperament, his tastes and
2,Sl'
THE LKCJAL TEST OF INSANITY.
Notes.
his habits, from wliat they won' at a foriiuT period of his life. Life, It may h' ,
lias lost for him many of its charms, and liodily ailments and Injuries have not
only subjected him to much palii and suffering, but liave so destroyetl or Im-
paired Ills health and his constitution as to render life a, burden rather than a
blessiu}?.
"All these things under prop<!r circumstances, and on a proper occasion, may
make him a lit sul)ject for your consideration and sympathies. But this is not
the period wiien you are to seek their indulijence, or at least if they operate so
far as to distr.ict your mind from tlie performance of a sterner and hlfrher duty.
Not, indeed, that you are to forjiet you are human, or that you can be expected
to divest yourself of those feeliniis and .sensibilities which are implanted In every
manly and fienerous heart. But that you are to be careful not to be led away l)y
them from the performance of duty or into forfj;etfidness of the stern obll]L;ations
whi(,'h rest upon you as Impartial arbiters of the prisoner's destiny.
" Tnie, Indeed, if under the infhu'uce of tlie evidence you conclude that the
prisoner's reason has been detlironed, and that lie was not at the time of this
transaction an intelligent aiieiit, havintj the power of mental discrimination Ix-
twcen rijrht and wroiii; in rejiard to the particular transaction wliich you are
undertakin<i to invest iyiate, he niiist stand ac<piitted before you upon the jiround
of criminal irresponsii)ility. Hut if he had this power of mental discrimination,
and could distiniiuisii in rei!;ard to the moral ([ualitiesof his conduct, then, iiot-
withstandiiifj; your pity for the man, and your sympathy for the sufferer, you
must condemn the criminal, and especially you must not be led aside from the path
of duty by a recollection of tlie severe rupture which has taken place in his do-
mestic relations, unless the deceased is proved to have been connected there-
with, and in .some sense the author thereof, so as justly to call down upon himself
within the limits of the law, the just ven^;eance of Injured husband. These in-
juries, at least as intelligence of them was communicated to him, were of the most
heartreudini; character, and must of necessity, excite the ardent symi)athy of every
feeling person. It may be ditllcult, perhaps iini)ossible, wholly to divest our-
selves of these feelings, but we shall fail to meet the stern and inexorable neces-
sities of tills hour if we allow tliem to turn us aside from the path which the law
has appointed for us to tread. That path is the path of duty; that duty is to tliul
a verdict accorling to the law and the evidence, and whether it enjoins upon
you the agreeabh; task of pronouncing a verdict of ac(iuittal because the evi-
dence fails to satisfy you beyond a re.ison.ible doubt of the guilt of the prisoner,
or of his responsibility for crime, or the painful one of pronouncing a verdict of
conviction, because the evidence satisfies you beyond a reasonable doubt of the
prisoner's guilt and responsibility for crime, you will, I doubt not, accpiit your-
selves like men, and without fear or favor, without partiality or prejudice, dis-
charge the solemn and responsible trust which the law has imposed upon you on
this occasion.
" In this confidence, I commit this case into your hands for your final delibera-
tion and verdict.
" In relation to the specific points submitted by the counsel for the defence, and
asked to be made part of this charge, I charge the law upon the subject of in-
sanity to be in the authorities I read to you.
Mr. Brady. — " With reference to what has been said by the court upon the
MOKAL INSANITY.
283
Cole's Ciise — Contlmii'd.
(luostioii of flndinu; the accuspd .guilty of mansliiii'ilitcr, I desire to say in hclialf
nf tlie prlsoiKT, tiiat, In tlio judgment of liis (•ouusci, tiiiTo Is no rational or
|M>ssil)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
<lcnial that he killed with intention to kill, because he was not legally capable of
forming an intention to kill, as an intention wliich was recognized l)y the law to
be criminal, and thereby to render him accountable to human law. Practically
l)y the evidence, the physical act of killing (that is so often a sul)ject of dispute
in homicide cases), has been admitted. But the mental character of the act, the
legal accountability for the act, were put In issue.
".Vfter the arraignment you were then severally called and sworn. Whatever
was suld or done during the progress of challenging or impanelling, is to be
disregarded or forgotten Ijy you as In any way bearing upon the present relations
lictween you and the prisoner. For instance, the circumstances tliat the de-
fence or the prosecution excluded jurors, are not in the remotest manner in the
case. Each side had that statutory right to exclude. A right given and exer-
cised under statute is never amenable to criticism. That process of cliallenging
and impanelling was simply upon the relation of eacli of you, as a juror in tlie
then future, toward either the People or prisoner. When you were sworn, both
the People and the prisoner stood practically contented to have you hear evi-
dence and all which accompanied the impanelling of tlie twelve is now as if it
never had been said or done.
" The evidence began and it has closed. Your inquiries in considering the
whole evidence will naturally be: First. What are tlie theories of each side?
Second. What are the rules of law that connect themselves with those theories?
yuiWj.
> 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 <iuestions for you to de-
termine.
" If you shall arrive at tlie conclusion that the accused was in a state of sane
mind at tlw time he llred tlie shot, then it becomes important to consider the
legal (piaiity of the act.
"If you l)elieve, from the evidence, that the accused armed himself with a
loaded pistol, and sought out the deceased and shot him upon grudge or malice,
uitending to kill, he is guilty of nnirder in the llrst degree. If, having a loaded
pistol, he shot deceased without intent or design to take life, and in the heat of
passion, then it may be either manslaughter in the third or fourth degree.
Technically describeti, by the statute, murder, lirst degree, is the killing of a
human being, when not justifiable or excusable, nor coming under the head of
manslaughter, and perpetrated with a iiremeditated design to effect death.
" I am requested by the counsel for the defence to charge certain propositions
respecting tlie llrst shooting. This llrst sliootiiig is regarded by the prosecution
as evidence of malice, or grudge, or ill will, and of tlieir manifestation by ac-
cused towards deceased, and it is an important circumstance for you to weigh.
" 'As to the (alleged) shooting of the ileccaseil by the dofendant on March f3, 1807, that
cannot be taken by the jury as evidence of malice, unlcs.s the prosecution liave salisUeil
them by proof, beyond, all reasonable doubt, that the shooting was felonious.'
«' Which I charg<'.
" 'To do this the proof must be such as would induce the jury to llnd a verdict against the
defendant, if he was on trial under an indictment for that act.'
"Which I charge.
" 'It the jury believe from all the evidence in the case, that act was committed by the
defendant in a state of insanity, they are to discard It from their consideration altogether.'
" Which I cliarge.
" 'The fact that the defendant was not prosecuted for that act, is strong evidence that the
act was not deemed to be a crime at the time of its commission.'
"Which 1 decline to charge.
" ' To make the threats evidence of malice for any purpose, they would have to be uttered
while the defendant was in a sane state of mind.'
"Which I charge.
" ' To connect them with the shooting of November 2."), 1809, the jury must find that they
wore uttered maliciously — seriously — with the intent to execute them when and as they ini ■
ported, by the dcfendaut in a stale of sanity, and that that shooting occurred in )')ursuance
oi these threats.'
"Which I decline to charge.
" 'In passing upon the question of whether that act was or not criminal the jury are to
take into consideration the dilUculty they may suppose the defendant to be under in defend-
MORAL INSANITY
29;i
Macfarland's ('iiso — Coiitiiiiicd.
1807, tlial
that thoy
I they iiii-
jursuance
iry are to
n defend-
ing himself Hgainst it from the lapse of lime since it occurred, the disappearance or disper-
sion of witnesses, an<l tlie like.'
" Wliicli I (leclinu to charjro.
" 'As to the (alleged) shooting of March 10, 1867, it is only evidence against the defendant
on the present indictment, on the principle that that shooting, and that of November 3.'i,
imi'i, occurred while the defendant was iu a sane state of mind.'
"Which I cliurge.
" 'If the jury believe that the act of November 25, 1869, occurred while the defendant was
in a state of insanity, it is unaffected by the act of March 1:!, 1867, even though that act was
committed in a state of sanity.'
"Which Icharije.
"'Even supposing the defendant to have threatened to kill the deceased, ir. conversa-
tions occurring antecedent to his being shot on November 2'>, 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 <if (jniltn ofiiwinlcv in thefivKt degree .
In Commomocdlth v. Frcth,^ who was tried in Ih,j8 In the Court of Oyer and
Terminer of rhiladeli)hla for the nnirder of Wni. Lee Smith, LiDi.ow, J., charired
tiie jury as follows: " The defence In this case Is that the i)risonerat the time
uf the commission of this offence was not an accountable belii^i; if, gentlemen
of tlio jury, this alleiiation is true, it would be monstrous to punish him, and
tlu lefore we find the law to be, if one charijed with the conunission of crime is
so entirely devoid of understanding as to be either an Idiot or a madman, he is
thereby acquitted of all guilt, he Is not criminally responsible to the offended
majesty of the law, but becomes at once rather an object of pity than the subject
of punishment.
" (lentlemen, It is unnecessary for me to say to you, that we will be oblised to
iiivestiijjate a most delicate and dangerous subject; nevertheless we will en-
deavor to lay such rules and tests as will enable vqu to arrive at a satisfactory
conelnsicm.
" If the prisoner at the bar, at the time he cominitted the net, had not sufficient
cMpacity to know whether his act was right or wronji, and whether it was con-
trary to law, he is not responsible; that is in fact generiil Insanity, so far as the
act in cpiestion is concerned, and It must be so trrt at in extent and degree as to
blind liim to the natural consequences of hi., moral duty, and must have utterly
destroyed his perception of right and wrong.
" The test, in this Instance, as you perceive, is the power or capacity of a
prisoner to distinguish between right and wrong in reference to the particular
act In question ; for although a man may be sane upon every subject, yet if he be
inad, to use an expressive phrase, upon the subject, and so far as the actimder
immediate investigation is concerned, he thereby loses that control of his mental
powers which renders him a responsible being. The test thus suggested has
been adopted by the judges of England, and by the courts of our own State, and
is too well settled to be shaken.
" But suppose that the prisoner was able to distinguish between right and
I ong, and yet was laboring under partial insanity, hallucination or delusion,
which drove him to the commission of the act as a duty of overwhelming neces-
sity, is he in such cases responsible for his acts?
" If the delusion were of such a nature as to induce the prisoner to believe in
1 SPbila. 105; 5 Clark, 455.
300
THE LEGAL TEST OF INSANITY.
Notes.
the real existence of facts which were entirely imajiinary, but which, if true,
would have been a good defence, ho would not be responsible. We, however,
desire, at this stage of our remarks, to refer to other delMsions than the class
thus spoken of, reserving for future consideration our remark:? on this branch of
the subject.
" That partial insanity, hallucination or delusion, coupled with the power of
discriminating between right and wrong, was no excuse for crime, has betii
ruled to be the law of England, and to this point did the judges of f^ngland refer
in McNaghten^s Case,^ in their first answer to the questions propounded to tb.eiii
by the House of Lords. This doctrine was also stated to be the law by our pn-
decessors upon this bench in the case of Coinmonioealth v. Farkin,"^ and would
have remained the law of this State, but for the opinion and charge of Ch. J.
Gibson in Commonwealth v. Mosler,^ where the chief justice says: * It (insan-
ity) must amount to delusion or hallucination, controlling his will, and making
the commission of the act a duty of overruling necessity; ' and again he says,
' The law is, that whether insanity be general or partial, 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.'
*• Medical writers agree that instances constantly occur of the commission of
acts of killing by those who not only know that the act about to be committed is
wrong, but that punishment is afBxed to its commission by law.
" We cannot, however, leave this branch of the subject to doubt or uncer-
tainty, and our conclusion is, after a somewhat extended investigation of tin-
law, that the proper rule to be adopted upon the point in question is the foUow-
rel
11x1
wll
to
ilel
thJ
(Icll
sun
thai
If
chd
" If the prisoner, although he labors under a partial insanit}', hallucination or
delusion, did understand the nature and character of his act, had a knowledge
that it was wrong and criminal, and mental iioworsullicie-nt to apply tbat knowl-
edge to his own case, and knew if he did the act, he would do wrong, ard would
receive punishment; if further, he had sulliclcnt power of memory to I'ccollect
the relation la which he stood to other«. and others .«tood to him, that the act in
question was contrary to the plain 'I'ctates of justice and right, injurious to
others, and a violation of the dictates of duty, he would be responsible.
"A man must, therefore, labor under something more than a ' moral obliquity
of perception,' and 'a man whose miud squints, unless imiK'lled to crime l)y this
very mental obliquity is as much amenable to punishment as one whoso eye
squints.'
*' The jury must, therefore, even though they believed the prisoner labored
under a diseased and unsound state of mind, be satisfied that this diseased or
unsound state of mind existed to such a degree, that, although he could distin-
guish between right and wrong, j'ct with reference to the act in question his rea-
son, conscience, and judgment were so entirely perverted, as to render the
commission of the act in question a duty of overwhelming recesslty.
"But, gentlemen, there is another species of delusion entirely distinct from
those we have just considered, which is recognized by the law, and which when
the jury believe that it clearly exists will entitle the prisoner to an acquittal. I
> 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<lultery, and to hide it, of nuinUr.
And we read that when the mob had taken his Divine Master before the high
vidcufi' ill
onduct Oh
liis l)flia'il.
ti'd ill lii^
iiunatiira'
K'ssi's sa_\ ,
r loss tN-
press tlu'ir
cited,' ami
lie swoii
LTC is, \va<
jnc at till-
i'el<ing n -
; gestures,
Viiryinu; in
s passion.
.' WitUL'SSOS
led it; bnl
othorwisf,
id sliotliini
) witnessis
the lire of
kyassiiriud
manifest -
Ml, tliat he
sion, were
whole life',
|)laiiied on
ideuce nf
ting upoi'
slept \)\n
by all the
r. It lia<
exemplary
her in his
rd, or any
L'd to your
liniiig thi'
hat if iii>
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 (18<iO).
MTGii. .-Mii (1S7:{).
' Stale V. Bi-aiidon, 8 Jones L. 403 (18G2).
^ People r. Finley, HS Mich. 4S;) (ItiTS).
6 Boswell V. State, C:J Ala. 307 (IST'.t)-
« 1 F. &F. 666(l!j5'.»).
310
THE LEGAL TEST OF INSANITY.
Notes.
the pcrpotrntion of tlio net, and gcnoral evidence was given that tlie prisoner,
while in Canada, havln;^ sednced a yo»ins woman under a promise of murriaiic,
which lie had l)een unahlc! to fuUll, hy reason of his rej^lment having been onlen il
lioMic, his mind had been much affected by the circnmstanee. Hit.vMWKi.i., J{.,
charsied the jury as follows: " It has l)eeii urijed for the prisoner that j'ousliouM
ac(|uit him on the liround that it bciu'j; impossible to assiixn any motive for tin
perpetration of the offence, lu? must have been actinj:; under what Is calloil ;i
l)owerful and irresistible Inllui'nce or homicid.nl tendency. But I must rennirk
iis to that, that the circumstance of an act bcinii a])i)arently motiveless is not ;i
irround from which you can safely infer the existence of such an inlluence. Mo-
tives exist unknown and immmerable which miirht prompt tlic act. A morl)iil
and restless (but resolute) thirst for blood would itself beanu)tiv(! uruiiiii td
>ncli 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<i\IZi:U 1\ F.NOLANIi.
.'HI
No Ti'st Adopted in New niiiiipshlri;.
e prlsoiK-T.
f intirriaiic,
'Oil OrdlM'rd
MWKl.l., ]{.,
youfslioiiM
vo for till
is calloil ,■!
1st rciiiaik
'ss is Hot ;i
nee. ]\I(i-
A inni'hiil
uruiim til
I hv tcniu'il
iidraw wwK
I'cstraints
llUkT Mich
11(1 llic rc-
doriiijr the
- tlitit for-
") tll(! .siiii-
of tlu' act
Tiic pris-
oner Ava>.
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<! obtain tlio object cominilled niiirder.
'I'iiat mi<;ht show a morbid stale of mind, lint not delusion. Homicidal mania,
ai'ain, as described by the witnesses for tlio defence, .-liowed no delusion, it
iiienly sliowetla morliid desire for l)l()od. Delusion meant tlio lielief in wlial
did note.\ist. Tlu- (luestion for tlio jury was, whether tlus prisoner at the time
'le comiiiilted the act was lab(jrin,u; uiidi'r such a six'cies of Insanity as to he iiii-
iiware of tlio nature, tlu; character, or tlio consequoiiccs of the act he I'ommitted.
Ill other words, whether lie wa.s incapable of icnowinj: tluit what he did was
wroiijr. If so, they should ac(piit him; if otherwise, they should llnd a vi'rdict
of iiuilty." Venlict, j:;iiilty. Tlio prisoner was executod, liaviiii^ previously
a( knowlediicd Ids criiiio and responsibility.
" The law," said Jiaron Ai.dkuson, in Jlnj. v. I'atc,^ " does iiotacknowiedsc t'.ie
doctrine of anunconlrollablo impulse, if the person was aware it was a wront; act
lie was about to commit. A man miuilit say ho picl^t'd a pock(;tfroiii some uneoii-
irollablc impulse, and in that case tlio law would have an iineontrollaldo impulse
)i) imnish him for it."-'
(> 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-
-<iu of insanity,' if the killint? was the offsprin^j; or product of mentai disease in
!iu; defendant; tiiat iioitlier delusion nor kiiowled,u;e of riiilit and wroni?, nor do-
siL'n or cunning in iilanning and executing the Ivilling and escaping or avoiding
detection, nor ability to recognize acquaintance or to labor or tmnsact business
IT nianago affairs, is, as a matter of law, a test of mental disea.se, but that all
symptoms and all tests of mental disea.se are purely matters of fact to l)e doter-
iiiiiied by the jury; that whether there is such a mental disease as diiisomania,
ami whether defendant liad that disease, and whether tlie killing of IJrown was
the productof such disease, were questions of fact for the jury." On appeal this
instruction was allirmed.
•5 27. State v. Pike — Elaborate opinion of Doe, J. — Mr. Justice Dok,
wiiilo dissenting from the opinion of the court on other points, delivered an
eliiborate opinion in favor of the charge of the court below on this point: —
"The defendant's exception," said he, " to the instructions given to the jury
1 Hcnnett & Heard's Ld. Cas. Crini. Law,
liW.
- And see Reg. v. Rowler, .54 An. Reg. 310.
Martin's Case and Reg. v. Rrixey, both cited
inl IJennett & Heard's Leading; Cas. Orim.
I^aw, are instances of insane delusions
which were the cause.? of the crimes com-
mitted, one the burning of York C'atliedral,
the other the murder of a cliild. In both
cases the prisoners were acquitted.
' 4!1N.H. 399 (1870).
,'512
TIIK Li:(JAL TKST OF INSANITY
Notes.
ill relation to lils iv.s|)oii.sll)lllty iis affected by (ll|)soiiitinia, raises tl>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<no\\ le(l:re of rlirlit and wrontr, or delusion, is tlie test in otlier aliejieil
forms of insaidty, knowledge and delusion must Ik' the test in aileifed dipso-
mania. Tlio eorreetnesM of all tiio instructions j;iven on tl»e te.sts of mental
dl.sease, is involved in tiieexceptlon taken hy the defendant.
"This was the llrsl instance in whieli siicii instructions were over Kiv»'n; Imt
they an; an application of ancient and fundamental principles of tliu counnoii
law. A i)ro(luct of mental disease isnotaeontract, a wlllora crime; andtlie tests
of mental disease are matters of f.act.' Tried hy the stanthird of lenal prece-
dent, t'lvj instruclinns aro wronu;; tried l)y the standard of le;;al principle, they
are rii^lit. We iiave come to a point where we can plainly .see that tlie paths of
precedent and principle diverge, and wliere we must choose between them. In
makinit our choice there are various considerations wlucii weaken the attraction
of precedent
".V slrikiu!;, conspicuous want of success lias attended tlie efforts made to ad-
just the lei^ai relations of nieulal disease. In rei^ard to tlu; validity of a contriiel
as affected l)y insanity, tlie autliorities have l)e{ n contlictint^ and vaciliatinu'.
Littleton says: '• No man of fidl a;j:e sliail be received in any plea by tlu; law to
disable his own pi-rson.' ■' Coke says: 'Tiiere have been four several opinions
concerning the alienation or other act of a man that is non conipDS ineiUis, etc.
For, first, some are of opinion, tiiat he may avoid his own act by entry or plea.
Secondly, others are of opinion tliat iie may avoiil it by writ, and not by plea.
Thirdly, others, tli;it lie may avoid it citlier by plea or I)y writ; and of this
opinion is Fit/.iierl)ert in his N'atttm lircinum. And Littleton here is of opinion,
tliat neither by i)lea, nor l)y writ, nor otlierwise, he iiimself siiail avoid it, but
his lieir siiall avoid it by entry, plea or writ. And iierewitii tiie y;reatest autliori-
ties of our books ujiree; and so was it resolved with Littleton in Bcverlt/s Caxc,
where it is said, tiiat it is a maxim of tlie common law, tlmt tiie party sliail not
disable himself.'* ' Hy tlie law of EiiLtiand no man sliali avoid his own act by
reason of tliesc defects.'* Blackstone says: ' Tiie king, indeed, on liehalf of an
idiot, may avoid liis grants or other acts. But it hath been said tiiat a non com-
j)os himself .shall not be permitted to allege liis own insanity in order to avoid
sucii grant; for tliat no man sliail l)e allowed to stultify himself or plead his own
disability. Tlie progress of this notion is somewliat curious.' lil.ackstone gives
its history, sliowing that it did not prevail in the time of Edward L ; tliat 'un-
der Edward III. a scruple bt'gaii to arise wliether a man should be permitted to
blemish himself liy pleading Ids own insanity; and afterwards,' it was douiited
wliether a plaintiff wlio had executed a release since tlie commenccmont of his
suit, and who was taken to be sane at its commencement, and at tlie time of
pleading, siionld be permitted to plead an intermediate dci)rivation of reason ex-
isting at tlie execution of tlie release, ' and the (piestion was asked how he came
to rememlier the release if out of his senses when he gave it. Under Henry VI.
tills Avay of reasoning was seriously adopted by tlie juiiges, and fi'oin tliese loose
authorities, wiiieli Fitzlierl)ert does not scruple to reject as being contrary to
re
an
1 Board ni.inc. Woodinan, 17 N. II. 117-150.
= Co. i.ii nc.
■■•■ Co. Lit. 247. b.
* 1 Hale 1'. ( . •:'.).
NO TKST IN NKW IIAMI'SIIIUK.
3i;j
Mr. Just let' Dof's (»i)iniiin.
lit' Kf'iicral
poll llipSd-
licr iillfjrt;,!
her allc^jcil
:it'<l (li|iso.
of incntul
sflvoii; hut
t> 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'<titioii, and reliirious terrorism, he-
fore there was a science of medicine, we sht.uld not expeet to tlud any scientilie
or accurate understanding of such a malady. Well might tlit) boldest shrink
from the exploration of a condition l)elievcd to l>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]<edness ratlier tlian sickness. Anionu:
men of science, tlie investigation of tUc subject is now diseiicuuiliert'd ot all
tlieological complications. IJut this is amoderu emancipation not yet realized
by the mass of even llie most enliu;hte!ied communities. Very few persons have
an adequate conception of the fact that insanity is a disease. The common no-
tion of it, is of soinetliinij; not merely marvellous, but also peculiarly, vaguely,
and indescribably cmnected with a hiuiher or lower world. The insane are gren-
erally considered as more than sick: and if tliey are not spoken of as possrs .cd,
tlieir condition, to the popular apprehension, is still enveloped in a snpernarural
shadow. The Lord Chancellor of England, declared, in tlie House of Lords, on
the 11th day of Marcli, 18(li', that ' the introduction of medical oi)iiiions and medi-
cal theories into this subject, has proceeded upon the vicious principle of con-
sidering insanity as a disease.' ' This remark indicates how slowly legal super-
stitions are worn out, and how dogmatically the highest legal authorities of this
age maintain, at law, tests oi insanity, wliieh are medical theories differing from
those rejected by the same autliorities, only in being the obsolete theories of a
progressive science.
"It was, for a longtime, sujiposed that men, however iii-ane, if they knew
an act to be wrong, could refrain from doing it. But whether that supposition
is correct or not, is a pure (piestion of fact. The siii)positioii is a supi)osition of
fact; in otlier words, a medical supposition, in other words a medical theory.
Whetlier it originated in the nu'dical or any other i)rofession, or in the general
notions of mankind, is immaterial. It is as medical in its nature as the oppo-
■^ite tlieory. Tlie knowledge test in all its foi'ins, and tlie delusion test, are medi-
cal tlieories introduced in immature stages of science, in the dim light of earlier
times, and subsequently, upon more extensive ol)servations and more critical
examinations, repudiated by tlie niedicil profession. But leg.al tril)unals have
claimed these tests as immutable principles of law, and have fancied they were
al)undantly vindicated by a sweei)ing denunciation of medical theories, uncon-
siious that this aggressive defence was aa irresistible assault ui)on their own
position.
" Wlien the authorities of tlie common law began to (U'al witli insanity, they
.adopted the prevailing me<lical theories. The (.listinction between thedut\-of
llie court to decide ((Uestions of law, and the duty of the jury to decide ((uestions
(ffact, was not appreciated and oliserved as it now is in this State. In crim-
ih'il cases, the jury might decide tlie law as well as the fact.- In civil and
<riniinal cases, the court gave' to tlie jury their opinion of tlie facts, as well as
of the law,-' and the difference between a iiuestion of fact and a c|uestion of law
was generally of littleoriio practical importance. When new trials liad not come
into use,' when prisoners were not allowed the assistance of counsel in relation
to matters of fact,' and juries were puni-^licd at the discretion of the court for
tlmliiig their verdict contrary to the direction of the judLre," tlie sphere of the
1 Iliinsard CT.VV. 1200. .V); Quincy, Mass., .5,VS; Ililliunl on .New Tr.,
- I'iorce V. State, 13 X. II. .'i.'ir,; Quincy cli. 1, .sects. 2, S.
Miiss. l.'ep. .V')8-.')72. •' 4 HI. Coin. 3.V); 11 St. Tr. 17(i; I'J .St. Tr,
Aiite,4in,Ul. !»14.
< :; in. Com. 10.-); William r. I.uwis, 1 Wills. '• 4 HI. C'oni. •to.
320
THE LEGAL TEST OF INSANITY .
Notes.
court wiis liilitiuliiuiriaii. The judicial prautice of dlroctinf; or advising juries
in matters of fact lias never been di>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 <iucstious of insanity, the best opinions ■which tlie times afforded.
In this manner, opinions purely medical and pathological in their cliaracter,
relating entirely to (luestions of f and full of error, as medical experts now
testify, passed into booI<s of law, and aciiuired the force of judicial decisions.
Defective medical theories usurped tlie position of common-law principles.
" The usurpation, wlien detected, should cease. Tlie manifest imposture of an
extinct medical tlieory pretending to be le^;al authority cannot appeal for sup-
l)ort to our reason or even to our syini)athy. Tlic proverbial reverence for
precedent does not readily yield; but when it comes to be understood that a
precedent is medicine and not law, the reverence in whicli it is held will, in tlie
course of time, subside.
"Tlie legal profession, in profound ignorance of mental disease, liave a.ssailed
the superintendents of asylums — who ]<iiew all tliat was known on the subject,
and to whom the world owes an incalcuhible debt — as visionary theorists and
sentimental philosophers, ai tempting to overturn settled iirineijiles of law;
whereas, in fact, the legal iirofessiou were invading the iirovince of medicine,
and attempting to install old, exploded medical theories in the place of facts
established in the progress of scientific knowledge. Tlie invading party will
escape from a false i)t)sitiiii wlien it withdraws into its own territoi'y; and the
administration of justice \vill avoid discredit wlien the controversy is thus
brought to an end. Whether the old or tlie new medical theories are correct,
is 11 question of fact for the jury, it is not the business of tlie court to know
whether any of thein are correct. The law docs not change with every advance
of science; nor does it maintain a fantastic consistency by adhering to iiuilicMl
mistakes Avhich science has cotTected. The legal i)rinciple, however much it
may formerly have been obscuri-U by pathological darkness and confusion of law
and fact, is, that a product of mental disease is not a contract, a Avill, or a crime.
It is often dillicnlt to ascertain whether an individual ha ' a mental disease, or
whether an act was the product of that disease, but tliest Uilfieulties arise from
the nature of the facts to lie investigated, and not from tlie law; they are prac-
tical difliculties to lie >..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 ■\lcX<i(ih>r)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)
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,.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<f de e ce
was nisanity. 'icience
Moore, Attorney-General, and Higgins. for tiie State
T'. F Bayard i Wayne Ma.V.igh with him), for the prisoner.
On the tnal, after charging the Jury upon the law, wherea nmn lin.I.
nother rn the act of adultery with his wife, and kills him, (i.uj C'
The other ground of defence relied on l,y the prisoner, is insanity •
an here ore, it is pro^^er I sho.dd also explain to y.... the la!:! ^^
M.iuo.t. Insanity may be either total or partial in its ch-u-uter i
aso it m^,. total and pennanent; or a^l.t.gh tot:^:;^ i.^t .e,^
"u be but tenjpon.ry ,n po.nt of dm-ation. Of course, a person tot- llv
-.1 permanently insane, is incapable of committing a^y e:^^^;:^,
(.'{27)
328
TIIK nUUDKN OF I'KOOl OF INSANITY.
Stale V. Pratt.
ever; because the will and J iiil<5inent of the 111:111, being overborne and
obliterated by tlie nialatl}-, Jiis act cannot justly be considered the vol-
untary act of a free agent, but rather the mere act of the body without
the consent of a directing or controlling mind. .So, too, in regard tc
total, but temporary insanity. If the insanity be such, for the time Ik-
ing, as to utterly overwhelm the reason and conscience, the will ami
judgment, the accused cannot be justly held criminally responsible fur
acts done during the continuance of such temporary insanity.
As I have just intimati '1, there may exist a state of mind called par-
tial insanity, sometimes denominated in tlio law, monomania, or insane
delusion, which delusion consists in a fixed belief in the existence of
certain things purely imaginary, as real facts, when, in truth, they have
no real existence whatever. Insane delusion is that state or condition
of the mind which gives to airy nothing a local habitation and a nanu'.
But in this case, it is insisted that the cause was not imaginary, but that
it was real and substantial.
Now, whether partial insanit}' is of such a character as to exempt
a person from criminal responsibility for wrongful acts, is always a ques-
tion of vital importance ; and its solution must necessarily depend upon
the nature and intensity of the delusion, the force and degree of its con-
trolling power over the will and conscience, and especially, and above
all, whether the act which is charged as constituting the crime, wtis
committed under the direct and irresistible influence of such insanity.
Partial insanity, even when it is clearly shown to exist, is not always oi'
necessarily an excuse for crime. There are many varying shades of it,
many degrees of it. It may becloud the intellect but a very little, or it
may becloud it utterly, in respect to a particular subject. In order to
exempt a person from respo' ")ility for a criminal act, the controlling
power of the insanity, whether arising from delusion or from a real
cause, must be so intense and overwhelniing as utterly to deprive the
[larty of his reason in regard to the act charged as criminal. The
in<iuirv is always, in a case like this, narrowed down to the plain sharp
(juestion of the insanitv of the prisoner at the time, and in respect of the
criminal act charged against him. Was lie at the time, and as touching
that act, sane or insane? The insanity must have specific reference to
the particular act charged as constituting his offence. The question i>
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 <U'lil)crations. You must, therefore, gentlemen,
fully understand and remember throughout all your investigations, that
the prisoner is to be considered by you, to be a sane man, and capable
of committing crime, until his insanity shall be clearly or satisfactorily
osial)lished by tiie evidence ; on this ground you must take your stand,
firmly and sipiarely, if you expect ever to arrive at a just or proper
decision of this case.
In the next place, insanity being luntter of defence, the second great
rule is, that the burden of showing it, lies on the prisoner. It must he
proved as any other fact to the satisfaction of the jury. If the proof
does not arise out of the evidence offered by the Stat«>. 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)orin<i under such a disease of the mind as to render him for the time
being incapable of distinguisiiing between the right and wrong of that
act, you should acquit bin) on the ground of insanity, and should so
return your verdict.
SecoH(V}i. If, however, you shall not l)e satisfied from the evidence
that he was, at the time of committing the act, an insane man, then it
will be your duty to consider, whether he found the deceased in the act
of adultery with his wife and then and there, in the first transport of
passion, instantly inflicted the mortal blow. If you shall be satisfied
from the evidence that the prisoner killed the deceased, Joshua P. Smith,
in -"Uch a position, and under such circumstances, then he is guilty of
man
:i<hj
STATE t*. riJATT.
<>f>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 allege<l as
(•(.nstituting his offence. If it were otherwise, there would be an al)so-
utc immunity from punishment for crime cominittc' under any species
of insane delusion whatever, although such insane delusion might not
in any degree becloud or obliterate the mental capacity of the accused
to distinguish l)etween right and wrong in regard to the particidar crim-
inal act with which he stands chargod. If he is capable at the time of
distinguishing between the right and wrong of that act, if he knows
and understands that that act is wrong, he is responsible. But if he has
not, at the time, a sulHcient degree of reason to distinguish between the
riiiht and wrong of that act, if he does not know and understand that
that act is wrong, he is not responsible. And therefore, although he
maybe laboring under partial insanity, if he still understands the nature
and character of his act and its conse(iuences, if he has a knowdedge
that it is wrong, and mental power sufficient to api)ly that knowledge to
Ills own case, and to know that if he (b)es the act he will do wrong,
such partial insanity is not sulHcient to exempt him from resi)onsibility
for crime. This doctrine has been fully and clearly established by
numerous well-considered decisions, both in England and in this coun-
try. The Inquiry, therefore, in such cases, as you must have already
perceived, must always be brought down to the simple, but sharp, ques-
tion of the sanity or insanity of the accused at the time and in respect
to the criminal act done by him. In this case the criminal act charged
afrainst the prisoner at the bar is the felonious killing of John Barnett
with express malice aforethought. To this charge the prisoner sets U|)
the defence that at the time that he did the 3,et he was an insane man,
and on this ground he claims an acquittal at your hands.
And now, gentlemen of the jury, having made these few remarks
touching the subject of insanity gcnerall3% and in explanation of the
principles of law involved in the proi)er consideration of the question at
issue, I now proceed to state to you briefly those rules and tests by the
li<:htof which, it is your duty as good citizens and sworn jurors to be
guided in investigating and considering the evidence before you, and in
making up the verdict which you shall feel yourselves constrained to
return as the conscientious residt of your deliijcrations. These rules
;534
THE BURDKN OF TKOOF OF INSANITY
State r. Diinhv.
arc l)Ut few in mnnbLT, and are as plain and simple as tlio nature of tin
subject will admit of. Tliey, in fact, sul)8tantially einl»ody all the leaniin-
and all the law on this subject. Whatever difllcnlty or erabarrassnu'iii
you may encounter in your investigations will, I am sure, mainly arise ih
applying the facts before you to the law of the case. I do not know tli;i;
you will have any diffleulty of the kind, but if you should, I feel \vr\
confident that a careful examination and consideration of thetestimoii\ .
coupled with an honest and earnest purpose of mind and heart to ariivt
at the truth, will lead you to a just and >atisfactory 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," aii<l otiier language of similiar import. The simple question for
you to decide, geiitlcmi'ii, is, " Wlietherthe accused at the time of doing
the act was conscious tliat it was an act which he ought not to do?" Jf
he was conscious of this, he cannot be excused on the score of insanity —
he is then amenable to the law, and in that case, if such is your opinion,
from the evidence of the case, you will have to go on to the considera-
tion of the circumstances attending the act, in order to distinguish to
what kind of homicide it belongs according to the law of the land.
. But if it is your opinion that at the time of committing the act, ho
was unconscious that he ought not to do it, or in other words, incapable
of distingnisiiing right from wrong, in a moral point of view, then yon
have notiiiiig furtlier to do, but render a verdict of acquittal on tiie
score of insanity.
And here I am not sure but I miglit safely leave this branch of tiie
subject in your hands without further counnent, for I fear that furtlier
remark might tend rather to confuse, than to assist you. But prolialtly
counsel on both sides expect, and public justice may require, that I
siiould lay down to you what the law is as to what amounts to proof of
insanity, and as to the degree of weight which different kinds of jiroof
should have.
I will remark, then, in the first place, that the law presumes a in:iii
sane until the contrary is proved. Hence, it has been repeatedly decided
lliat the evidence of the prisoner's insanity at the time of the act ouglit
to be clear and satisfactory. If the evidence leaves it only a doubtful
TIURDEN Ol' rUOOF ON rUISONKU.
337
Trior Insanity Insiilllcliiit.
incstioii, tlio iirc'Hiiinption of llic law turns the sciiU; in fiivor of tlic
-iiinity of tlio piiHitnoi'. In hik'U civsi's tin; luw IioIUh tlio prbtjuor rt-spou-
siltU'for his actions.
If it wore doiihtful whether the prisoner (;oniinitte(l the net, tiien the
jury oti;,'lit to Ihul in his favor; for wlien tiie Jury tiiid a reasonaide
unround for doubt wliether the prisoner conunitted tlie iioinieide, they
()U;,flit to acijuit. Tlien the presunn)ti(jn of law is in favor of tiie inno-
rcuce of the party ; every nuui is presumed to be innoeeni until ho is
proved fiuilty.
I5ut when it is admitted, or clearly proved that he committed tlie act,
but it is insisted that he was insane at the time, uhm ine evidence leaves
the (juestion of insanity in doubt ; then the jury oufjfht to lind a<;ainst
Iiim. For tiiere the otla-r presumption arise naiuoly, tli'il every mau
is presumed sane until the contrary is clearly i)rove(l.
I (\o 311 't mean to say the Jury are to consider hiio >ane. if tliere is Mie
least shadow of doubt on the sul)Ject, any more than I would say they
iiuist ac<piit a man wiierc there is the least shadow of doubt as to his
li:i\Mng committed the act. What I mean is, that when the ev i Nmu-o of
sanity on the one side, and of insanity on the other, leaves the scale in
ciliuvl balance, or so nearly poised that the Jury have a reasonable doubt
nf lii3 insanity, then a man is to be considered sane and responsibli; for
wliiit he docs. But if the probal)ility of his being insane at the time is,
from the evidence in the case, very strong, and tliere is but a slight doubt
of it, tlieu the Jury would have a right, and ought to say, that the evi-
dence of his insanity was clear.
The proof of insanity at the time of committing the act ought to be
as clear and satisfactory, in order to accjuit him on the ground of insan-
ity, as the proof of committing the act ought to be in order to lind a
suae man guilty.
In the second place, proof that a man has at some former period of
his life l>een 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, an<l there are all degrees
of insanity; and it is notever}^ kind, nor every degree that will render a
man irresponsible for acts of atrocity. Almost all the books declare
that " in criminal cases, in order to absolve the party from gnilt a higher
degree of insanity must be shown than would l)e sullicient to disciiarge
him from the obligations of his contracts." ^ "In cases of atrocity, the
relation between tiio disease and the act should be apparent." - As I
said before, if the prisoner at the time of committing the act was con-
scious that he ought not to do it, the law holds him responsible, and he
cannot be exculpated on the ground of insanity, although on some sub-
jects he ma}' have been insane at the time. There is manj' a man whose
mind is not right on some subjects, who is nevertheless perfectly him-
self on all other subjects, and who knows as well as j'ou or I what is
right and wrong ; and whether or not he would be doing right or wrong
in lifting up a murderous hand against his neighbor. Several men of this
kind have come under my own observation. One man will think himself
marie of glass, another will imagine himself to be a monarch or a prophet,
or one of the heroes of histor3'', another will be wild in some of his reli-
gious views, and yet each and all will know perfectly well that it would
1)0 wrong to kill a man out of revenge or provocation. Whatever the
insanity of a person may amount to, if he is conscious at the time of
committing an atrocious act, and has reason enough to know that he
ought not to do it, he is guilty in the e^'e of the law. This was so ex-
pressly decided b\' all the judges of England, except one, in a late case
in that country.^ The question was put to them, ''What is the law
respecting alleged crimes committed by persons atllicted with insane de-
lusion in respect of one or more particular subjects 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?" To this question the judges answered as
follows: "Assuming that the question is confined to those persons who
labor under srcli partial delusion only, and ai-e not in other respects
insane, we are of opinion that notwithstanding the part}' accused 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 pro-
ducing some public benefit, he is nevertheless punishable according to
' 2 Greenl. on Ev. , p. 296.
- Lil. Ki.-kine ia Ilndflcld'e Cane, ISOO:
Cooper's Tracts on Med. Juris., p. 318.
» McXaghten's Case, 2 Greenl. on Ev.
301, note.
340
THE BURDEN OF PROOF OF INSANITY.
State V. Spencer.
the nature of the crime committed, if he knew at the time of committing
such crime, that lie was acting contrary to law." In the same case the
Judges also expressed themselves of opinion, that where a man commits
an act, criminal in its nature, who laboi's under any particular delusion,
as that every dog he sees in the street is mad, or any other particular
delusion, his act as to criminality is to be judged of as if the thing ho
imagines to be true Avere really so. If a man is under the delusion that
I am going to take his life, he would be exculpated in taking iny life.
Hut if he acted only under the delusion that I was going to carry off his
pi'opcrty or pick his iiocket, he would not be exculpated for taking my
life, for those facts, if true, would be no justification of his act, unless
he was also under the insane delusion that he had a right to take my life
for such an act. So you see, gentlemen, that although a man may he
partially insane, the law does not exculpate him any further than the
extent of his insanity. And the whole matter may be summed up in
this : If the evidence makes it dear to your minds, beyond a reasonable
doubt, that the prisoner, at the time of the act, was unconscious that he
ought not to do it, he is to be acquitted ; but if not, then he cannot be
acquitted on the ground of insanity, whether he was partially insane or
not.
It may be thought by some persons that this is a hard law, from the
possibility that some, who ought not to be held accountable for what
they do, may lie involved in tl«e punishment due only to sane and con-
scious criminals. But such persons should reflect on the object of pun-
ishment. The object of legal punishment is principally to prevent crime
and preserve the peace of societ3\ This is to be effected so far as pos-
sible without injustice to any. But human laws are imperfect —
human knowledge is imperfect ; and if the law is to be administered
upon such rules only as would render it an impossibility that any one
should be improperly condemned, or that error or injustice should ever
be done, then the administration of justice would be so impracticable
that our courts, both civil and criminal, might as well be closed. Crim-
inals would constantly escape merited punishment, and the injured par-
ties, or the friends of the murdered, seeing the inefficiency of the law,
would take the law into their own hands. This state of things has been
exemplilied to a considerable degree already in our own countr}^ and I
pray I may never see the day when it shall be exemplified in this State.
We must administer the laws with firmness, however much we may in our
hearts pity the culprit ; and we are bound to be jealous of those de-
fences, which call for the exculpation of the offender, when the crimi-
nal act is clearly proved upon him. Otherwise, we shall have no security
DEFENCE OF IXSAXITY NOT FAVOllED.
341
rassioii is Not Insaiiltv,
for our lives, or the lives of our families. Tliese considerations lie; at
the foundafion of the law of insanit}', as I have expounded it to you,
gentlemen, in relation to excusing a man from the conscqut-nccs of his
own atrocious acts. The law is stringent and suspicious, and it has to
be so. If it were not so, we should be ©verrun with crimes and atroci-
ties committed under the plea of insanitj', or of some insane di-lusiou.
This is all that is meant when it is said that insanity is a aefence not
favored in the law. It is not intended, and God and humanity forbid it
ever should be, that courts sliould frown upon insanity as a defence, or
that if a jury are satisfied beyond a reasonable doubt that tlie act com-
plained of was committed wiien the accused was insane, they should for
one moment hesitate in pronouncing a verdict of acquittal, but is in-
tended that they should see to it, that the defence is fully sustained by
the evidence.
As germane to these remarks, it is also my duty to remind 3'ou,
gentleman, that outbursts of ungovernable passion do not excuse a man
for any acts of atrocity he may commit under their intluence ; on the
contrary they rather aggravate his guilt. Men are hound to control
their passions ; and if they suffer them to run away with their reason anil
senses, they ought to suffer for it. One of the very objects of having
laws to govern us, is to protect us from the fmy of ungovernable pas-
sion — whether that be anger, hate, envy, jealousy, or any other of the
malignant passions, a man is equally culpable for suffering himself to
be goaded on by any of them to the conunissiou of crimes at which
humanity shudders. There are cases, it is ti'ue, where long and fre-
quent indulgence in violent passions has destro3'ed the balance of the
mental powers, completely dethroned the reason, and terminated in con-
firmed insanity. Then, of course, the man is no longer accountable.
He is then only fit for the asylum or the mad-house.
Fourthly. Having enlarged thus much on this difficult subject, it
seems proper that I should add a few observations on the nature and
weight of the evidence which is up. tally adduced to prove insanity.
The man who commits a heinous offeticc against God and man, is un-
doubtedl}'' very unwise. The Sacred Volume calls him a fool ; and in
one sense, he is a imidman. He madly gives way to the instigations of
tie evil one, or of his own evil lieart. littt this is not the kind of mad-
ness that is to excuse a man from the punishment due to his crimes.
If it were, there would be no such thing as crime, every act of crime
would only be proof of the insanity of the perpetrator ; and the greater
the crime, the stn^nger the proof. When people say a man must have
been crazy to have committed such an ^ot, they must be utiderstood as
342
Tin: m'RDKX of pkoof of insanity.
SUto V. Spencer.
speaking figuratively. It is too unhappily true, that man, conscious,
sensible, reasoning man, is often found prostituting his nature so low,
as to l»e guilty of crimes of the deepest dye.
I cannot yield to the doctrine whit-h has been suggested, founded
upon what is called moral insanity. Every man, however learned and
intellectual, who, regardless of the laws of God and man, is guilty of
murder, or other high and disgraceful crimes, is most emphatically
morally insane. Such doctrine would inevitably lead to the most per-
nicious consequences, and it would very soon come to be a question for
the jury, whether the enormity of the act was not in itself suflicieiil
evidence of moral insanity, and then, the more horrible the act, the
greater would be the evidence of such insanity. On the contrary, in
my judgment, the true question to be put to the jury is, whether the
prisoner was insane at the time of committing the act ; and in answer
to that question, there is little danger of a jurN^'s giving a negative
answer, and convicting a prisoner, who is proved to be insane on the
subject-matter relating to or connected Avith the criminal act, or pi'ov((l
to be so far and so generally deranged as to render it difficult, or almost
impossible to discriminate between his sane or his insane acts.
I mean no disrespect to the learned writers on medical jurisprudence
or other distinguished men of the medical pi-ofession. On the contrary.
I consider the administrators of criminal law greatly indebted to them
for the results of their valuable experience, and professional discussions
on the subject of insanity ; and I believe those judges who carefully
study the medical writers and i)ay the most respectful, but discriminat-
ing attention to their scientific researches on the subject, will seldom,
if ever, submit a case to a jury in such a way as to hazard the convic-
tion of a deranged man.
These remarks, and all I have said, calculated to caution you against
confounding mere outbreaks of passion, or mere acts of depravity, with
that sort of insanity which excuses from punisliment, you are n( t to
regard as the expression or an opinion on the part of the court, that the
act of homicide committed by the prisoner, was an act of criminal
passion or revenge, or that it was an act of insanity. This is the very
question you are to decide, and which it is my desire to submit to your
decision uninfluenced by any opinion of mine.
The evidence of insanity upon which a jury should rest, will vary
with every case; but generally speaking, the evidence of those who saw
the person accused every day immediately previous to the commission
of the act, who were intimate with him, talked with him, ate and drank
with him. and who testify to hisacts, his words, his conversation, hislooks,
I)
h!
OPINIONS OF WITNESSES.
343
Absence of Motive for Criiin'.
his whole deportment, is that on which a Jury ought to place the greatest
reliance, the evidence of competent medical men, who have had frequent
()[)portunities of observing him about the time in question, especially if
llicy have been in attendance upon, or have visited him with a view to
probe the state of his mind, is entitled to very great consideration. It
lias always been held that medical men may give their opinions in evi-
dence. These are alwa^'s valuable, and more or less so according to
their opportunities of observing the accused at, or about the time of the
!iet complained of. But if they have not been in the hal)it of seeing
him, if they were not familiar with his habits and symptoms, at or about
tlie time in question, their opinions in relation to the particular indi-
vidual, are of no more weight, and in my judgment, of not so much
weight, as those of unprofessional persons of good sense, who have had
ample opportunities for observation.
One strong circumstance generally attending the commission of acts
of violence by persons who are really insane is, the absence of any
iipparent motive. It is not unfrequently their best friends, those who
iu-e most kind and attentive to them, who are the victims of their un-
conscious and destructive violence. I do not say that this absence of
apparent motive invariably exists in the cases of homicide and other
atrocious acts committed by insane persons ; but I say that it is gener-
ally the case. Hence, if we witness the perpetration of such an act
without any apparent motive or object, but against every motive
which would appear to be . naturally influential with the person
committing it, we are s,t once awake to the inquiry, whether he was in
ills sound mind, and if we can lay hold of any sufficient evidence that
lie was not so, this absence of apparent motive confirms us in the belief
that he was insane.
But where the evidence of the case shows that there were strong
motives of anger, jealousy, or hate to actuate the accused, such motives
as might naturally induce a man of depraved and wicked heart, and
violent and ungovernable passions, to perpetrate the crime of which he
stands accused, we cease to look for other causes of the deed committed,
and naturally attribute it to those which so glaringly present themselves.
We, at once, unless the evidence of his being actually insane is forced
upon us, attribute it to his own wicked nature and the unholy indul-
gence of his ungovernable passions. This process of our minds is
natural, and is founded in the truth and reason of things. You ought
to inquire, therefore, gentlemen, whether in the case before you, the
prisoner at the bar committed the act charged .upon him as a crime, in
the ubbeuce of any such motive as would naturally iullueuce the mind
344
THE BUKDEN or TROOF OF INSANITY.
State V. Spencer.
of a (lepnivod man to the commission of acts of violence. If no siieli
motive existed, that circumstance will add j^roat strength to the proof
of his insanity; but if, on the other hand he was assailed by stroni:
motives of revenge, or otlier passions, you have a right to infer that it
was under the influence of these motives that he committed the (1ee<l.
and not luider the influence of insanity, unless the proof of actual in-
sanity at the time is clear and convincing to j-our minds.
I will take notice of one more consideration which it is proper for the
jury to regard in making up their verdict in this case. It is this: It is
undoubted law that when a man is proved to have been once insane,
the presumption is that he continues so until the contrary is shown.
If I have left a relative in England who Avas then aftiicted with insanity,
and I have not since heard from him, the presumption is that he is still
insane. True, he may have recovered ; and since the humane methods
with which the disease is now treated have become general in civil-
ized countries, the probability of recovery from mental 'erangement is
greatly increased. Still, the presumption of law rem lins the same.
The presumption is that my aftiicted relative is in the same condition
he was when I left him. But if I learn that he has recovered, or that
he has sane intervals, and is sufficiently restored to attend to his
business, then the aspect of things is changed ; there is no longer any
presumption that he is still insane. So, in the case in hand, if the
prisoner has proven that he was once insane, the ])resumption arises
that he is still insane at this moment, luiless the contrary be shown.
The evidence on this subject is all before you, gentlemen, and the
prisoner is hims(?lf before you, and if you have no evidence of lucid
Intervals since the time of the insanity proved, you must, of course,
find him still insane, and insane at the time of committing the act in
question. But if the prosecution has succeeded in showing that sinci'
the period of insanity (if any) proved by the prisoner hi) '■ s ' ccn
himself conscious of right and Avrong, and every way a ' -..si bit'
man, the presumption of insanity is done away.
This, gentlemen, is all that 1 deem it my duty to say to ^ , a on the
question of insanity as a defence. In doing this it has been my object
and design to give you, in the abstract and without reference to the
evidence and the circumstances of this particular case, the law upon
the subject of insanity when set up as a defence, both as respects tiic
extent and character of that sort or degree of insanit}' which is required
to constitute a defence, and of the evidence by which it may be estab-
lished. And I hope I may not be understood by j'^ou as having, by
any thing I have said, in the slightest degiee indicated any opinion that
WHEN' IX8AMTV MAV HK IN'rKIJIiED.
345
I)i-cl:iratioiis of I)cce;isi'd Irivk'vaiit.
tlu' prisoner has failed to eslablisli siieh insanitv ut the time of oom-
mitting the homicide, as ouglit, upon the soundi-st rules of hiw and in
accordance with the dictates of our common humanity, to exempt iiim
from the penalty due to crime, when committed by rational and account-
able beings ; nor, on the other hand, is it my intention to express any
oi)inion that the defence has been sustained. The qut'stion of the
prisoner's sanity or insanity at the time of committing the act charged,
is appropriately and exclusively within the prcnince of the jury. It
will be sufHcient for the court to call the attention of the jury to such
evidence on the part of the prisoner as lays any foundation for a belief
that he was insane at the time of the homicide. I have said that
insanity is not to be inferred, but to be proved. By this, however, I
did not mean that such acts and conduct as established insanity can
only be proved by witnesses who saw him at or about the time of the
commission of the fatal deed. On the contrary, the jury may be con-
vinced that he was then insane and unconscious of doing wrong, from
evidence of prior insanity, or s' ong symptoms of insanity, or of an
evident predisi)osition to it ; or from proof of a peculiar tciiiperament
of mind, and of nervous excitability in the early ami continued history
of his life, or in his former partial aberrations of mind upon certain
topics, such as temperance, politics, or mesmerism ; if they are sat-
isfied that the unhappy circumstances in which he was placed in regard
to his wife, the grounds he had for ])elieving her unfaithful, and tlu-.
cruel treatment he received, or believed he received, from her mother
and brother, and the attempt to drive him from her, that Richardson
or some one else might occupy his place, had produced such an effect
on his already shattered intellect as to dethrone the little remains of
reason he possessed, and leave him unconscious of the wickedness
of the act he was perpetrating. And this will present to you the true
question in the case, which, in the language of Lord Chief Justice
Dexm.vn, in the case of Oxford,^ is, " whether the evidence given pi-oves
a disease in the mind, — as of a person quite incapable of distinguishing
right from wrong ; whether the prisoner was laljoring 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 under the influence of a diseased mind, and was
really unconscious, at the time he was committing the act, that it was
a crime."
The expressions of the deceased are irrelevant to the issue in this
cause. If she were a party to the suit ; if she were the accuser of this
1 9C. & 1'. .V25.
34«)
THE BURDEN OF PROOF OF INSANITY.
State V. Marler.
mail, and it was a matter entirely between themselves, then her expres-
sions — tlie W(jrcls slie raaj liave uttered — would be admissible against
her. But on this issue, l)etween the State of New Jersey and the pris-
oner at the bar, wliat she had said or admitted should have no mow
weight than what any other person may have said. It has been testi-
fied tliat she declared the prisoner insane. This is no proof that lii'
was so. She may have said this for the sake of her own character iiiid
credit, or she may have said it from other interested motives. What
she said is not to be the rule to guide us here. Nothing but the proof
of what the fact was, can or ought to have any weight with the jury.
Tlie evidence is before you, and it is your peculiar province to judge
of its weight and the results to whicli it ler.ds. If, in your opinion, it
is clearly proved tliat the piisoner at the bar, at the time of the h(jini-
cide, was unconscious that what he did was wrong and that he ouglit
not to do it, you must acquit him on the ground of insanity ; but if, in
your opinion, this is not clearly established beyond a reasonable doubt,
tnen you must lind him guilty of the act, and proceed to investigate
the i.atui-e of the homicide.
In \iew of my accountability to Ilim, before whom judges must l)c
judged, wiio knoweth the secrets of all hearts, and who cannot be
deceivec', I have most conscientiously declared to you the law upon
the subject of insanity, when set up as an excuse for acts which, if
committed by sane persons, would subject them to severe or capital
punishment. I doui^t not, gentlemen, the same high and holy motives
will influence your decision ; the same anxious desire to redeem the
solemn pledges 3'ou luwe given will agitate your bosoms while you are
making up your verdict.
CI
BURDEN OF PROOF — KEASONABLE DOUBT OF GUILT
State v. Marler.
[2 Ala. 43; 36 Am. Dec. 398.]
In the Supreme Court of Alabama, January, 1841.
Insanity, when set up as a defence to a crime, must be shown by clear and convincing
l)roof ; but if llio jury entertain a reasonable doubt of the prisoner's sanity, they should
acquit.
Kkkok to the Circuit Court of Montgomery County.
The prisoner was indicted, tried, and found guilty of murder, his do-
fence being insanity. The presiding judge referred to the Supreme
BURDEX OF rUOOF.
347
lusanity Must be Clearly Proved.
er ex[)ro,s-
le agjiiiisi
I the pris-
5 no iiioic
>een 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 ri<?ht and wron<?; tliat, in fact, it must bo [)roved beyond nil
doubt tiuit, at tiic time hi* coininilted the act, he did not consider tii:il
murder was a crime a<jainst th»' hiws of ( Jod and natJirc, and tliat tiicrc
was nootlier proof of insanity wiiich would excuse murder or any other
crime."
These opinions, wiiich are nudoul)ted hiw, sliow the strinjjjent nature
of the evidence by wliidi insanity nnist bo proved to be an excuse for
crime ; but wo do not understand that even this defence must bo estali-
lished by evidence so conclusive in its nature a.-, to exchido every otiier
hypotlu'sis. Tliis would bo rccpiirinu; somethinjjf akin to inathematiciil
proof, of which the subject is clearly not susceptible ; Ijut that the jury
must be fully satisfied that the evidence is made out beyond the reason-
able doubt of a well ordered mind. To test the case at bar by these
principles, the court was moved to char<ro the jury "that if they enter-
tained any reasonable doubt as to the sanity of the prisoner, they must
acquit bim ; " which char<i;o the court refused. I'pon the principles
here laid down it was error to refuse this cliarge. If the prisoner w:is
insane, ho was not an accountable beinjx; au<l can the public justice ot
the country repose with safety upon a verdict foiuid l)y a jnry, every
member of which may have entertained a reasonable doubt of its pro-
priety? It would have been highly proper that the court, when calleil
on thus to charge, should have explained to the jury that this defenci'
reciuired to be made out by strong, clear, and convincing proof, and
guided by these considerations, if they still entertain a reasonable doubt
of the sanit}' of the prisoner, it was their duty to acquit.
The charge which was given by the court does nf)t appear to be ol)-
jcctionable, but as it is probable the jury were mislead b}' tlio refiisal to
give the charge asked for, the judgment must be reversed, the cause
remanded, and the prisoner directed to remain in custody to await :i
trial (le novo; unless, in the interim, he shall be discharged by due
course of law.
CoLLiEH, C. J. I concur in the reversal of the judgment of the Cir-
cuit Court, but as I do not entirely assent to the opinion of my brother
Okmon'd, I deem it proper briefly to declare my views upon the only
point of difference between us. The charge as prayed in regard to the
prisoner's insanity should, in my judgment, have been refused. It
supposed that the jury wouUl l)e bound to acquit, if they entertained a
real
will
ollt
istil
WIIH
.Icrl
tlKll
11
jiu-'
to
ami
i;ui
!i r(
so
pris
IN8ANITY MUST UK I'KOVKI) IJKYOND ItKASONAIlLK DOIMT. 'MO
Stiite V. Hriiiyca.
II roferi'iicc
at in order
»*t (li.stiiic)
of jl|(|<ri||M
IhmoikI all
iHiilcr tliMl
tllMt thflV
»iiy otlu>i
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; aM<er wJiere the
insanity is the same as has been passed on by the jury.
3. The opinions of ordinary witnesses as to a person's sanity are inadmissible.
Eruou to the Circuit Court of Montgomery County.
This cause is presented on questions reserved for the opinion of this
court, as novel and difficult.
350
THE ISUUDEN OF PHOOF OF INSANITY.
Slati- I'. Itriiiycii.
On the trial tbc prisoner ix'lied on tlic defence of insanity, and intro-
duced witiu'.s>t'.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<iuittal.
From the Circuit Court of Talladega.
Tried before the Hon. John IIkxueijson.
The prisoner in tliis case, George Boswell, was indicted for the murder
of Eliza Embry, by stabbing her Avith a knife ; was tried on issue joined
on the plea of not guilty ; found guilty of murder in the first degree,
and sentenced to be hanged. The prisoner was a mulatto man, whoso
wife had been dead five or six years, leaving several children living villi
him, the oldest being a boy about fifteen years old ; and Eliza Embry
if the jiirv
lid be con-
liarge thai
iry should
Jscurily or
;lie proper
icy to iiiis-
n Marler's
ijt'-med.
— SLEEP-
79.
of insanity
erson from
JClieved in
ntal sanity,
e doubt of
murdor
e joiiiod
degree.
1, whoso
ing with
Embi'v
B08WELL V. STATE.
853
Facts of the Case.
was a young mulatto woman, whom he had been courting, and who, as
he claimed, had i)roinised to marry him, but married another man,
Wesley Embry by name. The murder was committed on the second of
Feoruary, 1878, about the middle of the da}', on the public square in
Tnlledcga, a few minutes after the said Eliza and Wesley Embrcy had
liet'u married by the probate judge in his offlci;. The circumstances
iiiuncdiatt'ly preceding the commission of the crime were thus stated by
the probate judge, who was examined as a witness for the prosecution:
•On the second of February, 1878, between one and two o'clock, p.
M., Avhile I was preparing a marriage hcense for Wesley Embry and
Kliza Truss, the defendant came into my office, and asked me, ' if a girl
could obtain a license to marry another man after having promised to
marry him?' I told him ' yes ; that she had the right to change her
mind,' and he then left the room. After I had married Wesley and
Kliza, and Wesley had gone out, the defendant returned and sat down
close to Eliza, and hold some conversation with her, none of which I
iiiulorstood. The south door of the room was opened by some one (Mr.
Ilamill, I think), and Eliza, rather hastily, moved her chair from near
tlio defendant to a point near me, and sat down. About this time Wes-
ley returned to the room, and proposed to Eliza that they go home.
She immediately got up and gathered up some bundles and wraps, and
the three left the room, Wesley going in front, P^liza next, and oue de-
fendant last. In a very short time I heard screams in the court-yard,
and, looking out of the window, saw the defendant have Eliza pushed
l)ack against the bell-tower, with one arm around her, and striking her
with the other ; and I s.. ., Eliza get loose from him and run away. I
ran to the west door of the room, and just after I stepped out of it, the
defendant walked up to me and said : " Judge, I done it. She promised'
to marry me, and has gone back on me." (Or, as afterwards stated by
the witness: " Judge, I done it, and if I have got to hang, let me hang,
Shi' promise I to marry me, and has married another fellow ; she has gone
hiviTc on me."') The deceased ran several steps, and fell, and died in a
fi'w minutes, her throat being cut, and eight other wounds with a knife
being inflicted on her person.'
Another witness for the prosecution who saw the slabbing, testified
tlnit he was standing on the stops of the court-house when the parties
came out of the probate judge's office, and thus proceeded: " I heard
(icorge (the prisoner) say, ' Wesley, you go on ; I've got something to
toll Liza.' Wesley went on, cowards the fence beyond the bell-tower;
ami George then said, 'Liza, you've gone back on me.' She said,
'(ieorge, 1 didn't love you well enough to marry you.' By this time
23
354
THE BUKDEN OF PlvOOF OF INSANITY.
Boswell V. State.
thcv were opposite the bell-tower, and Wesley whs outside of the fenco,
at his biig;;^y. George seized EUza, and stabbed her three or four
times. 81ie screamed and jerked awny from him, and ran towards the
east side of the square ; and he walked back towards the west door of
the court-house and gave himself up to Ju<lge Thornton. Thestablnug
was done in plain view of a large number of people. George was not
excited, and did not look like he had been drinking. He did not try
to get awi»y, but went quietly to Judge Tiiornton, and gave himself up."
Anoiher witness for the prosecution testified, that about one o'clock in
the afternoon of that day, the defendant came into his store, where
guns, pistols, and knives were kept for sale, and bought a knife with two
blades, the larger one being from three to three and a half inches long.
"■ saying that he wanted a keen, sharp knife that would cut leather."
The mother of the deceased testilicd, among other things, that the pris-
oner came to her house one night, in December preceding the killing,
and she heard him ask Eliza to marry him ; and that, on her refus:il.
she lieard him say: " My God, woman, where is your heart? If you
marry anj'bod}'' but me, I'll cut your throat, and cut my own throat.
and send my soul to hell." Another witness for the prosecution testi-
fied that he met tlie defendant one morning in December, coming from
the direction of the house where the deceased was living Avith her father
and mother ; that the defendant stopped him, and, during their conver-
sation, said: " I am afraid they are going to pull back on me down
there; and if they do, it will break my heart, and I will kill." Tho
sheriff of the county who was introduced as a witness for the defence,
testified that when he arrested the defendant, immediately after tho
killing, he took from him a pistol with five barrels, all loaded, a knifo
•with two blades, the larger one being bloody and slightly bent, sonio
papers and money, and two pint bottles of whiskey, one of which w;i8
full and the other about one-third full.
Insanity was set up as a defence. Several witnesses testified to the
intimate relations which existed between the deceased and the prisoner,
for some time previous to the killing, the messages which were sent W-
tween them, the presents which he had given to her, and tiie preparations
he had made, and was making for his approaching marriage wifh her,
which, as he said, was to take place in a short time. Several exceptions
were reserved by the defendant to the rulings of the court in excludiiiii
portions of this evidence, but, as the case is here presented, they re-
quire no particular notice. Charley Boswell was introduced as a wit-
ness by the defendant and testified as follows: " I am a son of tlic
defendant. INFy mother has btcn dcnd five or six years. I have a sister
I
and 1
last I
Jatnl
my
raosi
hua
moss
BOSWKLL V. STATE.
3')')
Evidence in the Case.
the fence,
je or four
)wards the
ist door of
iestal)l)iiiif
ge was not
d not try
nself u\>."
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'erturiiiii<r
J measure
ontraricty
,lie British
tain qiies-
orcl Chief
:e Maim;.
opoundt'd
)y persons
-'ular suli-
>mmissioii
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
il<l justify
ersons.
v(\ before
.'Ottenluiiii
lie judges.
)iiit, said:
ntioii and
to them."
declared,
itially as
or cases a
anity \vas
? to take
eptionto
elebrated
)ut ill 1
and the
ad been
lat, both
nounced
red that
rs of an
ludience
3st, and
on, and
able for
chestra
HI the pit, and he took a delilierate aim by looking down the barrel, as
a man usually does when taking aim. On his apprehension, amongst
other expressions, lie said that he knew perfectly well tliat his life was
forfeited; that he was tired of life, and regretted nothing but tlie fate
of a woman who was his wife, and would be his wil'e a few days longer,
he supposed. These words he spoke calmly, and witliout any a[)i>arent
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 <iiily in the eleurcHt csisos. It ouylit to 1)0 hIiowm to
liave boon habitual, or at least to have evinced itself in more than a
siiirrle instanee. Tlie fretiueney of this constitutional niahuly is fortu-
iiiitely small ; and it is better to conline it within the strietest limits.
If juries were to allow it as a general motive, operatinjr in cases of
this character, its recognition would destroy social order as well
as personal safety. To establish it as a justillcation in any par-
ticular case, it is necessary to show by clear pioof, either its con-
toniporaneous existence evinced by present circumstanci's, or the
existence of an habitual teridency developed in previous cases
liecoming in itself a second nature." What is meant by "evinc-
ing itself in more than a single instance," and how this jirinciple would
work in administration, we are left to speculate. Can that lie a sound
legal principle, whose general recognition would destroy social order, as
well as personal safety? AVe concur with INIr. Wharton,* that moral in-
sanity, which consists of irresistible imi)ulsc, co-existing with mental
sanity, " has no supi)ort either in psychology or law."
On the question of the duty and mei»surc of proof on (luestions of
insanity, as a defence in a criminal trial, some rulings have been made
in this court. In State v. 3farler,- (a case of murder) the Circuit
Court had charged the jury, if the facts necessary to constitute the
crime of murder had been established by the proof, that it devolved upon
the prisoner to prove his insanity at the time of the commission of the
act, and if the jury, from the evidence, entertained a reasonable doubt
of the prisoner's insanity at the time of the commission of the act, and
believed also that it would 1)e murder in him, it would 1)e their duty to
Inid him guilty of murder." The court had been requested to instruct
the jury that a reasonable doubt of the sanity of the prisoner required
his acquittal. This court (OiniOND, J.) quoted from the language of
Maxsp'ield, C. J., in BellingJiam's Cane, as follows: " That in order to
support such a defence it ought to be proved by the most distinct and
unquestionable evidence that the prisoner was incapable of judging be-
tween right and wrong; that, in fact, it must be proved beyond all
iloubt that, at the time he committed the act, ho 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 would excuse murder or any other
crime." Judge Oujiond added : " These opinions which are undoubted
law, show the sti'ingent nature of the evidence by which insanity must
be proved, to be an excuse for crime ; but we do not understand that
' Horn., sect. 574.
•2 Ala. 4:!.
3()«)
THE BURDEN OF I'KOOF OF INSANITY
Boswell r. Stuto.
even this defence must be establislied by evidence so conclusive in it-.
nature as to exclude every other liyr-othesis. This would be requiriuji;
somethin<:f akin to matliematical proof, of which the subject is clearly
not susci'ptible ; but the jur}' must be fully satisfied that the defence is
made out bej'ond the reasonable doubt of a well-ordered mind. To test
the case at bar by these principles the court was moved to charge tlu'
jur}-, ' that if they entertained any reasonable doubt as to the sanity of
the prisoner, the3' nuist acquit him ; ' which charge the court refused.
Upon the principles here laid down, it was error to refuse this
charge. * * * it w'ouM have been highly proper that the court.
when called on thus to clun-ge, should have explained to the jury that
this defence was reipiirod to be made out by strong, clear, and convinc-
ing proof; and, guided by these considerations, if they still entertain a
reasonable doubt of the sanity of the prisoner, it was their duty to
acquit."
We confess ourselves unable to reconcile the two propositions of tliis
charge. Under the one the defence of insanity is required to be made
out by strong, clear, and convincing proof ; under the other the evi-
dence is sufficient if it generates a reasonable doubt. If reasonable
doubt of the existence of a fact is equivalent to strong, clear and con-
vincing i)roof of its existence, then the charge can be reconciled and
understood. "With every respect for the able jurist by whom tiiis opin-
ion was delivered, we fdTar its tendency would be to confuse and mi.s-
lead the jury. C. J. Collieu dissented, saying : "A reasonable doubt
whether the accused was sane would not authorize his acquittal. There
must be a preponderance of proof to show insanity, to authorize a ver-
dict of not gi^ilty for that cause."
In the case of State v. Briny ea^^ the same judges presiding, on
the question of insanity as a defence, the Circuit Court had charged
the jury that the prisoner was bound to make out by testimony, beyond
1 reasonable doubt, that he was insane at the time the act was coni-
ixjitted, by proof clear, strong, and convincing ; and if, upon the testi-
mony, the jury should entertain no reasonable doubt of the defendant's
sanity, they should find him guilty." It will be observed that in this
case, the rule laid do"wn by the Circuit Court as to the measure of proof
of insanity required of the prisoner, was that it should be shown beyond
all reasoriable doubt ; and as to this, the court added : "If the jury enter-
tained no rea3onaV)le doubt of the prisoner's sanity, they should find
him guilt}'." This court, in commenting on this charge, said: "The
1 5 Al;i. 241.
KURDEX OF I'UOOF.
367
Tliu Aliil);iiiia fuses Keviewed.
objection to the charge cannot avail the in-isoniT. as it is in strict accord-
ance with tlie rule declared in 3Iarlei'\s Case. * * * xi,e prisoner
then was bound to make out -by testimony, beyond all reasonable
doubt, that he was insane at the time the act was committed, hy proof
strong, c.ear and convincing. * * * The charge, it is true, is in
tlie negative, —that if the jury had no reasonal)le doubt of the sanity
of the prisoner he should be convicted. This, as it seems to us, is
precisely equivalent to a charge that, if a reasonalile doui)t of his sanity
was entertained, the jury should acquit." This charge, then, as con-
strued by this court, and its correctness affirmed, reasserts the two
propositions, which, we have said above, we cannot reconcile. It goes
even further, f.nd affirms that insanity, as a defence, must be proved
beyond a reasonable doubt ; and then adds, if the testimony generates
a doubt of its existence, "this is sufficient." Rules of law ought not
to be so declared as to leave the mind bewildered in their attempted
solution. Instructions to juries should l)e clear and freed from am-
biguit}-.
In McAllister v. State,- this court (Ch. J. Dargan delivering the
opinion) said : " When the i)lea 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 country. If he knew right from
wrong, and knew that he was violating the law, he is then guilty; for
it is this conscious knowledge, connected with the act, that consti-
tutes the crime." We feel at liberty to affirm that the question of the
measure of proof, on the defence of insanity, is not settled in this
court.
Much has been written, and there is m.uch hypercriticism in the dis-
cussion of the propositions, that, in criminal prosecutions, the onus is
never shifted, and that the presumption of innocence accompanies the
prisoner through all the stages of his trial. These are valuable canons
of the law, but, like most other general rules, are subject to some modi-
fications in their application, the observance of which is essential to the
good order d well-being of society. Murder, at common law, is
made up of two ingredients, —the act and the intent. All men are
presumed to intend the natural result of their voluntary acts. The
voluntary employment of a deadly weapon, h ing in wait, the admin-
17 Ala. i:n.
3f)8
THE liL'HUEX OF PUOOF OK INSAMTV.
Boswel! V. State.
istration of poison, each supplies tlic presumption whicli, unexplained,
is proof of the intent or malice aforethought ■which stamps the homicide
as murder. Proof of the killing arid the manner of it accomplishes
the purpose of establishing the factum or act, and the felonious intent
or formed design with which it is done, unless, in the testimony which
proves the act, or in some otlier proof, the offence is extenuated or
excused. The common-law definition of murder declares that tlic
malice which characterizes its bad eminence may be implied as well as
expressed. So, one fijund in possession of goods, proven to have boon
recently stolen, is presumed to be the thief, until explanation of his
possession is given. Many statutes which create offences out of cer-
tain acts, unless certain conditions exist, cast on the accused the duty
of excusing himself by proof of the required conditions. In this class
are the offences of carrying deadly weapons concealed about the person,
and retailing spirituous liquors without license. So, then, there aro
cases in the law whore one material element of a crime is inferred from
the proof which establishes the other, if there be before the jury only
the testimony which establishes tliat other fact. We imagine, also,
there is a distinction and a difference between the constituent facts
which make up a given crime, — nuu-der, for example, — and which
facts are common to every case within the class, and those occasional
or exceptional questions of fact which do not necessarily belong to the
class, but may be termed the accidents of tlie case. That a reasonable
creature in being was killed ; that the prisoner on trial was the agent or
manslayer, and that he did the act with malice aforethought, express
or implied, are facts necessary to be shown in every successful prose-
cution for murder. To this extent, and to each of these constituent,
indispensable elements, the burden rests with the State to prove tlieir
existence lieyond a reasonable doubt. The presumption of innocence,
in which all men are primarily panoplied, follows and guards them
through all the stages of the trial, until these uniformly constituent
facts are established. The law, in its firm, yet conservative morality,
declares that all men who have attained to years of discretion are
presumed to be of sound mind ; and without any proof of that fact,
resting securely in the presumption of sanity, it adjudges the offender
shall suffer its penalties. But there are persons of mature years whose
minds are so diseased as that they are incapable of discriminatini;
between right and wrong ; and this defence is set tip in avoidaiue
of the facts which otherwise stamp tlie prisoner as a murderer. We
here enter the field of the exceptional, the accidental ; and inasmudi
hi
th<
h(
iuH
Cc
nil
BUKDEX OF PROOF.
3()1'
The Authorilli's Keviewed.
jxplained.
homici(k'
omplislios
jua intent
)ny which
nuated or
that the
as well as
have been
on of his
lit of cor-
1 the duty
this class
le person,
there aie
rred from
jury only
^ine, also,
ent facts
nd which
>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<j
wrong.
Jn MassaciujHctts, on the trial of Boffcrs for murder, tlie plea of in-
sanity was set up. It was held by the Supreme Court that insanil ' "'ii^
in the nature of confession and avoidance, nuist be satisfactorily ^wn
to entitle the jury to aeipiit on that ground.-
In New Jersey it was hohlen by tlie Supreme Court in Spencer's Cc.s*
'' that the evidence of the prisoner's insanity at tlie time of the ai i
ougiit to be clear and satisfactory," and tlie chief justice, in deliveriiii;
the opinion of court, said : " The proof of insanity at the time of com-
mitting the act ought to be as clear and satisfactory in order to acqiui
him on the ground of insanity, as the proof of committing the act
ought to be to find a sane man guilty." ■'
This principle of requiring clear and satisfactor}' evidence in support
of the defence of insanity, thus appears to be recognized and adopted
in England and this country, and not to have been regarded as conflict-
ing with the principle which deems every man innocent until the co 'rarv
is shown beyond a rational doubt. It is based upon the legal ai vi-
ously necessary presumption of sanity; and, in our opinion, it .. ifc
rule, founded in reason and good policy, sanctioned by experience and
authority, and should not be departed from.
We arc of opinion, therefore, that the Circuit Court did not err to
appellant's prejudice in refusing the instruction asked, and in grantin<f
the third instruction. Without noticing in detail the other instructions.
we deem it sufficient to say that they are as favorable to appellant as the
law of the case permitted, and that no error was committed to his pre-
judice in granting them.
With the facts of the case we have nothing to do. The j'lrisdiction
of this court is limited in such cases to questions of law arising ami
saved by exceptions during the progress of the case. Beyond that it
does not reach.
There being, then, in our opinion, no error in the record to the aiipol-
lant's prejudice, the judgment of the Circuit Court cannot be disturbetl.
but must stand.
Wherefore, the judgment ia affirmed.
HI
> 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 ' ■<iiiu
aril, .wii
ncer's Case
of the art
I (loliveriiiu
mo of c'oin-
' to acqiiii
Hi,' the act
in support
cl adoptdl
as eonllict-
e CO *ran
[ ai vi-
it .. i/(.
'ience and
not err to
II grantin<f
itructions.
!ant as the
his pre-
irisdiction
ising ami
nd that it
ihe appol-
listurbed,
firmed.
Syllabus ami Iii.striictlutiN.
BURDEN OFrUOOF — niESUMl'TION OF SANITY— MORAL INSANITY -
1) RUN KKN NESS.
KkIEL V. Co3I.MOX WEALTH.
[5 Bush, 3(i3.]
In the Court of Appeals of \''-.>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;<to court in the presence of both parties: —
"The jury being l)rouglit into court for an explaffation as to what
seems to them to be a conflict between the fourth instruction aiven
for the defendant, and the seventh instruction given for the Com-
nionwealth, the court instructs them thereon, as follows: 'The two
instructions taken and considered togeth.er, meant, that if the jury have
a reasonable d ubt as to whether the accused was of sound mind when
he did the killing, they must acquit him, and it is immaterial from what
cause his unsoundness of mind may have arisen ; but they cannot
!ic(iuit him on the ground of unsoundness of mind arising from delirium
tremens, unless they believe, from all the evidence, he labored under
unsoundness of mind at the time of the killing; and they cannot pre-
s! . . - such unsoundness of mind fnmi the mere fact that he had
previously had an attack of delirium tremens, from which he had
recovered. If tUay have a reasonable doubt of his soundness of mind
at the time of the killing — it matters not ))y what cause the unsound-
ness of mind may have been produced ; but the fact of his previously
having had an attack of delirium tremens from which he had recovered,
is not, of itself, sufficient evidence of unsoundness of mind at the time
of the killing ; it is a fact, however, to be considered bj- them in weigh-
ing the otlier testimony bearing on the condition of his mind at the time
of the killing.
"'The jury also inquired whether, in making their verdict, they
sliould confine themselves strictly to the evidence and instruction of the
court. They are instructed that they are to consider nothing as evi-
dence except what was proved before them in court ; and the instruc-
tion given by the court are the law of this case ; they are, however, to
give due consideration to the arguments of counsel, so far as the argu-
ments seem sound and assisting to them at arriving at correct conclu-
sions from the law and evidence. If, however, the jury believe, from
the evidence, to the exclusion of a rational doubt, that the accused was
of sound mind, and killed the deceased, but did so without malice afore-
thought, they should find him guilty of manslaughter, and fix iu their
verdict the period of his confinement in the penitentiar}' at not less than
two nor more than ten years.' "
Under the provisions of our criminal code we have no jurisdiction to
reverse on the evidence, for as to this the verdict of the jury and judg-
ment of the court are conclusive ; but our jurisdiction is confined to
the corrections of errors of law, and, therefore, we can onlvlook into
382
THE BURDEN OF TROOF OF INSANITY.
Kriel v. Coininouwoalth.
the facts to ilcterinine as to the proper application of the legal rules
thereto.
Without a rehearsal of the various facts developed in this case, to
some extent conflicting in their nature, it is sufHcient to say that the
evidence would have justified the jury in finding, either that the defend-
ant was sober and of sound mind at the time of the homicide, or that
he was intoxicated, and to some extent at least, irrational, as they
might most credit the statements of the witnesses of the respective par-
ties, or give more importance to the facts detailed by them.
It appears that Mrs. Kriel was a woman of feeble health, delicate and
fragile ; that she had taken her clothes to the house of her sister, resid-
ing in the same city (Louisville) with her, intending to go to the
country, and that her mother, sister, and herself, wyre still at the dinner
table when the accused came in and asked her relative to her taking her
clothes away ; when she substantially replied she was going to the
counti'y, as the doctor had advised her she must do for her healtli.
The defendant immediately addressed her sister, and asked what she
meant by saying, "If he had been my husband, I would have killed
him long ago." It further appears from this sister's evidence tliat
Iliiel and wife had before divided their property, by the advice of their
Counsel. Immediately after this address by Kriel to his wife's sister
she went up stairs, and Kriel, with violence, choked his wife until she
fell prostrate and apparently dead, when her mother gathered her u[)
into her lap ; then stooping over her, he pulled from his pocket a pistol,
and shot her through the head. She never spoke, but expired imme-
diately.
The sister hearing the confusion below, and supposing Mrs. Kriel h.ad
fainted, with a pan of water was returning to the lower room, when
Kriel, immediatel}' upon her appearance in sight, shot at, but missed
iier. He then put his pistol to his own head, shot once or twice, the
balls how Dver lodging in the scalp, without fracturing the skull, and
then immediately ran, when the crowd attracted by the alarm, and some
[)olicemen, chased him some half mile. When they came up with him,
he was on his knees and hands under the bank of a small branch, as
though he had fallen from exhaustion or was attempting concealment.
He said but little on his way to the jail, and seen>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<r?
Suppose he was insanely jealous, it would not necessarily follow that
he should not know it was not rhAit for hira to kill her.
" But if it is shown that he not only had an insane delusion on that
subject, but that he supposed he had a right to kill her, that covers the
whole. But the mere fact that a man is jealous with cause, does not
justify him in killing a woman, if she is his lawful wife. So, if he is
insane with a monomania, he is not justified in killing her, unless it is
shown that he had a faith that it was right for him to do it, and hatl
lost all sense of responsibility for it. I have now reached the point
where I can give you the general instructions that I intended.
"To excuse a man from responsibility on the ground of insanity, it
must appear, that at the time of doing the act he had not capacity and
reason sufficient to enable him to distinguish between riirht and wronir
as to tlie particular act he was doing. That he had not knowledirc.
consciousness, or conscience enough to know that the act he is doing i>
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 isconvicte<l, unless he inter-
poses somu defence other tliau a sane denial of the allegations against
liiiii. A simi)le plea of not guilty puts in issue tlie allegations, and only
the allegations in the indictment, and as to them the prosecution has the
allirmative. But if the accused woiihl put in issue any otiicr allegation,
any (piestion as to his capacity or responsibility, he must do it by an
allirraative statement. If he puts in the plea of insanity he assumes tfic
atfirmative, he changes the issue. And it is immaterial whether it is in
writing or merely verl)al ; in either case it just as effectually raises a
n w issue. It is true it may be resorted to in connection with the plea
of not guilty, but it is mn and cannot be a part of il. The plea of in-
sanity is, and of necessity must be, a plea of confession and avoidance.
It does not deny a single allegation in the indictment, but simply says,
grant all tliese allegations to be true, that all these acts have been done,
an I still guilt does not follow, because the doer of them is notresponsi-
M • therefor. It does not meet any question propounded by the indict-
ment, butraises one outside of it. It is not a mere denial, but a positive
allegation. It is, however, said in the aigument, that the plea of in-
sanity does deny the allegation of malice, because the insane is not
capable of such a state of the mind. If tiie term malice is used in the
common meaning of that word, it is not now necessary to discuss the
iiuestion as to how far those who are insane may or may not indulge in
it, tliough it may well be doubted whether a person may not be so un-
s' mid in mind as to be irresponsible, ahd yet be actuated by malice as
implying hatred. But however t!;is may be, he may have malice in the
legal and technical sense, or he may be so wilful and deliberate in his
iction, that the law in the absence of proof of insanity, will conclu-
vely Infer malice. When insanity is found, it does not show that the
act was any less wilful or deliberate or intentional even ; but it does
s ow an excuse, an irresponsibility of what would otherwise have been
criminal. So here, as in other respects, the plea of insanity does not
-leny, but avoids ; confesses this element as well as the others, but ex-
394
THE BURDEN OF PKOOF OF INSANITY.
State V. Lawrence.
cuses. It would seem, then, that the question of insanity can never be
raised, unless by tlie prisoner; and by him onh-in an affirmative allega-
tion, such as carries with it the burden of proof
Every man is presumed to be innocent. The presumj tion stands till
every reasonal)le doubt is removed. Tlie law presumes every man saui'.
Why should not this presumption stand till removed by at least a pre-
ponderance of evidence? Does it not, and must it not necessarily titill
stand, though we may have some doubts of its truth? That which ex-
ists is not destroyed simply because it may be enveloped in a thin cloud.
However we may theorize, it will still exist until demolished.
If this prf^sumption is to be overthrown by a doubt as Avell might it
be abolished at once, and leave the question of sanity like that of malice,
to be proved by the government, or implied from the circumstances ot
each case. But this presumption cannot be abolished. It is inherent
in human nature and will exist as long as rationality io an attribute of
man, and existing, it should have some meaning, some force; enougli.
at least, to enable it to withstand something more than a reasonable
doubt.
In Commonwealth v. Mackie,^ is very clearly stated the limits of the
burden of proof in criminal cases as resting upon the government,
where the issue is raised by a simple denial of the allegations in the in-
dictment. It is there held that "where the defendant sets up no
separate independent fact, in answer to a criminal charge, but confines
his defence to the original transaction charged as criminal, ", Ith its ac-
companying circumstances, the burden of proof docb not cha.ige, but
remains upon the government to satisfy the jury that the act wasunjusti-
llable and unlawful." It is furt^ v said in the opinion, " there may be
cases where a defendant relies on some distinct, substantive ground of
defence to a criminal charge, not necessarily connected with the trans-
actions on which the indictment is founded (such as insanity, for
for instance), in which the burden of proof is shifted ui)on the defend-
ant."
In the more recent case of Commonwealth v. Eddy,^ where the ques-
tion as to the plea of insanity came directly before the court, it was
held that the burden of proof was upon the defendant, and that he must
satisfy tlie jury of his insanity by a preponderance of evidence.
In accordance with tiiis authority arc many others entitled to great
respect.^
« 1 Gray, 61.
» 7 Gray, 583.
3 United States v. Holmes, 1 Cliff.
ns;
Wharton's Am. Crim. Law, sects. 16, 7, It,
and cases cited; 2 Ureeni. on E«., sect. 373,
and notes.
INSANE I'EIISON TO IJE DETAINED.
395
Baldwin v. Statu.
But in this matter, we are not left to tlie principles of the common
law alone. Our statute law, by imi>lication 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<liiiii- to
show tliat at different periods he was not in liis proper mind ; when the
defendant's counsel asked the witness tlie following questions: —
First. Was his mind affected b^' his dreams and other siglits which lie
saw in his dreams? Second. From all that you have seen and known of
the defendant, what is yoiu* opinion as to whether be was or was not
insane at the time he left your liouse for Arkansas? Third. From the
acts and conduct of the prisoner for two years previous to his going to
Arkansas, was he an insane person? Anstcer. His conduct was sucli as
to induce my particular and special attention. It was because I did
not know but that be was going distracted. These qui stions and an-
swers were objected to by the prosecuting attorney, and the objections
sustained by the court. To the action of the court, on this point, the
defendant excepted, and also assiirns it for error.
The principle involved in the above exception has been examined In-
the appellate court of North Carolina, in the case of Clcm/'s Admr. v.
Clary, ^ wherein it was attempted to set aside a will, because of the in-
sanity of the testator, at the time of its execution ; and the opinion of
a witness was asked as to the state of the testator's mind at the time of
making the will. The opinion of the court is so comprehensive and con-
clusive, and meets our views of the law so fully, that we shall adopt that
part of the opinion which discusses this question. The court say : It is
certainly the general rule tliat witnesses shall be examined as to facts,
whereof they have personal knowledge, and not as to those in regard to
which they have no personal knowledge, but have only foniied an
opinion or belief. But this rule necessarily admits of exceptions.
There are facts, which from their nature exclude all direct positive
proof, because they are imperceptible by the senses, and of these no
proof can be had, except such as is mediate or indirect. No man can
testify, as of a fact within his knowledge, to the sanity or insanity of
another. Such a question, when it arises, must be determined by other
'. 3 Ired. 78.
OnXIOX EVIDENCE.
405
Opinions of Ordinary Witnossi's as to Insanity.
;ion vested
arfjed iiinl
ianity he is
cx'ssary to
nco. 'I'lic
as to tlif
jion of tlif
teii(liii<>- 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
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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 ^'<tat<s
V. Dreu!,^ and United States x. Me Glue, '^^ will l»e found to maintaiu
> Wh. & St. Me<l. Jur..8CCt. 67; 1 Whart.
Crini. Law, sect. 38; State r. Cross, 27 Mo.
= Co. Litt. 217.
3 United States r.
* male, P. C.32.
' Supra.
■0 1 Curtis C. C. 1.
Drew, 5 Mason, 2s.
DRUNKENNESS AS A 1)F -XCE.
421
The Law in u ^ United States.
ilately cdh-
by the iim
I iiTespoii-
icl not take
lalty of hi.-
n, docs IK It
espousiMc.
n the ciiiii-
voluhtariu>
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." ■■
<i\)nei:ill.\
U'il Glut's
uKiintum
son, 2S.
the principle, upon the anthority of Judge St(»i{t and Judge CniTis, of
the Supreme Court of the United States. These last two cases not only
state the general principle, but confirm the distinction announced by
Hale, that where mental disease, or, as he terms it, a '''■fixed frenzy, ^^
is shown to be the result of drunkenness, it is entitled to the same con-
sideration as insanity arising from any other cause. The first of these
was a case of delirium tremens, and Judge Stokv directed an acquittal on
that account. In the other the evidence left it doubtful whether the
furious madness exhibited bj' the prisoner Avas the result of pi-esent in-
tuxication or of delirium supervening upon long habits of indulgence,
rpon this state of the evidence Judge Ci'htis stated the rule and the
exceptions with remarkable clearness and force.
Prof. Greenleaf, whose general accuracy in the statement of legal
principle is unquestioned, says that " in criminal cases, though insanity,
;is we have just seen, is ordinarily an excuse, yet an exception to tliis
rule is where the crime is committed by a party while in a fit of intoxi-
cation; the law no*: permitting a man to avail himself of the cxcu-e of
his own gross vice and misconduct to shelter himself from the legal
cMUsequences of such crime. But the crime, to be within the excep-
tion, and taerefore punishable, must take placf and be the immediate
result of the fit of intoxication, and while it la.sts, and not the result of
insanity remotely occasioned by previous habits of gross indulgence in
spirituous liquors. The law looks to the immediate and not the remote
cause — to the actual state of the party and not to the causes which
remotely produced it." '
The instruction given at the instance of the prosecution told the jury
that if they believed from the evidence that the defendant was laboring
lui'ler a temporary frenzy or insanity at the time of the killing of
Boyer, which was then and there tlie innnediate result of intoxicating
liijuors or narcotics, he was guilty. This instruction was unobjection-
al)lo, for, as we have already seen, temporary insanitj' produced imme-
diately by intoxication does not desfroy responsibility where the accused,
when sano and responsible, made himself voluntarily drunk. But the
crime, to be punishable under such circumstances, must take place and
He the immediate result of a fit of intoxication, and while it lasts, and
not the result of insanity remotely occasioned by previous bad habits.
The subsequent instruction, given by the court, of its own motion,
was unguarded, open to misconstruction, and liable to mislead. It de-
clared that if the defendant was so far deprived of will at the time of
' 2 Greenl. on Ev., sect. 374.
422
THE iiuuDEX or rnooF of insanity.
Statu V. Ilundk'V,
tlie commission of the act as not to possess tlie p(>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(»(<ill,
" Ei.I.IAII II. NoUTUN,
" John W. IIexky,
Judges.
1. Burden of Proof. — Tho burden of proving insanity &» a, defence toft criminal charge
rests on tlic prisoner. To establish such a defence evidence is necessary, such as will
reasonably satisfy the jury.
•2. Particular Bifrht and Wionfr Test. —The t- t of the prisoner's responsibility is
whetlicr he was capable of distiuguisliing be* en right and wrong in respect to thf
act cliargbd.
i. A new trial will not be (granted on account of newly discovered OTidence which is
cumulative.
Appeal from St. Louis Court of Appeals.
A. X. Jlerrick, for appellant.
Smith, Attorney General, for the State.
NOKTOX, J.
The (lefeiulant was indicted at the July term, 1878, of the St. Louis
Criminal Court for murtler in the fust degree, for killing one Franz
\(tsz. The cause was tiied at the November term, 1878, of said court,
and defendant was found guilty and sentenced to be hanged. An ap-
peal was taken to the St. Louis Court of Appeals, where the judgment
of the Criminal Court was allirmed, and from which defendant has ap-
|)ealed to this court. The fact that deceased was killed by the defendant
in the most brutal manner, without cause or excuse is not dibputed, but
it is claimed that no criminality attaches to defendant because it is al-
l.'iiod that he was insane at the time tlie homicide was committed. The
insanity of defendant was the only defence relied upon in the trial couri.
and a reversal of the judgment is sought mainly upon alleged error com-
mitted by the court in its charge given to the jury and in refusing to
give the declarations of law asked by defendant.
The charge complained of is as follows : —
"As a defence to this prosecution the defendant by his counsel has
interposed the plea of insanity. lie says that the act which he is al-
' Affirming .State r. Redemeicr, 8Mo. (App.) 1 1879.
1(mJ
in:!
lavl
an]
hiij
SnI
\vJ
i;ui
TEST OF INSANITY.
425
Opinions of Exports.
logcd to have committed is not an act for which he can be held crim-
inally responsible, in other words, that the act was and is excusable in
law, becau.'ic at the time of its commission, as charged, he was insane.
"The term insanity, as used in this defence, means such a perverted
and derani^ed condition of the mental and moral faculties as renders a
litTson incapable of distinguishin<^ between right and wrong, and makes
him unconscious at times of the nature of the act he is about to commit.
Such insanity, if proved to the reasonable satisfaction of the jury to
have existed at the time of the eoniniission of the act, is in law an ex-
cuse for it, however brutal or atrocious it may have been.
*' The law presunies every person to be of sound mind until the con-
trary is shown, and when, as in this case, insanity is interposed as a
lU'fence, the fact of the existence of such insanity at the time of the
commission of the offence charged must be established by the evidence
to the reasonal)le satisfaction of the jury, and the burden of proving
this fact rests with the defendant.
'* The oi)inion3 on questions of insanity which have been given by tlie
inotlical experts a'e testimony before you, and are subject to the same
rules of credit or discredit as the testimony of other witnesses. The
opinions neither establish nor tend to establish the truth of the facts upon
which they are based. Whether the matter testified to by the witnesses
ill the cause, as facts, are true or false, is to be determined b}' the jury
alone. Neither are the Iiypothetical rpiestions put to the medical experts
l)y the counsel in the cause, evidence of the truth of the matters stated
in these questions.
"^Uthough the jury may believe and find from the evidence that the
flefendant did commit the act charged against him, yet, if they fin-ther
find that, at the time he did so, he was in such an insane condition of
mind, that he could not distinguish lietween right and wrong, then such
act was not malicious, and the jury should acquit him of the crime
charged, on the ground of insanit}', and so say in their verdict.
" To establish his insanity positive or direct testimony is not required.
Circumstantial evidence which reasonably satisfies the minds of the jury
that the defendant was, at the time the alleged shooting was done, in-
capable of distinguishing between right and wrong, or of comprehend-
ing the nature of the act, will be suHiciient.
" The jury are the sole and exclusive judges of the degree of credit
which shall be given to the testimony in the case, and have the right to
receive and credit as true, or to reject and discredit as untrue, the
whole or any part of tlie testimony of any witness in the case. If,
after the jury have carefully taken into account and considered all the
426
TIIK ULUUEX OF PItOOF OF IX.SAXITV
.Stilt f r. Hi'deiiK'icr.
evidence in tiic case, there remains in tlieir minds a reasonable doiilit
of the guilt of the defendant, tlie law, in its humanity, gives to him tin
benefit of that doubt, and they should acfiuit. But to authorize an lu -
quittal on the ground of doubt alone, such doubt shouhl be reasonaMc
and subst.'intial, and not a mere guess or conjecture of his * probalik'
innocence.' "
The objections urged to the above charge are tliat it does not proji-
erly define insanity, and that the rule as to tiie burden of proof wlun
the defence is insanity, and the degree of proof sullicient to authorize
a jury to find insanity, are not correctly stateil. Testing these o])Ji(-
tions by repeated decisions of this court, it will be found that the}' luv
not well taken. These decisions, we think, clearly establish that tin
law presumes everj' person who has reached the years of discretion, to
be of sound mind and capable of committing crime, and that such a
person, charged with the commission of crime, before he can escape
the penalty aflixed thereto, under the plea of insanity, must rebut sudi
presumption, by evidence which reasonably satisfies the jury that lie
was insane at the time the act was committed, or that his mind was so
diseased as to render him incapable of distinguishing between right and
^rong in respect to the act for which he is sought to be made crimin-
ally responsible ; that the question of insanity is one of fact, to be (U-
termined by the jury, and that, when the unlawful killing is provetl iiy
the State or admitted by the accused, the State maj' rest ui)on the legal
l)resumption of the sanity of the accused till he shows the contrary :
that the burden of proving insanity rests upon the party setting il up,
and that, to discharge himself of this burden, it is not necessary to in-
troduce evidence which establishes, beyond a reasonable doubt, his in-
sanity, but only sufficient to reasonably satisf}- the jury that it existid
at the time the offence was committed; tiiat if the preponderance of
the evidence offered establishes insanity, it is sufficient. ^ In the ca>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
<legree of evidence necessary to establish insanity, as adopted in this
"^tate, should be modified and made to conform to the rule laid down in
die case of fiitate v. Cnavfoi'iIS' and other cases in Illinois, Indiana, and
New Hampshire, of which the case of Stntev. Cnivthrd is a t3'pe. The
rule approved in that case is that, whenever the defence offers evidence
whieh raises a reasonable doulit as to the insnnitj' of the accused, that
is sulTicient to rebut the presumption of sanity and to authorize an ac-
'luiltal.
As to the degree of evidence which the accused is required to offer
to establish the fact of insanity, the authorities are so conllicting as to
lie irreconcilable. It is held by some courts of the highest authority,
both in this country and England, that insanity, when set up as an cx-
euse for the crime charged, should ])e established by evidence sufficient
to satisfy the minds of the triers of the fact beyond a reasonable doubt,
that it existed at the time the act was committed. The conclusion
reached in this class of cases is based upon the theory that, in every
criminal case, two presumptions of law are indulged — one in favor of
' Sect. 373.
"■ 10 n. & Fin. 200.
^ 5 C. & i'. 108.
* 4 Pa. St. 2.;'
' 4 Denio,!).
•> 11 Ka8. 32.
428
THE BURDEN OF PROOF OF INSANITY.
State V. Itidcmc'lLT.
the person charged, that ho is innocent of tlie char<i;c — tlio otlu'r in
favor of tl»e pul)lic, that tlie aecusetl, if of the years of discretion, is
iif souml mind and c'a|)al)le of committing crime, and that as tlie pn-
sinnption of innocence protects tiie accused till tho State, by evidence,
establislics his guilt beyond a reasonable doubt, so the presumption tiiat
he yvna sane when the act was committed, protects society till it is over-
thrown by a like degree of evidence offered in support of the plea of
insanity.
While some cimrts have gone to this extreme, others of high autiiority
have gone to tiie other extreme of holding tiiat to supijort tiie pica ot
insanity it is only necessary that the evidence offered should be sullicicnt
to raise a doubt as to the insanity of the accused. Other courts, e(iually
authoritative and much greater in number, acting on the principle that
1)1 vii'dio tntinsimns est, have adopted a rule lying between these two
extremes, holding that the defence of insanity is established when the
evidence offered in support of it preponderates in favor of the fact, and
reasonably satisfies the jury that it existed at the time tiie criminal ad
charged was committed. Tlie rule last referred to has been the estali-
lislied law of this State since the case of Baldirin v. State • wa.>,
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 (li<l not discloso nn mlequatc jiujUvo for llu' coininissiou of the
l,(imi<'iilL' ; that (U'l-easi'd was killed in ii public .stivet in the iirc's»t'nt'i'
(if several witni-s.se.s ; that defendant was indifferent to the consi'ciuences
of his crime, and made nu effort to escape, and previous to the homicide
would freciucntly sit for an hour or more at a time without cntjaLMng in
conversation. While the absence of motive n»ay be considered, in
citnnection with the other facts, in reachinjj; a conclusion as to whether
defendant was or was not insane, it by no means follows from the mere
fact that the evidence offered fell short of discovering? a motive, that a
motive did not in fact exist, locked up in the breast of the accused.
That defendant was operated upon l>y 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. IIu<rhes, in ans\\,i
to the question, also gave it as his opinion tha(. the accused was sane :it
the time I he homicide was committed. We have held that in criminal
cases, where it clearly appears that the verdict is against the weight of
evidence, this court would interfere to set it aside. But in this cast'.
after a careful examination of the evidence, we cannot say that the ver-
dict is against the weight of evidence and will not therefore interfere.
The newly discovered evidence set out in the motion as a ground for
a new trial being entirely cumulative, the motion was properly overruleil
for that reason. Perceiving no error either in giving or refusing in-
structions or in admitting or rejecting evidence, the judgment is aJlirmci'
in which Judges Shekwooo, II(H<iii and Naiton concur, and Judge
IIexuv dissents.
IlESitv, J, dissenting.
I cannot concur in tlie foregoing opinion, and will brieflj' state niy
reasons for dissenting. The allegation that defendant wilfully, deliber-
ately and premeditatedly committed the homicide for which he is
indicted, includes the allegation that he had a mind capable of will-
ing, deliberating and premeditating. Wilfulness, premeditation
and deliberation are constituent elements of murder, and none
but a sane person can commit that, or any other crime. Homicide
is not necessaril}' a crime, for one may kill in self-defence, or by
accident, or in a state of mental aberration. If the State prove the
killing, she is not also required to prove that it was not in self-defence,
or not the result of accident ; but when defendant has proven enough
to raise a reasonable doubt, whether it was in self-defence, or acci-
dental, the State must show, not by a mere preponderance of evidence.
but beyond a reasonable doubt, that it was not accidental or in self-
defence; and it is dillicult to perceive a reason why the same principle
is not equally applicable to the issue of sanity made by the plea of not
guilty. It is true that the law presumes every one to be sane, ami.
therefore, the State is not required to introduce evidence of the sanity
of the accused except in rebuttal. The sanity of defendant is as much
in issue as the homicide ; and although the law presumes certain facts to
exist when certain other facts are proven, yet in a criminal case, when
the fact presumed is disproved, or sullicient evidence is adduced to
itl
tlf
8TATK V. KKDF.MKIKI!,
4:u
Dlssi'iitlny Ojiliilcin of Iliiiry, .1.
wMiTniit a rcttsionble doiibt of ifn oxistoiu-o, tho prostimption coasios.
Til siiy timt only !i sane piTHoii can Itc <rnilty ami declare the law to Ito
tliMt the State ninst estalili>ii difenchint's jrnilt l»cyon<l a reaHoiialih'
ilMilit, and yel tliat unless defcnilant eslalilishes his insanity ]»y a i)re-
IMiiiderance of evidence, the jury shonld convict, is a palpable conlra-
ili<'lion. If one accused of nundcr a<linit the homicide and alle{j;e tliat
it was an accident, it is fur hinj to make that appear, but if lu» introduce
e\ ideiice tending to prove that f at t suillcient to ]»ejxet in the minds of
llio jury a reasonable doubt that thi' l\illin<j was intentional, the iiencfil
nf that doubt ho is entitled to by law. Wbat is tho substance of the
(li'fenee in either case? Simply that, althouuli tho homicide was com-
mitted by the defendant, his mind did not concur in the act ; and yet in
the case of the one who admits his sai'! v, he has the bencIlL of a ica
snnable doid>t 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<lence, a
state of facts showing that tho mind did not concur. The distinction
lias no riasonable foundation for its support. If a jin-v are to acquit
on a reasonable doubt of defendant's guilt, and one cannot be guilty if
insane, by what process of reasoning will a jury, having a leasonaolc
doubt of defendant's sanity, come to the conclusion that they shouM
convict, notwithstanding the ''nstruction that a n asnnable doulit of his
iriiilt entitles him to an acciuittal? A man whose thinking is not rcgu-
lati'd by artificial rules would not hesitate to acquit under such circum-
stances, and it would require a most refined and ingenious argument to
ilcnionstrate to him that ho could convict without disregarding that in-
struction. But it is said that the law presumes him sane, and that this
presumption deprives the accused of the benefit of a reasonable doubt
as to his sanity. The one proposition is based upon the fact that san-
ity is the normal condition of the human mind, and that insanity is ex-
ceptional and abnormal. The other presumption is in favor of life and
liberty. The former presumption has no effect but to relieve the State,
in the first instance, from making any proof on tho subject, holding thnt
the fact that the accused is a human being dispenses with proof of his
sanity, because that is the normal condition of human beings. It sim-
ply reverses tho order, not the burden of proof. It presumes tlu;
accused sane, but requires him to make no more iiroof of his Insanity
than of any other fact which he relics upon for his actpiittal of the crime
lie is charged with. The one presumption does not destroy the otjker,
as to any fact which must be found to exist in order to a conviction. I
cite no authorities in support of these propositions, but they are numer-
ous a. id respectable.
432
THE BUUDEN OF TUOOF OF INSANITY
Locffncr v. Stato.
BURDEN OF PROOF — TEST — Pr K A OF NOT GUILTY — RIGHT TO
OPEN AND CLOSE.
LOEFFNER V. StATE.
[10 Ohio St. 51)8.]
In the Supreme Court of Ohio, December Term, 1857.
lion. TiiOMA.s W. Bahtlky, Chief Justice.
" J()SK1'1[ R. SWAX, -k
" jACOllBUIXIvKItllOKF, I
" JosiAii Scott,
" Milton Sutlikf,
Judges.
1. Plea of NotOuilty— Defence of Insanity— BiRht to Open and Close. — The dc
fence of insanity unilur the plea of not guilty does not entitle the defendant to thf
opuuing and closing argument to the jury.
i. Particular Rigbt and Wrong Test. — A person who has reason sufficient to distinguish
between right and wrong and to understand the nature of the act is luinishabh-.
3. Burden of Proof. — The burden of iiroving the defence of insanity to the satisfaction of
the jury rests on the prisoner.
EuKou to the Court of Common IMcas of Hamilton County.
The prisoner, Joseph Loeffner, was indicted for killing with a knife
on July 21, 1857, one Nicholas Ilorton.
At the trial, the defence set ui) on behalf of the defendant was, " not
guilty, l)y reason of insanity."
On behalf of the State, testimony was given in regard to the com-
mission of the homicide by the defendant, and to prove him guilty, as
charged in the indictment. On behalf of the defendant, testimony was
given to sustain the defence of insanity. Rebutting testimony was
given on behalf of the State.
After the conclusion of the testimony, the defendant's counsel moved
the court to allow them to open and close the argument to the jury, they
holding the affirmative of the issue made by the plea of "not guilty,
by reason of insanity." The court overruled this motion, and counsel
for the defendant excepted.
In charging the jury, the court used the fo lowing language touching
the plea of insanity.
" The defendant, Joseph Loeffner, through his counsel, pleads thnt
he is not guilty of killing Nicholas Horton, in manner and form as set
forth by the State, by reason of insanity. His counsel claim that he
was an insane man at the time of the commission of the act, and.
UGIIT TO
B. — The de
udant to tin-
5(listingulsli
able.
tisfactiou of
1 a knife
as, " not
le com-
fuilty, as
lony was
ony was
1 moved
iiy, tliey
guilty,
counsel
ouching
.ds that
as set
that he
t, and,
LOEFFNER V. STATE.
433
Instructions of the Court.
th refore, an iiTesponsil)le Iteini;; irresponsiI)le to the law fur murder
ill tlie first or second degree, or for the crime of manslaughter. Was.
then, Joseph Loeffner insane and irresponsible to the law at the time he
eonmiitted the act of which the State complains?
" If you resolve tiiis important question, after a full investigation :ind
consideration of the testimony in the aflirmative, the defendant must
l)e acquitted on the ground of insanity, and in sncli a case yotu* verdict
will be: ' We, the juiy, find the defendant not guilty, by reason of in-
siinity.' But here your most earnest and careful attention is reciuired
Look at all the evidence touching this issue. You Avill examine all the
lU'tailed evidence touching iq)on the subject, and permit not your minds
to be carried away by loose inferences or cureless deductions. The
lilea of insanity is an afHrraativc issue of the dt-fendant. lie, bj-- his
counsel, sa^'s that he is not guilt}', because he was insane at the time
(if the commission of the act. llis counsel are therefore called upon
to invjvo this fact, and to prove it aflfirmativelv. It was formerly held,
indeed up to within very recent time, that this issue being thus affirma-
tively made by defendant or his counsel, must be proved beyond a
reasonable doubt, holding the defendant to as strict proof of insanity
as the State is held when she makes a charge against the defendant.
Hut perhaps it would be going too far to lay down this doctrine in so
stric.'t sense, as the law now exists with us upon this subject, at least, ' in
favor of life.' The great dilflculty upon this subject is our M-ant of
knowledge ; and the policy of the law is to let no iimocent man be con-
demned, or let no guilty man escape punishment; jet that policy
<ays, rather let the guilty go free than subject the innocent or irrespon-
sible to punishment. But you must observe this in examining this
question, you must consider it important, both for the protection of the
(-■omrainiity and the safety of the innocent; and let me lay down to you
tliese principles of the law: —
"1. Every individual charged with the commission of a ci-ime or an
offence, is presumed to be sane, if over the age of childhood. Ever}-
individual charged with the crime of murder, over the age of infancy
I r childhood, is presumed to be sane until the contrary is shown, when
ilie plea o:. insanity is set up.
"■ 2. When the plen, is preferred, the burden of proving insanity rests
upon the part of the defendant. He must prove it affirmatively. But
it is for the jiuy to conclude upon the proof offered; and if, on due
<'onsideration, they are convinced by the proof, upon weight of evi-
dence, that insanity, in its legal sense, existed at the time of the com-
28
434
THE IJLKUEN OF I'UOOF OF IN.SAMTV
LoiffiiiT r. State.
mission of the :ict, it will be their duty, at least in favor of life, so to
fnid.
" To apply these principles to this ease: Joseph Locffner, by the law.
at c time of the crime charged, is presumed to have been sane, and tn
!)e fully responsilile for the consequences of his own acts. If, however,
front a full and cartful examination of all the testimony of the case, in
its weiuht and character, the conclusion is (ixed upon your minds that
the defendant was ins:nie at the time of the commission of the act.
then it is your duty to find in favor of insanity. Butwhatis theinsaniiv
about which you are abont to pronounce your judgment? For upon
this point your i)athway nnist be made clear by the law. Insanit}', in-
deed, exists in so man}' shapes and forms, has so many varied insignia
and manifestations, that it is almost impossible for science to compre-
hend it or gi\-e it intelligible defuiition. The learned and the unlearned
differ about it ; what is insanity to one is not so to another. The
classes, species, and modifications are not well iniderstood by any of us.
learned or otherwise. It seems, indeed, as indefinite in extent as mind
itself. Then, how shall we determine the responsibility, on this suli-
ject, of man to the law? The policy of the law ought to fix it as far
as it can, and the law does fix it. Insanity, in its general legal sense,
is the inability or incapacity to disting'ush between right and wrong, as
applied to particular cases of crime ; it is the inability or incapacity to
distinguish between right and wrong, or the want of knowledge of
right and wrong as to the particular act committed. If, in the com-
mission of a criminal act, the capacity of distinguishing l)etween right
and wrong is overcome or destroyed, or the knowledge of such a dis-
tinction is buried in oblivion, such a fact would make a perpetrator
irres;)onsible. We will adopt the language of Chief Justice Shaw, in
the Ab)ier Jiogers' Case, ' that in order to constitute a crime, a man must
have intelligence and capacity enough to have a criminal intent anil
purpose, and if his reason and mental powers are either so deficient that
he has no will, or conscience, or controlling mental power ; or if through
the overwhelming violence of mental disease, his intellectual power i->,
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 an<l right,
injurious to others, and a violation of the dictates of duty. On tlie
contrary, although he may be laboring muler partial insanity, if he still
understands tl'.o nature and character of liis act, and its conseiiueuces,
if lie has a knov/ledge that it is wrong and criminal, an*' ji mental power
sntfieient to apply that knowledge to his own case, and to kncnv that if
he does the act he will do wrong, and be liable to punishment, such
partial insanity is not sullicient to exempt him from responsibility for
criminal acts.'
"And further we say for the purpose of enlightening you upon
this subject, we will quote from 12 Ohio,' the language of Judge
BnioiiAKu in the case: ' Was the accused a free agent in forming tht;
p'.wpose to kill? "Was he at the time the act was committed cai)able of
judging whether that act was right or wrong? And did ho know, at
the lime, that it was an offence against the laws of God and man? If
you say nay, he is innocent; if yea, and you find the killing to Iiavc
l)een purposely, with deliberate and premeditated malice, he is guilt}-.
In trying this question, you will bear in mind that the law presumes
every person of the age of fourteen years or upward, to be of sufllcient
capacity to form the criminal purpose, to delibeiate and premeditate
ui)on the act which malice, anger, hatred, revenge, or other evil dis-
position might im{)el him to perpetrate. To defeat this legal presump-
tion, which meets the defence of insanity at the threshold, the mental
alienation relied upon by the accused must be alHrmatively established
by positive or circumstantial proof; you must be satisfied from the
evidence that the perverted condition of the faculties of the mind in-
dicated in the main question, which I have already stated as excusing
from crime, did exist at the time Sells was killed. It, is not sufllcient,
if the proof barely shows that such a state of mind was possible ; nor
is it sufllcient if it merely shoAvs it to have been probable. The proof
must be such as to annul the legal presumption of sanity ; it must
satisfy you that he was not sane. It would be unsafe to let loose upon
society great offenders upon mer« theory, hypothesis, or conjecture.
A rule that would produce such a result would endanger community
by creating a means of escape from criminal justice which the artful
and experienced would not fail to embrace. The defence of insanity is
not uncommon. It is by no means a new thing in a court of justice.
1 Clark V. Stnte, p. 4!M.
436
THE UUUDEN OF PROOF OF INSANITY.
LocffiiiT i\ stall"
It is a <lc'fcnc'0 ofti'ii attomptod to l)o made, more especially in eases
where Mffsriavated oriines have been connnittefl under eireunistanees
Avhieh jifford full proof of the overt aet, and render hopeU-ss ul) other
means! of avoiding punishment. While, then, the plea of insanity is to
bo regarded as a not less fidl and complete than it is a humane defence
when satisfactorily established, and Avhile you should guard against in-
flicting the penalty of crime upon the unfortunate maniac, you should
be equally careful that yon do not suffer an ingenious counterfeit of the
malady to furnish i)rotection to guilt.'
" So, gentlemen of the jury, in a thorough examination of the testi-
mony, apply these i)rinciples touching this subject of ins.initj'. Was
Josei)h Loeffner, at the time of the homicide of Nii-holas Ilorton, capa-
ble of judging between riglit and wrong? Had he the knowledge, at
the time the act was committed, of right and wrong as to the act itself?
Did he know, at the time of the fatal stab in the body of the deceased,
that he was committing crime? Was his knowledge and cai)acity oblit-
erated in the dethronement of reason at the time of the homicide?
These questions arc for you to settle ; and if you find that he could not
distinguish between right and wrong ; that his mental jwwers were de-
stro^'cd — his reason gone — you will find him insane. If, on the coii-
tr.iry, you find that he did know that his act was wrong, that it was
criminal, then no matter what may have been his di-pravity of nature,
his feebleness of intellect, his want of capacity or the degradation of
his morals, his act was a homicide for which he is responsible to the
law, according as you find the degree of guilt.
•' In examining the testimony touching upon these grave ami impor-
tant (luestions of insanity, it will be necessary for 3'ou to consider all
the circumstances of the commission of the act itself. Do these show
the act to be one of a rational being who knew what he was about —
who knew that it was wrong so to do, and who knew he must be respon-
sii.le for the consequences? Did he act in such a way as convinces
3-our minds that it was the act of a sane mind? Was the act produced
in such a way as a murderer Avould accomplish, or was it the act of an
insane being, according to the law? Take also into consideration all
that has been testified to in reference to his history — how he lived in
Germany ; his boyhood ; the condition of his maternal parent ; how he
came to this country ; his conduct and behavior when here ; his mar-
riage ; his conduct to his wife ; the homicide of his wife ; his conduct
to ]\Ir. Ilorton and family ; his conversation ; his deportment before, at
the time and after the commission of the crime. Examine with care
liW.llT TO Ol'EX AND ( Lusi:
137
Test; IJiirdcii of I'roof.
y 111 fnr,('.s
lllllstilllCOS
i all otiu r
iinity is (o
10 di'foiicc
ijiainst i li-
on slloiilil
ffitoftlK'
tlic testi-
fy. \\'ns
on, capa-
•lodgo, ill
ict itself?
Icceased,
!ity oblit-
onilcide?
3oiil(l not
were de-
tlic coii-
flt it WiXH
■ natnre,
at ion of
e to tile
1 impor-
sider all
se show
ibont —
respon-
Jiivinccs
rod need
,'t of ail
ition all
lived ill
how he
is mar-
jondnct
fore, at
th care
tlio opinions of Ids acqnaintancos as to his sanity ; scrntinize well, too,
the oiiinions of the learned physicians ; and you must regard these
oiiinions of acquaintances and pliysicians as opinions merely. Thev
nre not, in themselves, positive testimony, though, from the necessity
of the case, they are introduced and allowed for what light they may
throw upon the condition of the defendant. Test, then, these opinions,
and give your imdivided attention to the facts upon the subject. It is
for you to find the truth, and in your verdict so to say."
" The jury found the defendant guilty of murder in the first degree,
in manner and form as charged in the indictment; and sentence of
death was passed upon the prisoner. To reverse the sentence a writ of
error was prosecuted,
Jlassaurerk & Elliott and Wm. L. Spooner, for plaintiff in error.
C. P. Wolcott, Attorney-General, for the State.
lUUTLKY, C. J.
(After passing on other objections.)
7. In the trial of an indictment for murder, the tlefence of insanity
under the plea of not guilty, does not change the nature of the issue so
as to give the affirmative to the defendant, and entitle the defendant to
tlie opening and closing argument to the jury.
8. The accused in a criminal case is not entitled to an acquittal on
the ground of insanity, if at the time of the alleged offence he had
capacity and reason enough left to enable him to distinguish between
right and wrong, and understand the nature of his act, and his relation
to the party injured.
9. As the law presumes every person who has reached the age of
discretion to be of sufficient capacity to be responsible for crime* the
burden of establishing 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 not necessary, however, that this defence be established
beyond a reasonable doubt; it is sufficient if the jury is reasonably
satisfied, by the weight or preponderance of the evidence, that the
accused was insane at the time of the commission of the act.
Judgment of the Court of Common Pleas affirmed.
Swan and Scott, JJ., concurred; Brinkerhoff and Sutuff, JJ.,
dissented on other grounds.
438
THE BURDKX OF TROOF OF INSANITY
Ort Weill v. ('Diiiiiioiiwt'iUtli.
BURDEN OF PROOF — QUANTUM OF PROOF REQUIRED.
OrTWEIX V. COJIMON'WEALTH.
[7G Pa. St. 414.]
Li the Supreme Court of Pennsi/Ivania, January, 1875.
Burden of Proof — Quantum of Proof Required. —On the trial of an Indictment for
murder, where tlie defence is tliat tlie |>risoncr 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<j
iig it undci
icapfililc of
daiiirerous
cases. It
ve ovinccil
it tliis was
been ruled
ce of sucli
oof. (are
py. When
existence
ound state
ns of vio-
it shall lie
ise in this
e given to
enipt was
e death of
any point
aid: "It
en if you
would not
stance in
facts and
le mental
raises no
ide only,
ami whether that alone was evidence of insanity. It adoptccl the very
luiiguaLif used by the court below in Amrriciin Life Ins. C>>. 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<Tlior
degree of proof than the autliorities re(|uire. It may be satisfaciurily
proved by evidence whicli fairly prei)onderate8. To re(|uire it to
" clearly preponderate " is practically saying it must be proved bcyonil
all doubt or uncertainty. Nothing less than this will make it clear to
the jury, and make them conclusively convinced. This is not reciuircd
to satisfy the jnry.'^
It is not necessary that the evidence be so conclusive as to remove all
doubt.^ When one is on trial for his life care must be taken that lie
receives from the court that due protection which the law has wisely
thrown around him. Evidence fairly preponderating is sullicient.
We discover no error in the fourth specification.
Judgment reversed and venire facias de novo awarded.
M
BUEDEN OF PROOF — REASONABLE DOUBT — TEST OF INSANITY —
EVIDENCE OF GOOD CHARACTER— EVIDENCE OF ANOTHER
CRIME.
Hopps V. People.
[31 HI. 385.]
In the Supreme Court of Illinois, April Term, 1863.
Hon. John D. Caton, Chief Justice
" PixKNEY H. Walker,
** Sidney Bkeese,
\ Judges.
1. Burden of Proof— Reasonable Doubt. — A prisoner charged wilh 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 jiroved by the
.State; and therefore, if, on the whole evidence, the jury entertain a i-casonablc doubt
of his sanity, they must acquit. Foster's Case, 23 111. 2i);j, overruled.
2. Test of Insanity. — Wherever It appears from the evidence that at the time of doing
the act charged, the prisoner was atfected with insanity, and such affection was the
> 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(iuire<l
remove all
en that lie
has wisely
;ient.
warded.
SANITY —
ANOTIlEIi
who sets up
h insnnily,
ved by the
able duubt
le of doincr
>n 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-
<iuitt('d.
.;. Evidunoe of tho Uniform Good Charautt'i' "f (lie iin-niici' i> ll<lllll^^lbll■ wlicrc ila>
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-
<li('i', the most important of which we pi-opose to notice.
lie complain.s 111. st that the Circuit Coint would not permit him to '/\vv
ovidencc of his uniform good character as a man and a citizen.
It was, at one time, a disputed question, wlu'ther such evidence could
lie given in a case where, as in this, the homicide is not denied. Souw
of the books say such evidence, if offered, oupht to be restricted to
Ihi' trait of character in issue, or. in other words, should bear some
aiialo'iv to the nature of the charm'.'
To the same effect is 2 Kiissdl on Crimes,- Imt yet lu- says the good
character of an accused party is an ingredient which should always bo
submitted to the consideration of the juiy, along with the other facts
of the case.^
Ill a ease where the defence is insanity we cannot have a doubt that
evidence of uniform good cliaracter as a man and a citi/.en is pivjper
for tlio jury to consider ; whether a person wiiose character has been
uniformly good has, in a sane moment, conunitted the crime charged.
It is undoubtedly true, a sane mnn, whose previous charticter has been
unexceptionable, may commit an atrocii^us homicide, no doubt, may
exist of the fact, yet under his plea of insanity, slionld he not be en-
titled to all the benefit which may be derived from the fact of uniform
good character as tending, slightl}' it may be, to the conclusion that he
could not have been sane at the time the deed was done? Genenilly, a
person of good character does not, of a sudden, fall from a high posi-
1 3Gr. Kv.,8ect. 25.
- p. TiH.
» Jd. 735.
446
THE BURDEN OF PROOF OF INSANITY
IIopps V. People.
tioii to the commission of outrageous crimes ; sliould he do so would it
be ail uiuintural or forced inference that he may have been affectcil
with insanity at the time? But be this as it may, it seems to be now
settled that such evidence, in capital cases, is admissible. In the caso
of CommonweaUh v. Hardy,^ which was a capital case, Pausoxs,
C. J., said a prisoner ought to be permitted to give in evidence his
general character in all cases. SinvKLr. and I'.vitKEU, justices, said they
were not prepared to admit that testimony of general charai-ter should
be admitted in behalf of the defendant, in all criminal i)rosecutio!?':\
but they were clearly of opinion that it might be admitted in capital
cases in favor of life. The same lule was stated in the case of Corn-
moiiwealth v. Webster.- The court there say, it is the privilege of the
accused to put his character in issue or not.
In 2 Bennett & Heard's Leading Cases ^ the cases are collected and
commented on, in which this rule is recognized.
In the case of People v. Vane,'^ the court held that evic'Cuce of
the good character of the defendant on the trial of an indictment, is
alwa3's admissible, though it cannot avail when the evidence against him
is positive and unimpeached ; but when the evidence is circumstiuitial.
or comes from a suspected or impeached witness, proof of good char-
acter is important.
We think, at least in view of the defence relied on, the evidence of
the prisoner's uniform correct bearing, as a man and a citizen, should
have bf' . made known to the jury. A good character is a most pre-
cious possession, and it ought to be permitted, in favor of life, at least,
to go to the jury.
The plaintiff in error also complains, that the prosecution was per-
mitted to prove that about thirty years before the commission of the
crime charged, he had been engaged in a violation of the revenue laws
of the country, by a career of smuggling goods and property to and
from Canada. The prisoui-r insists it was not competent to prove this
offence against him ; that all the facts proper to be proved, should be
strictly relevant to the particular charge, and have no reference to any
of his con<l".ct, not connected with the charge.
This is undoubtedly true as a general principle, but we think such
proof was warranted in this view. The defence being insanity, the
coolness and unconcern of the prisoner at the time he did the fatal act,
was made a prominent feature in the case, and inferences were sought
to be drawn from it, favorable to the plea.
1 2 Mass. 317.
- 5 Cush. 325.
'< ]>. 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 <IonU ^ te ' l'"«'-"tion to prove gnilt
.n'u;:;:!:e':::;;;;::;;i:;' f "'^,f °" *"' '-'" '"""' - ^^"- ■' '^-■=
1.V suflicient Z ^ l,Tt " ""''"^' °""'''"""' ''">"»' ''« "''own
.oasonable well fonnclecl <l„„bt of the sanity of th^ " use r Tl '
iuunanmnid revolts If tlio iM^, ^4! . 'ifcused. lli(.
.^a.a.e,ifo,r,t:::^r=:^;— :-^--
fouiKl to the same , urnort it ^l , ' """"^ """^ "» ''""''t ^e
nevertheless, ZZ ' " '"'^ '^"°^ '"'"y- ""= P--Ple is,
this case. »Uooestions upon a single point in
.:.et;fnrirr;L:!i:— ^^^
1 /-*^
' Com. ... McKee, IGray.fil.
= 23 111.293.
' 2 Ala. 43.
^ 16X. Y.,58.
' 19 Ind. 170.
452
THE BURDEN OF PUOOF OF INSANITY.
IIopps V. People.
duces a shudclcr in every one who is not callous to all sense of justice
and humanity ; and the all-pervadiiig sentiment erf civilized man demaiid^
this rule. Does humanity less demand it in a case where the defence is
insanity than where it is excusable or justifiable homicide? Is it any
less revolting to an enlightened humanity to hang an innocent crazy
man than one who is sane? ' His very helplesst.ess commends him to
the commiseration of mankind. One who, being indicted for murder,
says, true, I killed the man, but I did it in necessarj'- self-defence, sliall
be acquitted if he can raise a reasonable doubt on this question, al-
though the preponderance of evidence is and the probabilities are that
he was the attacking party, and pursued his victim unto death, with
malice aforethought, and shall it be said when the same doubt exists as
to the insanity of the prisoner, he shall be convicted and executed?
The very suggestion is shocking to a sense of even-handed justice.
The question at last returns, is the prisoner guilty or not guilty? If
there is a reasonable doubt of his guilt he must be acquitted. If there
is such doubt of malice all agree that he must have the verdict. If he
Avas insane there could be no malice, and hence, to raise a dou1)t of
sanity is to raise a doubt of malice. Sanity is as necessary to guilt i.s
any other fact, and if there is a reasonable doubt of that there must be
a doubt of guilt. Why should there be an exception to this otherwise
universal rule? I can see none in reason, and it is against the funda-
mental principles of the law. The old common law is silent on this
s^ibject. It is only in modern times that the question has arisen, and
the first who held that insanity was an exception to the rule, ovoi-
turned the rule itself ; but they could not abolish or destroy it. It stiil
remains, and I trust will ever remain, an immovable monument to the
civilization and humanity of our age and country-.
It is said insanity may be simulated. So may any other fictitious
defence be got up to screen the guilty. The evidence in this case is
that it is exceedingly difficult to simulate insanity so as to avoid detec-
tion. It is but very lately that insanity has become a subject of careful
scientific investigation which has made and is making rapid progress.
This investigation enables experts to detect simulated insanity with
much more certainty than could formerly be done.
Shall we ignore and denounce the results of human study and re-
search on this subject, while we recognize and applaud the advancement
1 The chief justice rather mistakes the
•question. It tihould be: "Is It any loss
revolting to an enlightened hunianity to
!'.ang a guilty cruzy man than an innocent
sane one?" Many jiorsons could be found
who wo\il(l roiidjty answer this question iu
the atl'rm itive.
se of justice
nan demand,
le defence is
? Is it any
locent crnz\
leiuls hiin tn
for murder,
efenee, shall
question, al-
ties are that
death, with
ibt exists as
i executed?
justice.
; guilty? If
I. If thoro
diet. If he
! a doul)t of
y to guilt {'.s
;ere must be
s otherwise
the f unda-
lent on this
arisen, and
rule, ovoi-
it. It still
bent to the
|r fictitiou.'
jhis case is
•oid detee-
of careful
progress.
lanity with
|ly and re-
ancemeiit
|uld be found
fiucstion iu
BUKDEN OF rUOOF ON PROSECUTION.
153
Dissent iiii.' Opinion l)y Walker, J.
of science in all other directions? Peoples and governments in all civ-
ilized countries recognize them by the erection of vast asylums for these
nnfortunates, where this science can be carefully studied by those wiio
will devote their lives to the investigation of this subject, where very
many, by careful scientific treatment, are restored, and become useful
members of society. To say that men by careful study and investiga-
tion can acquire no skill on this subject, while the same study and in-
vestigation will constantly develop new truths on all other subjects,
would be a daring assumption upon which we cannot consent to hang a
fellow-man. At the time this question was first brought before the
eourts, it may be that it was in some cases diflficult to detect simulated
insanity, and thus the courts may have been induced to overturn the-
well established law to meet the apprehension ; but this danger, to say
the least, is very much diminished now.
I am well convinced that we should adhere to the old and well estab-
lished rules of the criminal law, and that we should require at least a&
much evidence to convict a crazy man as a sane one.
Mr. Justice Walker dissenting.
I am unable to concur in all of the reasons assigned by the majorit3r
<.f tiie court for reversing this judgment. On the question of the
meiisure of proof necessary to a conviction where the plea of insanity
is interposed, th6re may be a conflict in the authorities, but it will be
found that the current, in fact, all but two cases so far as I can find..
estahlish the rule that the plea must be established by at least a prepon-
derance of evidence. It is a presumption lying at the foundation of
jurisprudence, as well as all the business relations of life, that all men
are of sound mind. This proposition cannot be controverted, and to.
be n voided must be rebutted by evidence.
The plea of insanity, like all other special pleas, confesses the act
charired and avoids the consequence }\v showing circumstances which
establish a defence. Tliis defence, like every other plea whioh con-
fesses and avoids, must be proved. And, in analogy with the practice
under special pleas generally, the proof must devolve upon the party in-
terposing the defence. In this defence the accused admits the homicide^
but alleges that he was incapable of distinguishing right from wrong at,
the time, owing to mental derangement. Having averred the facts;
necessary to his defence, and being required to establish the timth of his
plea, can it be said that he has done so when he has only rendered, it
doubtful whether he was sane or insane. This plea, like all other afflrma-
tive facts, is capable of satisfactory proof. It cannot be that a per-
son is so far insane as not to know right from wrong, and yet those
454
THE BURDEN OF PROOF OF INSANITY.
Hopps V. People.
with whom he associates he ignorant of the fact. Such cases cannot
occur among people of ordinary intelligence and observation.
In the ease of iJcgf. v. Oxfurd,^ Lord Chief Justice Denman announced
the rule tliat all persons must be taken ^j?'/wa/«f/e, to be of sound mind
until the contrary is shown. lie says, "the question is whether tiie
prisoner was laboring under that species of insanity that satisfies the
jury that he was quite unaware of the nature and consequence of tiie
act he was committing, or, in other words, whetlier he was under the
influence of a diseased mind, and was really unconscious at the time ho
was commiting the act that it was a crime." It is here distinctly an-
nounced that the jury must be satisfied, and not merely left in doubt of
the truth of the plea. He says nothing about any species of doubt as
to its truth.
In Great Britain, as late as in June, 184.3, a scries of questions was
propounded to the fifteen judges, on the subject of the defence of in-
sanity, to which they returned answers. In answer to the second ques-
tion they say tiie jury ouglit in all cases to be informed that every man
should be considered of sound mind until the contrary is clearly proved
in evidence. "That before a plea of insanity should be allowed un-
doubted evidence should be achluced that the accused was of diseased
mind, and that at the time he committed the act he was not conscious of
right and wrong." ^ This answer of all the judges of England clearly
establishes the rule of law in the courts of that country to be that the
accused must prove this defence of insanitj' by undoubted evidence of
its truth. It is believed that no well considered case can be found, de-
cided in any British courts announcing a different rule.
In the case of Fisher v. Peoi^ic,''^ this court announced the rule that.
"before such a plea can be allowed to prevail satisfactory evidence
should be offered that the accused, in the language of the criminal code,
was 'affected with insanity,' and at the time he committed the act was
incapable of appreciating its cnormitv." The rule here announced is a
modification of the rule of the British courts, and accords with tlie
current of decisions in this country. Wliilst this is not the unifoiin
rule of the American courts, yet it has been announced by a large ma-
jority. This rule seems to accord with reason and justice, and is well
calculated to protect community against the perpetration of crime, in-
sure the accused a fair trial, and is in accordance with the analogies of
the law.
' 9 C. A p. 525.
2 McNaghten's Case,
Whart, Crim. Law, 46.
3 23 lU. 2S3.
10 CI. & F. 200;
EVIDENCE OF GOOD CHARACTEU ADMISSIULK. * 455
(iiietiii V. Stuto.
;ases cannot
n.
>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 \vici<i'(l and ungovernable passions, resulting not from mental lesion.
Imt solely from evil pa'^sions, constitutes that mental condition which
tlie law al>hors, 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<ne is
committed. The capacit}'' is proved by less than a preponderance of
the evidence ; therefore, the crime itself is proved by less than a pre-
ponderance of the evidence. The plea of insanit}' is not in any sense
like the plea of confession and avoidance. The defendant does notsaj-
liy his plea of insanity: "It is true, I have committed mnider as
charged in the indictment, but I was insane at the time, and therefore
should not be punished therefor ; " for if he committed murder he could
not have been insane ; and if he was insane he could not have committe<l
murder. The two things are wholly inconsistent with each other. But
the defendant does say by the plea : " I am not guilty of murder at all,
nor of any other offence, because I was insane at the time the supposed
offence was committed, and was therefore incapable of connnitting an}-
offence." Neither is the plea of insanit}'^ an affirmative plea on the
part of the defendant. It is merely a part of the negative i)!ea of
'•not guilty." All evidence of insanity is given under this negative
plea of "■ not guilty," and it is given merel}- in the rebuttal of the prima
f(tcie case that the State must make out of guilt and sanity. The de-
fendant is never required to prove that he is not guilty by proving that
he is insane ; but the State must alwaj-s prove that the defendant i^
guilt}'' by proving that he is sane. It is true that the State is not re-
quired in the first instance to introduce evidence to prove sanity, for the
law p-^sumes that all persons are sane, and this presumption of sanity
takes the place of evidence in the first instance. It answers for evi-
dence of sanity on tlie part of the State. But if evidence is introduced
which tends to shake this presumption, the jury must then consider the
same, and its effect upon the main issue of guilty or not guilty, and if,
upon considering the whole of the evidence introduced on the trial,
4r)2
THE BURDEN OF I'UOOF OF INSANITY
State V. Cravvfonl.
together with the presumption of sanity, the presumption of innocence,
and Jill other legal presumptions applicable to the case under tlie e\ 1-
dence, there should be a reasonable doubt as to whellier the defendant
is sane or insane he nnist be acquitted. It is also true that when it is
sliown on the trial of a case that the defendant has committed an act
wliich would be criminal if he were sane, and no evidence of insanity lias
been introduced, a prima facie case of crime and guilt has been madf
out by the State against tlie defendant. But the law does not in sucli ;i
case, nor in any case require tliat the prima facie proof of crime and
guilt made out bj' the State shall prevail, unless it shall be overcome b}- a
preponderance of the evidence. The State nearly always maives out a
prima facie case of crime and guilt before it closes its evidence in chief
and rests its case. But the defendant is never then bound to rebut this
prima facie case by a preponderance of the evidence. He is required
only to raise a reasonable doubt as to his guilt. The burden of proof is
alwavs upon the State, and never shifts from the State to the defendant.
The making out a 2)rima facie case against the defendant does not shift
the burden of proof. With the view that we have taken of this question,
considering it to be governed principally by our own statutes, it makes
but little difference what the common law was upon the subject, or what
sundry courts have supposed it to be ; but we would refer, however,
to the foll<iwing decisions of courts as sustaining the view we have
taken: State v. Bartlelt,^ Hoppsy. People,'^ Chase v. Pe02ile,^ Poik v.
State,^ Stevens v. State,^ People v. Garbutt^^ People v. McCann.'
Smith V. Co7nmomoealth ; ^ and in this connection see Ogletres v State.'^
With regard to the common law, we suppose it will be conceded that it
was a rule of the common law, that it devolved upon the State to prove
the guilt of a defendant in a criminal action bej'oud a reasonable
doubt. We will, also, suppose, for the sake of argument, that said
rule had some exceptions, and that proof of insanity was one of them.
If so, then our statutes have re-enacted the rule of the common Liav
without the exception, and by so doing the statutes have unquestionably
made the rule general and abolished the exceptions.
The judgment was reversed.
Brewer, J., concui'ring.
> 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, 18<!8, being fixed upon
for the ceremony ; that he visited her twice a week, and hud si)ent tlie
evening of Tuesday, September 18th, with her as usual, but whn
informed by his mother on the next day of rumors that Emily was to be
married to La Plante ; that these rumors received confirmation from the
statements of others who added the circumstance that La Plante — whu
would appear to have been in bettor circumstances than the defendant —
had deeded lier forty acres of land ; that defendant came to Detroit on
the day of the homicide, saw La Plante and Emily get into a buggy
together; followed them to a millinery shop where he succeeded in
getting an interview with her which he ilescribcs as follows: —
"I said, 'I iiear you are going to get married to La Plante.' Slio
said, 'Yes.' I said, 'Do you love him better than uie?' She
made no rei)ly. I said, ' Do j'ou love him or his property?' She saiil
nothing. I went closer to her, put m}' arm around her and kissed her.
and said, 'Emma, are j'ou going to do as you promised?' Slio
answered, ' Come up in the morning and I will tell you.' She made no
resistance when I kissed- her, but said : 'You must be careful ' "NVo
parted, and she got into a buggy ; we got to the house No 58 Dubois
Street, from there I don't know where I went. Other evidence showed
that he went immediately for the pistol with which the fatal wound was
inflicted, but it tended to corroborate the statement of the prisoner as
to his engagement, and there was also evidence tending to show that
he was at this time considerably under the influence of liquor.
(Omitting rulings on other points. )
As bearing upon the question of insanity a witness for the defence
who had been in the army with defendant was asked to say whether ho
saw during any engagements, any undue and unnatural excitement
about the defendant. This question was objected to and excluded by
the Recorder, and we think correctly. The opinions of witnesses as to
what is undue and unnatural excitement in time of battle cannot genoi-
ally afford ground for safe conclusions as to a person's mental condition
years afterwards, unless it appears that the excitement actuall}' masterod
the intellect and deprived the person of ac^ iintability. which we do not
understand was pretended here.
Tlie most important questions arise upjn the exclusion by the Ro-
corder of evidence offered to show the insanitj- of a brother of the pris-
oner, and upon his charge to the jury and refusals to charge as requested
on behalf of defendant.
Those questions which relate to the discovery and proof of insanity
igeil to he
[ixod upon
spent the
, but ^va^
was to l)c
111 from tilt'
ite — who
fomlant —
Detroit on
J a bucgy
ccoetled in
.ntc' She
jie ? ' She
She said
kissed lier.
,cdr' She
le made no
eful ' We
1 58 Dubois
lice showed
ivoinid was
prisoner as
show that
r.
lie defence
rhether he
jxcitenient
tcluded by
Icsses as to
jnot gener-
|l condition
' mastered
I wo do nut
|)y tlie Re-
pf the pris-
requesled
jf insanity
HKUKDITARY INSANITY.
465
Evidence of, AdinissUuc.
in criminal cases are perhaps the most difficult of any witli which courts
and juries are compelled to deal. Mental disease is itself so various in
eliaracter, so vague sometimes in its manifestations, and so deceptive,
especially in its early stages, and its causes arc so subtle and so diflicult
to trace, that the most experienced medical men are sometimes ol)ligcd
to confess that however careful and thorough their investigations, they
>till 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 <i;<H>.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 <lei)riva-
tion of und<!rstanding was total, fixed and permanent, or if adventi-
tious, that during the frenzy tbere was a total deprivation of
understanding, so as to deprive the accused of the use of reason as ap-
plied to the act controlling his will, taking away freedom of action, and
rendering him incapable of distinguishing right from wrong at the time
of the offence.
Peck/iani and Watsoyi, for plaintiff in error.
J. E. Webstei', Attorney-General, for the People.
Lakk, C. J.
There are but two errors assigned in this record. The first is tlic re-
fusal of the court to give certain instructions to the jury as to the do
fence of insanity which had been interposed, and of which there was
some evidence. The first instruction recjuested and refused was, " that
the burden of proof is on the prosecution to show sanity."
AVe find the autliorities on this subject very conflicting, but the ques-
tion being an open one in this State, we feel at liberty to adopt that rule
which to our mind seems not only to be founded in reason, but to con-
form to those humane principles which underlie our system of criminal
law.
It is a familiar rule of the common law that to constitute a crime
there must, in almost all cases, be first, a vicious will, and secondly, an
unlawful act consequent upon such vicious will. * And where an indi-
vidual lacks the mental capacity to distinguish right from wrong, in refer-
ence to the particular act complained of, the law will not hold him respon-
sible.2 This mental incapacity may result from various causes, such as
non-age, lunacy or idiocy, and whenever interposed as a defence, the
inquiry is necessarily reduced to a single question of the ability of
1 Broom & Iladley's Com. (Am. etl.) 339.
I Flanagau v. I'eople, 62 N. Y. 4C7; 11 Am.
Rep. 731; State v. Lawrence, 67 Me. 57<;
Com. V. Ueatb, 11 Gray. 303.
CONFLICT 1\ TlIK ALTHOKITIES.
479
Burdeii of Proof on rrisoiicr.
oof is on
e tliat the
iiit. The
311 as fol-
e of the
)t under-
e jury, ill
That the
intent to
ml. That
d by the
dcpfiva-
adventi-
atiou of
on as op-
tion, and
the time
s tlie re-
the d(v
lere was
s, "that
he ques-
thatrule
J to con-
criminal
a crime
idly, an
an indi-
in refer-
irespoii-
such as
nee, the
)ility of
Me. 574;
the accused to distinguisli between right and wrong at the time of
committing the act complained of.i But even where insanity is shown
to exist, and whether it is general or partial, the rule seems to be sul,-
stanlially as charged by the court below, that if there remain a deoree of
reason sutlicient to discern the difference between moral good and
vxd at the time the offence was committed, then the accused is respon-
sible for his acts. 2 *
We now come to the vital question in this case, the point of conflict
in tiie authorities ; the one wherein we cannot approve of the rule 1-iid
down in the court below, which was that "the burden of provin-the
defence of insanity lies upon the accused, * * * and that it must
be proved distinctly ami clearly that the accused was incai,al,leof dislin-
guishing right from wrong," elc. This, to be sure, is tlie rule, substan-
tially, as established in England in 3IcNaghten's Case;-^ and which li-is
been followed by many of the courts in this country. By this rule the bur-
den of this defence is shifted from the prosecution to the defendant
which, we think, ought never to be done.
If the minds of tlie jury be leftiu reasonable doubt as to whether or
not the act charged as criminal was the product of mental disease we
perceive no good reason why the accused should be deprived of the ben-
efit of that doubt. It being conceded that an act produced by insanity
cannot be criminal, it must necessarily follow that whatever uncertainty
or doubt there may be as to the sanity of a defendant, must exist as to
liiB guilt. ' ' Indeed, to make u complete crime cognizable to human laws
there must be both a will and an cutr » We hold the true rule to be
that, whenever there is testimony teiulingto rebut the legal presumption
of insanity, the jury should be instructed, substantially, that unless
thoy are satisfied beyond a reasonable doubt that the act complained of
was not produced by mental disease, the accused should be acquitted on
tlie ground of insanity. ^
We are of opinion, therefore, that this first instruction offered on
behalf of the defendant should have been given ; and that in its rejec-
tion, as well as in giving that portion of the charge above quoted, there
waa manifest eiTor which requires a reversal of tlie judgment.
As to the second instruction, there was no en or in refusino-'to give it
as tendered, nor in giving it as modified by the court. As be?ore stated
the degree of mental unsoundness, in order to exempt a person from
' Freeman r. People, 4 Donio, 28.
s Ho|.|.s,-. IVople, 31111. 385.
= 10 CI. Si v. 21)0.
♦ Broom & ll. Com. (Am. e(l.)339.
■'' State V. Jones, 50 N. IF. 36!t; m A ii. Rep.
242 ; Chase v. People, 40 111. \^■^■l ■ I'eck v.
State, 19 lua. 170; People v. Oiarbuit. 17
Mich. 23.
480
TIIE BURDEN OF PROOF OF INSANITY.
State V. Bartlett.
punishment, must be such as to create an uncontrollable impulse to do
the act charged. But if it be found insutlicient to deiu'ive the accused
of the ability to distinguish right from wrong, he should be held respon-
sible for the consequences of his acts.
The judgment of the court below is reversed and a new trial awarded.
BURDEN OF PROOF ON PROSECUTION.
State v. Bartlett.
(43 N. H. 224.)
In the Supreme Court of New Hampshire, December, 1861.
Hon. Samuel D. Bell, Chief Justice
J. E. Sargent,
Henry A. Bellows,
Charles Doe, 1- Justices.
George W. Nesmith,
William H. Bartlett,
<<
Where insanity is set up as a defence to an indictment, the Jury must be satiefled
beyond reasonable doubc, of the soundness of the prisoner's mind and his capacity to
commit the crime, upon all the evidence bnforo them, regardless of the fact whether il
be adduced by the prosecution, or by the defendant.
Indictment of three counts, substantially charging that the respon-
dent, on the 20th day of June, 18G1, with force and arms, at Upper
Gilmanton, did make an assault upon one Lucien Dice}'', and with a guu
charged witli powder and ball did shoot at and wound said Dicey, ff-
loniouslj'', wilfully, and of his malice aforethought, intending him to kill
and murder.
The defence of the prisoner, in part, was, that at the time of the sup-
posed commission of the offence he was a monomaniac upon the sulijoct
of the infidelity of his wife, imputing an improper connection between
her and the said Dicey.
Upon this part of the defence, the counsel for the prisoner requested
the court to charge the jury : —
1. "That if upon the whole evidence they are of the opinion that it
was more probable that the prisoner was insane so as not to be respon-
sible for his acts, than that he was sane, they ought to find him not
guilty by reason of insanity.
ilse to do
J acciisod
d respon-
awarded.
STATE V. r.AllTLETT.
4.^1
96*1.
)e satic'fled
capacity to
: whettaur il
respon-
it Upi)cr
ith a gun
|icey, fc-
to kill
jthesup-
SUl)jC'Ct
Ibetween
[quested
that it
|respon-
lim not
lustniftioiis Refused and (iivtii.
2. " That though if the jury find the prisoner committed tiie offence,
tlie burden of the proof is on him to remove tlie natural presumption of
sanity, yet that tlie jury must be sali.sfii'd beyond a reasonable doubt
that he was a sane man and responsible for his acts, or it is their duty
to find him not guilty, by reason of insanity."
Among other things, the court did say to the jury: " That a man is
not to be excused from responsibility, if he has capacity and reason
sutBcient to enable him to distiuguisli between right and wrong, as to
the particular act he is then doing. He must have a knowledge or con-
sciousness tliat the act he is doing is wrong and criminal, and will sub-
JL'ft him to punishment. In order to be responsible, he must have
sufficient power of memory to recollect the relation in which he stands
to others, and in which others stand to him ; that the act he is doing is
contrary to the dictates of justice and right, injurious to others, and a
violation of the dictates of duty.
"On the contrary, although the person may 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 sufTicient to apply that knowledge to his own ease,
and to know, if he does the act, he will do wrong and receive punish-
ment, such partial insanity is not supposed to exempt him from respon-
sibility for criminal acts. If it be proved to the satisfaction of the jurj-,
that the mind of the accused was in a diseased and unsound slate, the
question will be, whether the disease existed to so high a degne that,
for the time being, it overwhelmed the reason, conscience and judgment,
and whether the prisoner, in committing the act, acted from an irre-
sistible and uncontrollable impulse.
"If so, the act was not the act of a voluntary agent, but the involun-
tary act of the body, without the concurrence of the mind directing it.
Every man is to be presumed to be sane, and to possess a sufficient de-
gree of reason to be responsible for his crimes, until the contrary be
proved to the satisfaction of the jury, and to establish a defence on the
ground of insanity, it must be clearly proved that, at the time of com-
mitting the act, the party accused was lal)oring 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 he did not know what
was wrong ; and that he was not therefore a moral agent, responsible in
a legal sense for his acts, and a proper subject for punishment. One
kind of insanity known to our law was "monomania," where the mifid,
in a diseased state, broods OA'er one idea, and cannot be reasoned out
of it ; and in this case, in order to find the act of the prisoner, if com-
31
482
THE BURDEN OF PROOF OF INSANITY.
State V. Bartlott.
mittcd by him, to be not criminal, the jury must be clearly satisfied it
was the result of the disease, and not of a mind capable of choosing ;
that it was the result of uncontrollable impulse, and not of a person
acted upon by motives, and governed by the will.
" On the other hand, it devolved upon the State to siiow that the pris-
oner committed the act as charged, with the malicious intent to kill ;
and that the Jury must be satisfied of the existence of such malice, at
the time, beyond a reasonable doubt, in the prisoner, and that he had
sufficient degree of mental capacity or sanity, as to render him a tit
subject of punishment upon the principles before suggested."
The court declining to charge otherwise than as before stated, the
counsel for the prisoner excepted. The jury having rendered their vei-
dict against the prisoner, he moved that the verdict be set aside, and
for a new trial.
E. A. Hibbard, for the respondent.
Blair ^ for the State.
Bellows, J. — The defendant's counsel requested the court to charge
the jury that if it was more probable that the prisoner was insane than
otherwise, it was their duty to find him not guilty by reason of insanity ;
and, also, that although the burden was on the prisoner to reinovo
the natural presumption of sanity, the jury must be satisfied, beyond
a reasonable doubt, that he was a sane man, or else acquit him.
But the court declined to charge the jury according to either request,
unless it be found in the direction " that the jury must be satisfied of
the existence of such malice at the time bej'ond a reasonable doubt, in
the prisoner, and that he had a sufl3cient degree of mental capacity or
sanity to render him a fit subject of punishment, upon the principles
before suggested."
If the term " beyond a reasonable doubt" could be applied to the
finding of the jury in respect to the sanity of the prisoner, it must be
regarded as a full compliance with both branches of the request;
because if his sanity was established beyond all reasonable doubt, there
could be no ground to claim that he was probably insane. But we
think the term "beyond a reasonable doubt " cannot be so applied, oral
least not necessarily ; and this is indicted by other parts of the charge,
in which it is stated, in substance, that to ovijrcome the presumption of
sanity, it must be clearly proved that the prisoner was laboring under a
disease of mind as to render him unable to discriminate between riglit
and wrong; and again, that to find the act not criminal, they must lie
clearly satisfied tliatit was the I'cstdt of the disiease, and not of a niiiul
capable of choosing. It must be taken, Ihoii, that the judge declined
BURDEN OF PROOF ON PROSECUTION.
481)
Arguments In Support of this Rule
itisfied it
hoosinff ;
a person
, the pris-
it to kill ;
nalice, nt
,t he hail
him a Ut
bated, the
their vci -
iside, and
to charge
isane than
insanity ;
o remove
, beyond
sr request,
itisfied of
doubt, in
ipacity or
Iprinciplcs
led to the
must be
request ;
ibt, there
But wo
|lied, or at
charge,
iption of
under a
en right
must be
If a mind
declined
to charge the jury that it would be sufficient if the prisoner's evidence
rendered it more probable that he was insane than otherwise ; or that
they must be satisfied beyond a reasonable doubt that he was sane, and
responsible for his acts. It must be taken, also, that evidence had been
adduced tending to prove the prisoner's insanity ; otherwise there was
no occasion to give any instructions upon the subject.
Upon this state of the case, two questions arise : —
1. Is it enough that the proof should render the insanity more prob-
able than otherwise ?
2. Ought the prisoner to be found guilty, when, upon the whole evi-
dence, there is a reasonable doubt of his sanity?
Upon a careful examination of the questions, both upon principle and
authority, we are of the opinion that the jury ought not to return a ver-
dict of guilty, so long as a reasonable doubt rests in their minds of the
prisoner's capacity to commit the offence charged, and this, of course,
is an answer to both questions. Nor do we think it at all material
whether the proof of insanity comes from the Government or the accused,
or part from each ; but, however adduced, it is incumbent upon the
l)rosecutor to satisfy the jury beyond a reasonable doubt of the exis-
tence of all the elements, including the necessar}' soundness of mind,
that constitute the offence. "NVe arc aware that there is conflict in the
adjudged cases upon this subject, and that highly respectable autliori-
ties have maintained that when insanit}' is Sfct up as a defence, the burden
of proof is thrown upon the respondent, by force of the natural pre-
sumption of sanity, and that he must establish his defence by a pre-
ponderating weight of evidence ; and that some cases have even gone
so far as to hold that it must be sufficient to remove all reasonable doubt
of the insanity, as in the case of State v. Spencer,^ but we are unable to
assent to either view, for reasons which we shall proceed to state.
The rule in criminal cases requiring the prosecutor to establish the
guilt of the accused beyond a reasonable doubt, has its origin in the
humane maxim, that it is better that many guilty persons escape than
that one innocent person should suffer. This maxim, obviously, is not
founded upon any technical rule or system of pleading, but is bavsed
upon the broad principles of justice, which forbid the infliction of pun-
ishment until the commission of the crime is to a reasonable certainty
established.
It has received the sanction of the most enlightened jurists in all
civilized communities, and in all ages ; and with the increasing regard
> 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<rlitened conscience,
would be giving to mere foim a weight wholly inconsistent with the
humane spirit of our criminal laws. In the opinion of Tindali., C. J.,
1)efore cited, which was given without argument, and without the atten-
tion of the court being distinctly drawn to this point, it is by no means
clear that any different rule, as to the quantity of evidence, was intended
to be announced, although there may be some expression tending that
way.
In Commomvealth v. York,^ it was decided that the malice was to be
uifcrred from a wilful and voluntary killing, unless it was proved by a
preponderance of evidence, by the accused, that the act was done in an
affray in the heat of bhxjd. The opinion was pronounced by Siiaw, C.
J., after a most able and thorough examination of the authorities, and
it is apparent that he gave great weight to the statement of Sir Michael
Foster, which we have cited. The court, however, were not unanimous,
Wilde, J., having delivered an able dissenting opinion. I:, the previous
case of Commontveolth v. lingers,- it was held that the oidinary pre-
sumption of sanity must stand, until rebutted either by evidence offered
by Government or by the pris',;i:;r; and in either case, the evidence must
be sufficient to establish the fact of insanity. Subsequently, in Com-
monicealth v. Ilaickins,^ the doctrine of Commomvealth v. York was re-
stricted by SifAW, C. J., to cases where killing was proved, and nothing
else ; but it was held that where the circumstances were fully shown,
tlie burden was upon the State to show the malice be3'-ond a reasonable
doubt. The eases of Commomcealth v. Rogers and Commonwealth v.
York, put upon the same ground the rebutting of malice, by showing
that the act was done during an affray, in the heat of passion, and that
by reason of insanity, the accused was incapable of malice. And it is
quite obvious, we think, that in principle there is no difference ; in both
cases the same element of the crime is proved not to exist, and the in-
(liJ
thJ
1 Mete. 93.
2 7 Mule. 5(M.
J 3 Gray, 463.
BURDEN OF PROOF IX CHI.VIIXAL CASES.
489
The Authorities Reviewed.
(lic'tment therefore is not sustained, and to that effect is the doctrine of
the passage before cited, from Foster's Crown Law.
The general doctrine of Commonwealth v. York has been followed in
several of the American courts, giving it as authority. * The doctrine of
Cummomoealth v. York has since been greatly shaken, if not overthrown,
ill Commomveallh v. 3I<:Kee,^ in an able opinion of Bi(;eluw, J., ft'hich
decided that where evidence of the facts constituting a .iustification
ciuue from both sides, the burden of proof remained on the Cunernment
tlu'oughout, to remove all reasonable doubt of guilt ; and the reasons
assigned apply with equal force, when such evidence all comes from the
|irlsoncr. It is true, that the learned judge says: "• There may Ijc cases
where a defendant relies upon some distinct, substn.u-ial giouiid of de-
feiico, not necessarily connected with the transaction on v.hieh the in-
dictment is founded, in which the burden of proof is shifted upon the
defendant;" and he instances the case of insanity, l)ut expresses no
opinion upon it. It was, however, held in the subsequent case^ that the
Inirden of proof resting on the Government, is sustained so far as the
defendant's mental capacity is concerned, by the presumption of sanity,
iiutii rebutted and overcome by a preponderance of the whole evidence ;
thus giving to the presumption of sanity an effect that is not given bj'^
the doctrine of Commonivealth v. McKee, to the presumption of malice ;
which, nevertheless, as we think, stands upon the same ground. Ac-
cording to these decisions, then, the rule in Massachusetts, as to the
(luautity of evidence to establish a defence, arising from accident or
necessity, now corresponds with the views we entertain ; and with our
construction of the passage cited from Foster's Crown Law; and the
principle of the rule includes, also, the defence arising from insanity, or
inlirmity.
In accordance with our views is the doctrine of People v. McCann,'^
where the subject is most ably discussed. ^
Such, also, we think, has been the course of trials in this State. It
was clearly so on the trial of Corey^ in Cheshire county, for murder, in
1830, October term, before the Superior Court of Judicature, Riciiaud-
soN, C. J., presiding, where the defence set up was insanity. The court
charged the jury that the State had no claim to their verdict until they
were satisfied, beyond all reasonable doubt, that the prisoner was guilty ;
People r. Milgate, .5 Cal. 127 ; Graham v.
rommonwealth, 16 15. Mon. 587; S^ate v.
stark, 1 Strob. 479; Stater. Spencer, 21 N. J.
(L.) 196.
-1 Gray, fil.
^ Commonwealth v. Eddy, 7 Gray, 583.
< 16 N. Y. 58.
6 Ogletieo r. State, 28 Ala. 692; United
States f. McGlue, 1 Curt. 1, 7 Lut Rep. (n. s.)
430, by Sprague, J. ; 1 Am. lead. Cr. Cases
347, and note, and cases cited.
490
THE BURDEN OF PIIOOF OF INiSAMTY
People V. McCann.
and in that case the only question was whether he was insane, the guilt
otherwise being clear.
So was State v. Prescott, tried in Merrimack county, September, 1834,
before Riciiaudson, C. J. In that case, which was for the murder of
Mrs. Cochran, the fact of killing was also clear, and the only dcfen( o
was insanity. The judge charged the jury, that it was their duty not to
pronounce the respondent guilty until every reasonable doubt of his
guilt was removed from their minds. And, again, he said, "we are of
the opinion that if, under all the circumstances of the case, you have
any reasonable ground to suppose that the prisoner could not have had
the use of his reason, you are bound to acquit him."
With these views of the law, and the course of our own courts, there
must be
A new trial.
BUEDEN OF PROOF ON PROSECUTION.
People v. McCann.
[IGN.Y. 58.]
In the Court of Appeals of New Yoi-k, September, 1867.
insfl
foUi
Hon. HiHAM Denio,
" Alexaxdkk S. JonxsoN,
Geohue F. Comstock,
Samuel L. Seldex,
John \V. Bhowx,
Aloxzo C. Pakie,
William II. Siiaxklaxd,
Levi F. IJowkx,
(I
- Judges,
Burdenof Proof— Erroneous chargre. — Ona trijil for murder where the defence was
insanity, the judge charged tlie jury that sanity being the normal state of tlio mimi
there is no presumption of insanity; tliat 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 tlu-
party attempting tlie proof, and tliat they must be satisfied of his insanity beyond a
reasonable doub', ; otherwise tliey must convict. Held, error.
Writ of E^iror to the Sniircme Court.
The prisoner ■«?as iiscHcted for the murder of his \vife. The killing
was not controverted, but the defence rested entirely on the ground thai
he was in a state of insanity at the time the crime was committed.
Evidence was received upon this point, and the presiding judge gave
INSTRUCTIONS AS TO BUKDEN OF PUOOl'.
491
Review of, by Appellate Court
instructions to the jury iu relation thereto which are set forth in the
following opiniori. The prisoner was convicted.
Lyman Tremain and Rnfiis W. PecMum, for the plaintiff in error.
Hamilton Harris, for the Peoi)le.
BowKN, J. — On the trial of the prisoner, the presiding justice
charged tb .r'.ry, among other things, as follows: "The fact of the
killing is •«"!, litted ; that the act was done by the prisoner is not dis-
()iited ; thus the 'ssue is really reversed from the usual one. The ques-
tion of his insanity is matter of positive defence, to be affirmatively
proved ; a failure to prove it is (like the failure to prove any other
fact) the misfortune of the party attempting to make the proof ; and
in this case, as in all cases of fact, you arc not to presume what has not
been proved, under the distinctions and ui)on the principles alread}-
gw^n you. The act being plainly committed, and that the prisoner did
it being undoubted, and the defence set up on his part that he was
insiuie, the burden of the proof is shifted. In the proof of the deed
Itself, if any reasonable doubt be left on your minds, the prisoner is to
be acquitted; but as sanity is the natural state, there is no presumption
of insanity, and the defence mutit be proved beyond a reasonable doubt.
If (canvassing the whole evidence on the legal principle laid down iu the
charge) the prisoner has satisfied 3'ou so far bej'ond a reasonable doubt
that you find that he was at the time of the killing so far really insane
!is not to be responsible (under the distinctions stated to you) for this
particular act, you acquit ; otherwise you cannot."
When an erroneous ruling or an erroneous charge is excepted to, the
judgment is reversed, unless the appellate court is satisfied that the
party could not have been prejudiced thereby ; but this act requires a
reversal only where the coiu't is satisfied that the party has been actually
prejudiced ; and I do not see how the court can ordinarily be thus
satisfied, unless upon a review of the whole evidence introduced upon
the trial, a very small portion of which is before us in this case.
The prisoner's counsel, however, complain of that part of the charge
in which the jury were instructed, in effect, that unless they were satis-
fied, beyond a reasonable doubt, that the prisoner was insane at the
time of the homicide, he was not entitled to a verdict of acciuittal on
that ground. If this part of the charge was erroneous, I think it must
1)0 held that the verdict was, in the language of the statute, "against
law." That the deceased died from blows inflicted by the prisoner was
not disputed upon the trial, the only defence interposed being insanity ;
and as evidence was introduced tending to substantiate the defence, the
492
THE BUIIDEX OF PUOOF OF INSANITY.
Peoplu V. McCiiuu.
verdict should have been predicated upon correct legal rules applicablo
to such defence.
It is a general rule, applicable to all criminal trials, that to warrant a
conviction the evidence should satisfy the jury of the defendant's guiU
beyond a reasonable doubt, and it has been held that there is a distinc-
tion in this respect between civil and criminal cases. This rule is based
upon the presumption of innocence, whi(!h always exists in favor of
every individual charged with the commission of a crime. It is also a
rule, well established by authority, that wliere, in a criminal case, insan-
ity 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 apprehcuil
that the same evidence will establish the defence which would prove in-
sanity in a civil case. The rule requiring tlie evidence to satisfy the
jury beyond a reasonable doulit is one in favor of the individual on
trial charged with crime, and is applicable only to the general conclu-
sion, frc.m the whole evidence, of guilty or not guilty.
In State v. Spencer,^ Chief Justice Ilornblower laid down the rule
that in order to acquit a person on tlie ground of insanity, tiie proof of
insanity, at the time of committing the act, ought to be as clear and
satisfactory as the proof of committing the act ought to be, in order to
find a sane man guilty.
But, with all due deference, I think the rule is incorrect in principle
and contrary to the ancient authorities, especially if, as is said by ele-
mentary writers, a jury is authorized to find a fact, when the effect
will be to charge an individual with a debt, from evidence less satisfac-
tory than when it will convict him of a crime.
In Commomvealth v. Kimball- it was held that a charge, in a criminal
case, that where the Government had made out a prima facie case, it was
incumbent u[)on the defendant to restore himself to that presumption of
innocence in which he was at the commencement of the trial, was erro-
neous, and that the instruction should have been that the burden of
proof was upon the Conunonwealth to prove the guilt of the defendant,
and that he Avas to be presumed to be innocent unless the whole evi-
dence in the case satisfied them he was guilty.
In Commomvealth v. Rogers,^ the defendant was tried on an indictment
for murder, and insanity was set up as a defence ; and after the jury had
retired to consider of their verdict, they returned into court to inquire
whether they must be satisfied beyond a doubt of the insanity of the
prisoner to entitle him to an acquittal. The chief justice, in reiDly, lu-
stra
the
' 21 N. J. (L.) 196.
« 24 Pick. 366.
• 7 Meto. COO.
IJUUDEX OF PUOOF OX PUOSECUIIOX.
41)3
Concurring Opinion of Brown, J.
5 applicable
warrant a
(lant's guilt
is a distino-
ule is based
in favor of
It is also ii
ease, insau-
! is with the
i apprehend
1 prove ill-
satisfy the
dividual on
ral conclu-
n the rule
le proof of
s clear and
in order to
I principle
lid by clo-
the effect
s satisfae-
a criminal
ase, it was
imption of
was ei-ro-
burden of
efendaut,
-vhole evi-
ndictment
jury had
to inquire
ity of the
reply, in-
structed them that if the preponderance of the evidence was in favor of
the insanity o* the prisoner, they would lie authoi'izeil to find him insane.
In Commonivealth \. York^^ the defendant was tried for homicide;
an 1 in answer to a question from the jury whether it was for the pris-
oner to proA-^e provocation, or mutual combat, and whether he was to
lirve the benefit of any doubts upon that subject, the judge wdio pre-
sided at the trial said in reply, among other things, " that the rule of
law is, when the fact of killing is proved to have been committed by
the accused, and nothing further is shown, the presumption of law
is that it is malicious, and an act of murder, and that the proof of mat-
ter of excuse or extenuation lies on the accused ; * * * ^ut when
there is any evidence tending to show excuse or extenuation, it is fen'
the jury to draw the proper inferences of fact from the whole evidence,
and decide the fact, upon which the excuse or extenuation depends, ac-
cording to the preponderance of evidence."
I think the part of the charge complained of is erroneous, and that,
although no exception was taken, the error is such that, under the pro-
visions of the statute above referred lO, the judgment should be re-
versed for that cause ; and if I am right in the above conclusions, it is
unnecessary to consider the other questions in the case.
Brown, J. — I cannot give my assent to the legal presumption em-
braced in the charge of the judge upon the trial of this action ; I
think it at variance with sound reason and the just and humane princi-
ples of the common law. The killing by violence was clearly made out by
the proof, and the defence was ins.inity. The judge, in the charge,
treated the condition of the prisoner's mind as a thing separate from
the act which constituted the crime, and the delusion or defect of rea-
son under which it was alleged the act was committed to be aflirmativeh-
established by the prisoner, like those defences in civil actions which
admit the cause of action, but insist it has been determined by s(mie
subsequent matter; that until the homicide is made out to the satisfac-
tion of the jury, the burden of proof is upon the People, and if there
is any doubt, the prisoner is to have the benefit of it ; but whenever the
killing is proved or admitted, and the question of sanity arises, the issue
and the burden, as well as the party to be benefited by the existence of
a reasonable doubt, are changed. If the principal question, and indeed
the only question litigated, is involved in so much uncertainty that the
jury were unable to say whether the prisoner was sane or insane —
whether, in fact, he was a responsible creature or one without reason.
,£00.
1 9 Mete. 9:! ; 7 Boston L. U. 510.
4J)4
THE liUUDKN OF PKOOF OF INSANITY.
People V. McCanii.
their duty was to convict, and not to acquit. This is the theory of tlic
charge. It is very teclinical and artistic, and strictly api)licable to de-
fences in civil actions upon matter arising snl)sequcnt or separate from
ilio cause of action, but not to crimes wliich consist of acts coui)lo(l
with inlontions animating minds capable of reason and reflection, and
of comi)rehending the distinction between right and wrong. So that
there may be no misapprehension, I quote from the charge as I find it
in the bill of exceptions. " The fact of killing," said the judge, "is
admitted ; that the act was done by the prisoner Is not disputed ; thus
the issue Is really reversed from the usual onf- The question of insan-
ity is matter of positive defence, and it is a defence to be afl3rmativoly
proved ; a failure to prove it is (like the failui*e lo prove any other fact)
the misfortune of the party attempting to make the proof; and in tliis
case, as in all other cases of fact, you are not to presume what has not
been proved, under the distinctions and upon the principles already
given you. The act being plainly committed, and that the prisoner did
it being undoubted, and the defence set up on his part that he was in-
sane, the burden of proof is shifted. In the proof of the deed itself,
if any reasonable doubt be left on your minds, the prisoner is to be ac-
quitted ; but as sanity is the natural state, there is no presumption of
insanity, and the defence must be proved beyond a reasonable doubt.
If (canvassing the whole evidence on the legal principles laid down in
the charge) the prisoner has satisfied you so far, beyond a reasonable
doubt, that you find that he was at the time of the killing so far really
insane as not to be responsible (under the distinctions stated to you)
for this particular act, you acquit; otherwise you cannot."
It certainly is true that sanity is the normal condition of the human
mind, and in dealing with acts criminal or otherwise there can be no
presumption of insanity. But it is not true, I think, upon the traverse
of an indictment for murder, when the defence of insanity is interposed
and the homicide admitted, that the issue is reversed and the burden
shifted. The burden is still the same, and it still remains with the pros-
ecution to show the existence of those requisites or elements which con-
stitute the crime; and of these the intention or mo/?<s ««j'w??/.s of the
prisoner is the principal. The doctrine of the charge proceeds upon
the idea that the homicide is per se criminal ; that the mere destruction
of human life by the act of another is, without any other circumstance,
murder, or some of the degrees of manslaughter. "The fact of kill-
ing," says the judge, "is admitted; that the act was done by the
prisoner is not disputed ; thus the issue is really reversed from the usual
one." It is doubtless true that when the killing by the prisoner is cs-
ti
ill
hi
til
i(|
rJ
ci
ci
sa
bl
t(
11
BUHDEX OF rUOOF OX PIJOSECUTIOX,
4115
Coucurrinjj; Opinion of Brown, J.
Iieory of tlic
icable to do-
■parate from
acts coupled
[lection, niid
ig. So thai
as I find it
judge, "is
auted; tluis
on of insjui-
iflSrmativoly
other fact)
and in this
hat has not
)les already
irisoner did
: he was in-
deed itself,
is to be ac-
iniption of
ible doubt.
down in
reasonable
far really
1 to you)
he human
can be no
e traverse
nterposed
le burden
the pros-
hich con-
ns of the
eds upon
sti'uction
nistanee,
t of kill-
J by tiic
he usual
er is es-
tablished by proof, the law presumes malice and a sufficient understand-
ing and will to do the act. Tlie malicious purpose, the depravity of
heart, the sufficient understanding and will must, however, actually ex-
ist. They are each of them as much of the essence of the crime as the
act of killing. The rule which presumes their existence is a rule of ev-
idence, and nothing else, and when the law presumes their existence, it
recognizes and demands their presence as essential to constitute the
crime. The jury nnist conscientiously believe they exist, or else they
cannot convict. The killing of a human being by another is not neces-
sarily murder or manslaughter. It may be either excusable or justifia-
ble. It may have been effected under either of those conditions referred
to by the elementary writers, in which the will does not join with the
act, and then it is not criminal.
We must be careful to distinguish between what constitutes proof,
including those presumptions which the law regards as equivalent to
proof in a criminal case, and what we understand by the burden of
proof. By the onus probandi, I understand, is meant the obligation
imposed upon a party who alleges the existence of a fact or thing, nec-
essary in the prosecution or defence of an action, to establish it by
proof. It may be proved by the production of evidence in the usual
way ; or the law, under certain circumstances, in certain cases ma}'
presume its existence without proof. But it is nevertheless a part of
the case of the party who alleges its existence, and to be made out be-
yond any reasonable doubt. Whenever it may be presumed to exist, in
the absence of proof, the presumption may be repelled, and overcome
by evidence ; and whenever the repelling proof leaves the fact to be es-
tablished in doubt and uncertainty, the party making the allegation is to
suffer, and not his adversary. Sound memory and discretion at the time
of killing is oftentimes the only material question upon the trial of an
indictment for murder. They are essential elements of the crime, to be
established upon the trial as a part of the case of the prosecution. A
vicious will, without a vicious act, says Blackstone,' is no civil crime.
So, on the other side, an unwarrantable act, without a vicious will, is no
crime at all ; so that to constitute a crime against human laws, there
must be first, a vicious will, and secondly, an unlawful act, consequent
upon such vicious will. If there be a doubt about the act of killing, all
will concede that the prisoner is entitled to the benefit of it ; and if
there be any doubt about the will, the faculty of the prisoner to discern
between right and wrong, why should he be deprived of the benefit of
< 4 Bla. Com. 21.
496
THE BUKDEN OF PROOF OF INSANITY
People V. McCaun.
it, when both the act and the will are necessary to make out the crime ?
The same writer also remarks that where there is a defect of understand-
ing, the will does not join with the act ; for vvheie tliere is no discern
ment there is no choice, and where there is no choice there can be no
act of the will, which is nothing else but a determination of one's choice
to do, or abstain from, a particular action. lie, therefore, that has no
understanding can have no will to guide his conduct. I am not contro-
verting llie legal presumption in favor of sanity until the contrary a[)-
pears. I am not dealing with legal presimiptions of any kind. I am
treating of doubts and uncertainties touching guilt or innocence, wliitli
arise ui)on the trial of most capital offences, and of the obligations
which the law imposes, and which reason and humanity demand, tliut
such doubts and uncertainties shall be removed before there can be ;i
conviction and a consequent deprivation of life.
It is worth while now to turn to the definition if the crime at common
law, as given by the old writers, in order to see of ^v'hat it consists. Tho
statute has introduced some slight modifications, but for all the pnr-
po.'^es of the present inquiry the definition remains the same. It is thus
defined by Sir Edwakd Coke :' " When a person of sound memory and
discrimination unlawfully killeth any reasonable creature, in being, and
under the king's peace, with malice aforethought, express or implied.'"
It is to be remarked that every member of this sentence is of the
weightiest import in determining the constituents of the crime. The
killing must have been effected by a person of sound memory and dis-
cretion. It must have been unlawful killing ; that which is deprived of
life must have been a reasonable creature in being, under the king's
peace, and the killing must have proceeded from malice, expressly
proved or such as the law will imi)ly, which is not so properly spite or
malevolence to the deceased as any evil design in general ; the dictate
of " a wicked, depraved and malignant heart." Every one of these
things must have existed, in order to make out the crime, and they must
be proved or presumed upon the trial to have existed, or the prisoner is
to be acquitted. They are primarily a part of the case for the prosecu-
tion, to be established to the satisfaction of the jur}' beyond any rea-
sonable doubt. The law presumes malice from the mere act of killing,
because the natural and probable consequences of any deliberate act are
presumed to have been intended by the author. But if the proof loaves
it in doubt whether the act was intentional or accidental, if the scales
are so equally balanced that the jury cannot safely determine the ques-
> 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 misapprehen<led them. The prosecutor had con-
ducted the trial upon the theory that the burden was upon him of main-
taining, as a part of that issue, the sanity of the prisoner ; this further
appears from his request, when, anticijiating that the jury might fail
to find the greater offence, the district attorney asked the court to
charge " that if the jury find the wounds were inflicted by the prisoner,
and that he was sane, etc., they would convict of an offence lesser in
degree," and the court complied. Here again, as well as in the pre-
ceding part of the charge, the sanity of the prisoner is made a necessary
element in the definition of the crime.
It therefore was not necessary to comply with the request of the
prisoner's counsel. The substance of the request was embraced in the
charge made, and the court could not be required either to repeat it or
answer again to different portions as analyzed by counsel.
We think the charge will not bear the construction on which the first
point of the appellant rests, and, as the trial was conducted without
enor, the conviction should be affirmed.
All concur, Eakl, J., concurring in result.
Judgment affirmed.
1 76 N. Y. 159.
502
THE BURDEN OF PROOF OF INSANITY.
Dove V. State.
lurden of proof— test lv insanity— experts— hypothetical
case— charge of court — plea of insanity.
Dove v. State.
[3 Ilcisk. 348.]
In the Supreme Court of Tennessee^ January, 1872.
1. Burden of Proof. — Erroneous Instruction. — A charge tiiat " the proof of in!>nnity
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 evi<Ience of the
State is heard on the (jucstion of insanity. If evidence materi.'illy varying the hypo-
tlietical case is afterwards introducad, the defendant must ask leave to re-examine iis
to the new matter. If the new proof docs not make any change in the hypothetical case
submitted, the defendant would not be injured by the refusal.
4. Opinions of Unprofessional Witnesses. — Uniirofessional witnesses may be asked,
after giving the circumsiances and conduct of the party, to state their o|)iniou as to lii^
sanity; and the excluSicn of such evidence oflerec by a defendant is error.
5. Definition. — Plea, for Defence. —It is not error for the (lourt, in its charge, to si)cak
of the defence of insanity set up as a plea of nsanity put in.
6. Plea Admits the Killing-. — In a case where the killing is proved beyond question, for
the judge to charge the jury that the i)lea of iusauity put iu (the defence of insanity)
was an admission of the killing, is not Cx-ror.
Appeal from Montgomery County.
Horace II. Lurton, for the prisoner.
Attorney-General HeisJcell, for the State.
Nicholson, C. J., delivcied the opinion of tiie court.
Ricliard Dove was tried and convicted r.f murder in the first degree,
for killing William Diguins. The jury found that the murder was coin-
mitted with mitigating circumstances, wliereupon he was sentenced to
the penitentiary for life. He has appealed to this cotirt. The case was
tried at the January term, 1871, of the Criminal Court of Montgomery
County, where Mie following evidence was addueed: —
The first witness introduced by the State was Virginia Holland. De-
fendant objected to her examination on the ground that she was liis
wife, but refused to examine her on voir dire, and objected to her ex-
amination by the State to prove her competenc}-. Defendant offered to
prove by evidence aliuitde., that she was his wife. The court gave
IC!
(11
w
^■d-
K--^'
DOVE V. STATE
r){);i
•THETICAL
Tliu Kvidencu in tlie Case.
of of insanity
■inie ouglit to
able doubt a.i
?ient discern
nesj of doing
lurt, on a trial
to submit Ins
idenceof (he
'ig tlie liypo-
e-examine as
Jthetical cast-
ay be askod,
iiion as to lii-
rge, to speak
question, for
of insanity)
5t degrco,
was coin-
ti-'uct'd to
case was
iitgomery
11(1. De-
3 was liis
3 luT ex-
•ffored to
urt gave
leave to prove that fact. Defendant then offered to prove the marriage
of the witness with defendant, by reputation, cohabitation, conduct,
and acknowledgment of the parties.; and tendered proof of that char-
acter, but the court refused to hear such proof, and ruled that a mar-
riage could only be shown by the certificate of marriage, the testimony
of the officer who performed the ceremony, or the evidence of witnesses
who witnessed the performance of the ceremony'. Defendant excepted
to the ruling. Witness then proved that she liad been living with de-
fendant three or four years. They were living in a house in the coaling
ground of Poplar Springs Furnace, in Montgomery, at the time of \Vm.
Diggins' death, which took place in 1809. Dove was working for
Diggins in the coaling grounds. Dove, witness, her two children, her
mother, her sister, and Diggins, all lived in the same house, it having
but one room. There were three beds in the room ; witness and Dove
occupied one, her mother and sister anothe , and Diggins and her oldest
child, seven years old, the third. Dove and Diggins ate supper to-
gether ; they were very friendly ; there wn? no bad feeling between
them; they laughed and talked togethr , and then went to bed, and
were so laughing and talking when witness went to sleep. About two
o'clock at night, witness was awakened by the l)lows being struck by
Dove with an axe, and by the cries of Diggins, who said : " Oh ! Dick ;
1.1;! Dick." Witnes aw and heard Dove strike Diggins two or three
blows with the axe. .^ue jumped up and went to Diggins' bed, saying:
"Dick, you have killed my child! " She pulled the child from under
Diggins. Dove said: "You see what I have done, and it is not the
fust I have done that way. I have done many a one that waj-."
He walked across the floor, and the'i said: "Now, if the old
son-of-a-bitch has any money, I inte.id to take it to travel on;"
and took up Diggins' pants, and took out his pocket-book and
examined it, and said: " IJe's got no money; here's some scrip;
I won't have that; but I'll take his knife;" and did put it in his
pocket. He then threw a blanket over Diggins. Dove then asked wit-
ness Avhat she was going to do ; whether she was going with him, She
replied she did not know; that she didn't wantto go with him. He
then w^ent out, and came in again with the axe in his hand and said :
" Now say what you are going to do, and say it quick. I can't leave
you to witness against me. If you don't go with me I shall see the
last of all of you. You shan't be left for witnesses against inc." He
then told witness's mother to take Diggins' chickens to the Furnace,
about a mile and a half or two miles, and sell them, and collect a half
dollar a negro owed him, and meet him at the Furnace that night at
504
THE BURDKN OF PROOF OP INSANITY.
Dove V. State.
twelve o'clock. Witness, Dove, and her two children then went off
into the woods ; but before leaving. Dove hid the axe under the sill of
the house, where he said it could not l)e found. They stayed in tlio
woods all day. Dove kept the knife in his hand, and said he woul<l
kill witness if she tried to leave him. Late in the evening they went
towards the Furnace, and ui)on getting near the road, she saw Mr.
^Vlathis and ]\Ir. Brown, and she ran to them with her children, and
asked for protection. She went on with them to the Furnace. Dove
had lived with Diggins five or six months. She said Dove was once
jealous of Diggins, but he had been satisfied about that. Di^gii >vas
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<i:ating circumstauces, and the defendant was sen-
tenced to hard labor for life in the penitentiary.
We have searched the record in vain for any semblance of a single
mitigating circumstance. We are forced to the conclusion that the jury
doubted whether the defendant was sane, and being instructed by the
court that such doubt would not justify an acquittal, they gave the de-
fendant the benetit of this doubt, as a mitigating circumstance, by way
of saving him from the gallows. It has been earnestlj' and alil^' pressed
upon us in argument that the doctrine charged by the criminal judge
ought to be adopted from considerations of i)ublic policy. It is con-
ceded that the doctrine ought not to be carried to the extent of sub-
jecting defendant to capital punishment, about the soundness of whose
memory and discretion the juries may have doubts. This, it is admit-
ted, would be too shocking to humanity to be tolerated. But it is in-
sisted that the peace of society and tiie prevention of the repetition of
such horrible tiagedies by defendants wiiose sanity is doubtful would
justify the courts in holding that defendants who rely upon the defence
of insanity should be required to establish their defence be3'ond reason-
able doubt ; otherwise, that they should be held responsible as criminal,
and subjected to imprisonment for life.
The force of this argument is much strengthened by the facts proven
as to the violent character of this defendant. To turn him loose might
be to subject some other innocent victim to the same fate with Diggius.
But this is not the tribunal to which the consideration of public policy
can be appropriately addressed. ^ Our business is to administer and not
to make the law. We find the law well settled that when the State
charges a citizen with crime, his guilt must be established beyond rea-
sonable doubt. We applj' this rule to the worst men, about whose san-
ity no doubt is raised, and turn them loose to repeat their crimes, because
the}' are entitled to the benefit of the humane doctrine of doubts. With
what show of reason or humanity could we reverse the rule as to that
1 The argument tluit it was intended to
urge was, tliat tlie established law of Eng-
land lecoguizud this rule, aud that policy
forbaf" ) a depnrture from it — not that a new
rule should be adopted upon such consider-
ations now. — [REr.
TllK rilKSUMlTION OF SAMTV
513
Throe Theories us to the Hiirdeii of Troof of Insanity.
1 sliookod
e (lefeiid-
loffensive
)eiife fully
ation h:iil
cen llieni
irder was
was soii-
P a single
t the jiiiv
d by tli(>
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).
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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<l long continued intemperate use of ardent spirits, the burden is cjist upon
tlie prisoner of establis'.iing it to be of the latter character." In People v.
HVcrfen," decided in California in ISSI, the judge had charged the jury
that the defence of insanity must be "clearly estal)lished by satisfactory
proof." The Supreme Court held that this was equivalent to " established by
satisfactory proof beyond a reasoiiatile doulit," and was erroneous. " In a late
case, "3 said Siiaiu'stkin, .7., " it was lield to l)e well settled in this State that
insanity, in order to constitute a defence in acriininal action, need not be proved
licyond a reasonable donbt, but that it might be established by mere prepoiuUr-
ating evidence. Is not the expression ' clearly established by satisfactory proof '
the full equivalent of ' <'stablished by satisfactory proof lieyond a reasonable
(loubtV How can a fact lie said to be clearly (■(tablished so long as there is
reasonable doubt whether it is tstablishe<l at all? There can be no reasonable
doubt of a fact, after it has been clearly established by satisfactory proof,
'(.'learly,' according to Webster's detlnitionof it, means in a clear manner, with-
Dut ol)scurity, without oi)struction, without entangleiiieiit or confusion, without
uncertainty, etc., and that is doubtless the sense in which it is poinihirly under-
slood. The dellnition of a reasonable doubt given by C. J. Shaw, which has
iioen generally approved by the courts, is as follows: ' It is that state of the case
wliich, after the entire comparison and consideration of all evidence, leaves the
iiiinils of the jurors in that condition that they cannot say they feel an abiding
conviction to a moral certainty of the truth of tlie charge, ♦ • * a certainty
tliat convinces and directs the understanding and satistles the reason and judg-
ment of those who are l)ound to act conscientiously upon it.' ♦ A juror would
iiave no excuse for saying he did not • feel an abiding conviction to a moral cer-
tiinty' of the truth of a fact which had I'cen 'clearly established l)y satisfactory
proof.' Such proof, if any could, would convince and direct the understanding
and .satisfy the I'cason and judgment of a conscientious juror. Under the in-
structions given it was the duty of the juror to require that the defence of in-
sanity should be proved beyond a reasonable doubt. This was error." But an
instruction that where a person's defence is insanity, this must '* bo satisfac-
torily established, and that by a preponderance of evidence" is correct. " In
other words " said tlie court '< insanity, like any oti.er afflnnative defence relied
ou by a defendant in a criminal case, must be proven to the satisfaction of tlie
> 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 <iiiality of the act, or if he did, did not know tliat the act was wrouii." (hi
appeal tliis instruction was alllriiied principally on the ground that the judge h.nl
afterwards charged the jury tliat " if after a careful survey of all the testimonu
you have a reasonable doubt of tlie defendant's guilt, you willac(iuit him." I'm
this latter charge the Siijireme Court tliought was tantamount to telling the jury
that if they had a reasonable doubt of the prisoner's sanity they should acipul.
§ .'55. Iowa. — 111 Iowa the same rule is established.' In State v. Bruce," an in-
struction that while sanity was presumed, to warrant an ac(iuittal on the grouiui
1 People t'. Messer.'^milh.lil Cal. 347 (IS8-2.)
« St.ile V. Hoyt, M', Conn. liiiO (1878). " The
accuserl introiliiced a witness, an expert
upon the point of insanity, and the court per-
mitted an expert to testify upon tlie haino
subject in behalf of the .State, by way of re-
buttal. The aciMiscd com|>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. .'<tate, 45 Ga. 190 (1872);
Anderson e. State, 42 Oa. 9 (1871).
• 4.'>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 prepon<lcrance of the
wliole evidence in the case, that at the time of committing the homicide, he was
not of sane mind. This is not only required l)y the general rule of law, but is
distinctly Implied in tlie provisions of the Revised Statutes,' that 'when any
person indicted for an offence shall, on trial, be ac<iuilted by the jury by reason
of insanity, the jury, in giving their verdict of uot guilty shall state that it was
iriven for such cause.' The same legal doctrine may be stated in another fornix
of words. The law infers from the fact that a i)risoner is a human being of
' Kriclr. Com.,6Bn9h,362(lS()9); Graham
f. (,'oin., 16 n. Mon. 587 (ISS.")) ; Brown v. Coin.,
14 Bush, 31)8 (187S); Smith r. Com., 1 Uuv.
■iU.
■ State V. Coleman, 27 La. An. 691 (1875).
^ Stuto V. Do Uance (La.), 14 Reporter, 208.
* State t'. Lawrence, 57 Me. 574 (1870).
■'■ Coin. r. Kddy,7Uray,583;Com. r. Heathy
11 tiray, 30:5; Com. v. Kogers, 7 Mete. 500
(1844.)
e 7 Oray, 583 (IKSe.)
' Ch. 137, sect. 12.
518
THE BrjRDP:X OF rilOOF OF INSAMTV
Notes.
stifllclcnt 1120 to 1)0 (lopmod capable of coinnilttlnsr rriinos, the further fact thai
ho is a nasonahlo boiiij;, tliat is, tliat lio is of sauu iiiiiuJ. And proof of tin-
foriiicr fai-t is sudlciont of tlio latter, until tho hitter is disproved by tho prepoii-
ilorauco of evidence. And the liurdeu of thus disprovini; it Is on the prisoner. "
§40. Minnesota. — In this State the burden <f proof is on the prisoner fo
show insanity to tho satisfaetlon of tlie jury.' Jn Stale v. Grejr- tlie jury \vc ic
Instructed that whoro irre.si)()nsil)le drunkenness is relied on as u defence, tlie
burden of provin<j .such drunkenness is ou the defendant, and ho must establish
It l>y 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<iu:re posi-
tive proof; but the jury must believe from
the evidence at least that it exisLs. If tli<'
Jurj' have a reasonable doubt of the guilt of
the defendant, they are to ac(|uit. If the
State makes out but a doubtful case, the
jury will acquit. lUit this doctrine of doulit
has not been carrieil to the extent that if tlio
defendant makes out but a doubtful defcctf,
they must acquit." p. 464 (185.5)
* State V. Payne, 86 N. C. OOi) (IS82) ; State
V. Starling, 6 Jones (L.) 3CG (18.51)).
6 State f. Payne, 86 N. C. 601) (1882).
• Loeffneri'. State, 10 Ohio St. 598 (1857).
7 Rond r. State, 23 Ohio St. 34U (1S72).
8 31 Ohio St. Ill (1876).
her fact that
proof of llic
the propoii-
e prisoucr."
' prisoner to
lie jury were
defence, tlic
isL cstal)li.sli
•poiuh'rancc
ire tlian ' .at
repoiidcratc
u of the evi-
)crscn to an
to the reas-
[itisned " of
satisfaction,
ury tiiat the
of tlie evi-
t was said :
jury tliat if
tiicy should
)nlrary, in-
ineundx'iit
f evidence.
n licrtjin v.
as follows:
of insanity
accused af-
ts that tills
iw. If the
Ijclieve from
i»ts. If Ihi-
the guilt (if
liiit. If llic
il case, tlie
inc of (l(iiili(
It that if llio
fuldefc,<ce,
)
1S82) ; Stale
').
1882).
WS (1857).
(1S72).
BURDEN or PROOF ON TRISOXER.
519
Kiile in Ohio.
question was an open one a majority of the court would l)e in favor of tlie rule
as it stands, and inasmuch as tiie nde has l)een so lonu: estal)lislied and so re-
peatedly recoiridzed in this State, as shown l)y tlie cases below cited, tlie court
is nnaninious in tlie opinion tliat it sliould not be clian^ed hy judicial action."
IiiFrtrmrv. Stnte,^ decided in Oliio in IHtui, it is .said on tliis point: "Tlie court
luiowchariied the jury that when tlie plea of insanity is set up, tlie defence must
be estabii.^hed by a prepondeniiice of testimony — tliat the insanity must lie af-
lirinatively proved. JJut taliinii tlie wliole charj^e together, I do not tliink tlie
Miise of tliese words is so extensive as counsel appear to construe it. Tlie court
ciiaracterized the old rule re(|uiriii.ii insanity to be jiroved beyond all reasonable
doubt, as ti doctrine wliich, though useful in its time, is loo hard to uphold, and
I cannot see that a rea.sonable doubt of a prisoner's sjinity can legally arise ex-
<(l)t upon a pre|)onderance of testimony. A mere preponderance of testimony
as to tlie jiuilt of a person will not satisfy the law; there must be sueii a pre-
lioiiderance as removes all reasonable doubt, lint as we understand the court
1 (low, a mere iirepondenince of testimony in favor of insanity may raise a rea-
sonable doubt of fjiiilt, thoutih such jireponderance may not prove in.sanity be-
yond a reasonable doubt. I think this tlie true sense of what was charjied in
tills case; and 1 do not discover any reason for setting asiile the verdict so far
as tills particular instruction is concerned. Secontlly. As to the dejjree of proof.
Nothini? ca.i l)e better settled than that insanity must be clearly proved. If the
testimony only raises a reasonable; doubt of sanity tlie defence fails. But what
is ' clear i>»'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 <iuestion is, was he sane when
iu! committed it ? the law presumes liim sane until the contrary is in like man-
ner establislied. And again: ' Tlie proof of in.sanity at the time of committing
tiie act ought to be as clear and satisfactory, in order to acipiit him on the
Lrround of insanity, as the proof of cominittiiig the act ought to be, in order to
Ihid a sane man guilty.' This detlnition of tlie term ' clearly proved,' has been
(|iiestioned, and it .seems to me justly. ' Clearly proved ' a'",! ' jiroved bej-ond
a reasonable doubt ' have not, I think, been genenilly considered .as convertible
terms. The latter, if I am not mistaken, has usually been held to imply a higher
degree of certainty tlian the former. If tlieprei)onderanceof testimony is clearly
on the side of insanity, tlie fact ought, in my judgment, to be considered as
clearly jiroved, although there is a reasonable doubt of its existence. No act is
a crime unless perpetrated by an accountable being, and if we were to apply the
same rule to the question of sanity thtvt we do to all otlier facts neces.sary to con-
stitute a crime, we would have to hold that a reasonable doubt of .sanity is snffl-
( ieiit to aecpiit. But a different rule has always prevailed, and wisely. It is
carrying tlic distinction far enongh, liowever, and as far as public policy, upon
whieli it Is founded, requires, when we say that insanity must be established by
a clear preponderance of proof."
' 2 Ohio St. 70.
« 21 N. J. (L.) 196.
520
THE BURDEN OF PKOOF OP INSANITY.
Notes.
§ 4 1. Pennsylvania. — In Pt-iinsylvanlii It Is not necessary tlmt tlie jury should
be siilislled of tlie insiinity of tin; uceused lieyoud a reasonable doubt, but there
must be proof tliat is satisfactory, sueh as flows fairly fnini a preponderanet; of
evidence.' In Mnernw Commonicealth,'' it is said by Acjxkw, (J. J., deliverini;tlie
judjinu'iit of the Supreme Court : •'Tliero is one error, for which tiie senteuci; in
tids case must be reversed. It appears in several parts of the char;;e, loavluj; iii>
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<l. Tliis statement is too strinjieut, and
throws tlie i)risoner upon a decree of jiroof beyond the les:al measure of his de-
fence. Tliat measure is simply proof which is satisfactory — sueli as flows
fairly from a preponderance of the evidence. It need not be beyontl a donhi.
A reasonable doulit of the fact of insanity, on tlic other hand, is not siiflicieiit to
ac<|Uit upon a defence of insanity. This has been Iieid in several cases. ^ Sanity
beinii a normal condition of men, and insanity a defence set up to an act wliicli
would otherwise Ije a crime, the Ixirtlieii rests up<m tlie prisoner of provinj^ his
abnormal condition. But tlie evidence of this need be only satisfactory, and the
conclusion such as fairly results from the evidence. Wliere the evidenco raises
a baiaiHMUii (|uestioi;, and tlie mind is brou'rlit to determine its preponderance,
there may be a doul)t still existing in the mind, yet the actual weijjht may be
with the prisoner; and this proof sliould be considered satisfactory. Incases
of conflictinjj evidence the pn'ponderanco must fjovern, tliero bein<j no oilier
rational means of decision. But if wo say in sucli a case it must be satisfactory
beyond a reasonable doubt, it is evident llio cxi)ression implies more than a mere
preponderance. It is difTlcult to detino the i)recise difference between the two
measures, yet we are conscious in our own minds tliat to be convinced beyond a
reasoual)le doubt Is a severer test of belief tlian to be satisfied that the prepon-
derance falls on that side. Probably the true rt'ason of the dilllculty in defining
the difference lies in tlie inability to define a reasonable doul)t. A reasonable
doubt must be an houcst and conscientious dilllculty in believiusr — one not
merely subtle or ingenious; it must arise out of the evidence and not be fanci-
ful, or be conjured up to escape conseciuences. It must strike the mind with
such force as to compel it to pause in yielding belief. Tliese tiro characteris-
tics, but do not define the measure of belief, Avhich is beyond a reasonable doubt.
The judge stated well all these characteristics, and yet in conclusion said, by
way of illustration of his nu-auing: 'If the beam waver, then the doubt is
t'lrowni into the defendant's scale; but the jury must not so hold the beam as to
cause it to tremble citlier in favor of the Commonwealth or the defendant.'
Now, if we apply this illustration of the reasonable doubt which operates to ac-
quit a prisoner, to the evidence of his iusauity, and say that his proof of the fact
t;i
w
' Myers v. Com., 83 Pa. St. 141 ; Pannell r.
Com., m Id. 260 (1878) ; Sayres t: Com.. 88 Jd.
201 (1879); Brown r. ("om., 78 Pa. St. 123
(1875); Com. r. Wiiincmore, 1 Brewst. :J56
(1867); Com. r. Hart, 2 Brewst. .517 (1S(«);
Ortwein v Com., 76 Pa. St. 414 (1875) ; Lyncli
r. Com.. 77 Pa. St. 206 (1874) ; Coyle r. Com.,
ante, p. 441.
•■' S.! Pa. St. 141.
3 oriwein r. Com., 76 Pa. St. 414; Lynch
r. Com., 77 Id. 206; Brown v. Com., 78 Id.
122.
jury should
t, but tlu'if
nduriincc uf
livcrlniitlic
Hontcuci! ill
, leaving; no
1. It must,
in/TC'iuli iii-
itniclL'dtlif
risoncr was
indent, and
.^ of lii.s (le-
ch as (lows
nd ii doiilit.
■iufllck'iit to
•s.^ {SiUiity
II act wlii( li
provnif^ liis
iry, and tW
L'uco raists
londcrancc,
j?ht may l)t'
•. In cases
juc no other
satisfactory
lian a mere
n tiie two
beyond a
he prepon-
in detininji
rcasoiuiljlo
— one Hot
1)0 faiu'i-
nind with
aracteris-
il)!c doubt,
n said, l)y
doubt is
yearn as to
efcndant.'
ites to ac-
)f the fact
■le V. Com.,
414; Lynoh
om. , Td JU.
BUUDEN ON TIIE ACrUSKI).
'i>'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 <io down
i|uickly. It sei'iiis to us, therefore, that this expressioii, so often repeated to
the jury, must have impressed tliein with a belief that a hiirh measure of proof
i>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 askin<?far too hijih a dcjjree of certainty. It is
not necessary that the proof of insanity should be so conclusive as to remove
all doubt. It may be establislied by satisfactory and fairly pre|.onderatinf; testi-
mony." \n Satirps \. Commomccnlth,'^ tlie court instructed the jury that " the
( videuce which is intended to establish the defence of insanity must be satisfac-
tory to the jury, and the conclusion such as fairly results from the evidence."
This instruction was approved on appeal.
ij 45. Virgrlnla. — Insanity as a defence must be proved upon the whole evi-
dence to the satisfaction of the jury.^
§4(1. West Virgrlnla. — In Strauder v. State,* W\c trial court instructed the
jury as follows: " To entitle the jirisoner to an acquittal upon the <?round that
lie was insane at the time of the commission of tlie offence charged in the indict-
ment, such Insanity must be proven to the satisfaction of the jury, though In
passing upon this question they may look at the whole evidence in the case, as
well that for the State as the prisoner." On appeal tliis instruction was ap-
proved. "This conclusion is, I tliink," said GitKKX, I'., "sustained not only
by the wciglit of authority but also by sound reason. When the State proves the
corpus delicti, and that the act was done by the accused, it has made out its case.
.\nd if tiie prisoner relies on the defence of insanity, he must prove It to the sat-
isfaction of the jury. This rule is necessary to protect the public Interests and
is just to the accused."
1 86Pa. St. 260(1878).
• SS I'a. St. 2;)1 (1879) ; reported below,
Commonwealth v. Sayres, 12 Phila. 553 (1879.)
' Boswell t<. Com., 20 Gratt. 860; Dcjar-
nctte t'. Com., 75 \%. S(;7; ISar .igalu|i<j v.
Com., 3.'U;ratt, M)7.
* II \V. Va. 715; see post, p. 87:5.
.')1>2
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;
<teclaration «if the deceased, conilrnu'tl by other cviilence, the prisoner, who had
been for some time ciiaslnijhis wife, lireda |iisto| at her — she fell — tlic prisoner
pnllcd lur np and they procecdt'd u few y.ards, when lie pnslied her down aiil
Inflicted a wonnd on her throat witli u knife, lie then ;:{)t over the hed;r<' Into a
Held, and ran some distance ;,iitil he was overtaken by a person who had seen
the woman fall. The prisoner wiped the blood off his hands, saying he had met
with a misfortnne and ent his tinker. He wonid not tell wliat he had done with
the pistol and knife, bnt said: " I did It. I intended to do it, and that will piii
an end to it. I liave been nnhappy since riiristmas." He afterwards l>ci:an to
talk about his family affairs. To anotlur witness who came up soon after, ami
wlio calh<l the prisoner's attention to th« blood on hl.s hands, saying, «• There i-i
your wife's blood, are yon not ashamed of yourself ? " the prisoner replied : " If
yon knew ail the cireumstances, yon would not blame me so much." At the
time the prisonc sliot and cut his wife, he must have known that persons wore
witliin a short distance, having just before met tliem in the road. The woman
livi'd until the 'J!)th of .May. On the 8th the prisoner had an interview with his
wife, who said to him: " I foriiive you all vou h:ive done, but ! shall never see
yo\i any more." The prisoner afterwards oh n'rved to the constable: •' I wonder
what my wif*- meant when she siiid she should never see mo any more. Do y:v.;
suppose she means if slie were to die, I should be limned, or if she -rets well, I
shall be transjjorted for life ? " lie repeated this on the followini; morning, and
also said, lu; liopcd she would get well again for the sake of her family. The
prisoner had threatened to murder his wife before the 7tli of Miy; on the day
before he -as heard sharpening a knife, and tluMleeeased was afterwards seen
running out of the house, followed by the prisoner witli a knife resembling one
found tlie following day near the spot where the muriler was committed. Tlie
prisoner at the lime of the murder was, it appeared, going to Banbury to get
Avork. The deceased's object In going tliere was to consult her friends as to a
.separation between herself and her husband in coiise(]uence of his threats of
violence, but the object of her journey was concealed from her husband. Tlie
prisoner had been confined for two months in Warwick gaol, in the early part of
the year, fi>r 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<ront, he
iW was in-
y or judge.
tion of any
opiuiou of
tlie jildpoH was taken by the House of Lords a few years hack, as to what was to
constitute a (lellnition of insanity, and it created very yreat dilllculty, but after
irreat and anxious deliheration, they came to the eon;liision that the old descrip-
tion was till! best, vi/.. : lli.d. insanity slionld constitnle a defence only wiien a
party was in such a state of mind arlslni; from disease as to b«! incapable of de-
eiilin;; between ri^iit and wroiii;,' but tliat this d.'llnitioii was imperfect, .as .all
ilellnitions must bi , and would re<|uire to be inoditled witli reference to each
p.irtieular ease. Appiyiiiij tliat law to the present c.ise, he tlioimht wh.it tlie jury
liad to consider was, whellier tlie evidence was sncli as to satisfy tlieiii that at
the time tiu; act was eominitled by the prisoner he w.is inca|)able of iiiiderstand-
inu ri;;ht from wrtm;:, as tliat lie could not appreciate the n.iture of tlie act he
was coiiiinittiuLi. J'criiaps it would be ii'Aua lo(» far to say tliat a party was re-
>|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<l been no quarrel of any kind between the husbiwid of the deceased and the
prisoner, as far as was known. When asked why he had killed the woman, he
said: " No one on earth should know bnt the priest," adding that ho rejoiced in
her death, and could then die happy. He also said there was " u man of the
company, absent on furlough, that he would also have shot had be been there; "
but it did not appear from the evidence whether there was a man on furlough or
not. The medical witnesses were cross-examined at considerable length on the
general character and characteristics of the different classes of insanity. The
opinions of Dr. Pritchard on Insane Impulses ' were cited, who says : " The will is
1 3C.&K. 185 (1848).
> 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.' Tal<e the two paragraphs of tlio charge together, there was no
error. The prisoner was l)ound to prove that he was not sane; and whether
insanity is called an afllrmative issue, or it is srated that the burden of proof of
insanity is upon the prisoner, in order to overcome the presumi)tion of sanity, Is
not very material, if the jury are told, as they were in this case, that a reasou-
aljle doubt upon that question entitled the prisoner to an accjuittal. The jury
could not have misunderstood their dutyiinder these instructions, nor have
been misled by them, and if an exception had been taken it must have been
overruled." In Wafjuer v. People,^ the court was asked to charge that, " where
the evidence establishes an hypothesis consistent with the prisoner's insane
state of mind, it is the duty of the jury to adopt that hjniothcsis in accounting
for the killing." To which the court responded: "Of course that Is so, if yoe
have any doubts as to the degree of the offence committed." The prisoner, who
was being tried for the murder of his wife, was convicted and sentenced to
death. On appeal, tiie judgment was alllrmed. "What was meant precisely l)y
this re(iuest," said Hunt, J., " it is difilcult to comprehend. The case is probably
imperfect, as the answer is not entirely responsive to the proposition. It was
l)rol)ably intended to request a charge that, where the evidence estiiblished 'a
state of facts ' consi.stent with the prisoner's insane condition of mind, it was
the duty of the jury to give the prisoner the l)enefit of that evidence, or give
due weight to these facts in accounting for the killing. If so, the request in
the abstract was correct and the proposition implied was reasonable. It was
quite unimportant, liowever, in the present case, for two reasons: First, the
court had already, with great clearness and accuracy, laid down the law upon
the subject of insanity. Among other statements, the judge had used this
language to the jury: 'Every man is presumed to be sane and to possess a
sufficient degree of reason to be responsible for his acts. When the question
of insanity is presented upon the evidence, the prisoner is entitled to the benelit
of any doubt which may arise upon tlie question; tliat is, tlie jury must be
satisfied, beyond all reasonable doubt, that he was sane when he committeil the
act; but if the jury are satisfied, beyond the reasonable doubt, that the prisoner
knew that the nature and quality of the act he was doing was wrong, the law
holds him responsible. I have been requested to charge you that, if the pris-
oner committed the act in a moment of frenzy he cannot be convicted of muriler
in the first degree. I not only charge that i)ropositiou, but if his mind was iu
that condition he cannot be couvictetl of any offence. The true test for respou-
1 4 \h\}. .Vpi). Dec. 508.
BUKDEX OF PKOOF ON PKOHECUTION.
531
Rule iu New York and Tennessee.
sibility for acts committed is commonly knoAvn as the test of right and wrong.
if the jury are .satislied that tlie prisoner knew tlie diff<renee l)etween right
and Avrong, in regard to tlie particular act in ([uestion, tlun tlie law holds him
responsible for ids act. If they are not so satislied, of course it would be their
(hity to ac(|uit him al)solutely.' This, I think, gave the prisoner the full benellt
of the law, as emitraced iu his special reipiest as intended to have been made.
Hut again, the charge of tlie judge on this point, and his answer to tlie special
re«iuest, iu detail and its entire scope, were gratuitous and beyond the righ^^s of
tlie prisoner. The testimony in the case does not furnish a single fitct, idea, or
suggestion on which a claim of insanity can be based. The evidence discloses
tliat on July 22d the prisoner liad been engaged at his work, and in the after
|),irt of the day went into the room where his wife was stayijig. After tlie
lapse of a ^;hort period of time, slirieks and screams were heard, the bystanders
rushed in and found the prisoner in the act of ta!<ing the life of his wife. She
was upon the floor, the prisoner standing or kneeling al)ove her, iuflictiug fre-
<iuent ijlows with a hatcliet, which he left Imbeilded in her l)rain. lie fled a
.short distance, was pursued, arrested, and wlien asked wliy he had committed
siicli a deed, simply answered that he had a cause for it. Tliis is the whole of the
( vidence on this point. We know nothing of tli«! provocation to tiie deed, real
or imaginary. We are ignorant of what took place at the last fatal interview.
We only know the residt. The prisoner was not greatly excited. He gave no
evidence then, or before, or since of any aberration of mind, or even of eccen-
tricity. He was an ordinary uuiuarked m;in, e.xliibiting the usual evidence of
capacity and of sanity, with no eviileuce of delusion, of delirium, or of igno-
rance of his moral or social duties. He simply murdered his wife, cruelly,
lirutally and remor.sele.s.sly. Tlie fact that he had been previously a man
of good character formed no defence to the act, and furnished no evidence
of in.sanity. The case called for no charge on tlie subject of insanity, and no
exception lies for the want of it.' The judgment of the court below should be
idlirmed, anti tlie record remitted to the Supreme Court for further proceedings."
But the doubt which existed iu this State by the uncertain and conflicting
rulings on this (picstion' was effectually put to rest by the recent decision of
the Court of Appeals, in O'Counell v. People,^ In that case it is said that the
prosecution must satisfy the jury " upon the whole evidence that the prisoner was
mentally responsilile; for the affirmation of the issue tendered by the indict-
ment remained with the prosecution to tlie end of the trial." The presumption
of sanity stands until repelled. If the prisoner gives no evidence as to his
insanity, the presumption stands, but if he gives evidence tending to overthrow
the presumption the prosecution must produce answering tcstiniuuy.
§ 57. Tennessee. — In Tennessee, sanity when questioned by evidence, must be •
proved beyond a reasonable doubt by the State.*
1 See WUlis v. People, .32 N. Y. 716.
2 See Lake v. People, 1 Park. 495 (iaV4) ;
People f. McCann, 3 Park. 272 (1857), re-
verseU in People v. MoCaiin, 16 N. Y. 68
(1857) ; Moett v. People, 85 X. Y. 373.
3 87 N. Y. 380.
« Lawless v. State, 4 Lea, 179 (1870) ;
Dove V. State, 3 Heisk. 348 (1872).
532
THE BURDKN OF PROOF OF INSANITY.
Notes.
§ 58, Texas. — In a case In the Court of Appeals of this State It was said:
"Wo do not doom It necessary or incumbent upon us to unravel or attempt to
answer the misty mazes and the metaphysical disquisitions indulged by the
opposing theorists al)out sanity being essential to criminal iutent, and
criminal Intent being essential to punishable crime, nor their equally ab-
struse and obscure views as to which side has the burden of proof when the
faanity of the defendant, from whatever cause, acquires a status in the case."
The court held tliat "tlie evidence of insanity, to warrant an acquittal, should
be sufficiently clear to convince the minds and consciences of the jury." • But
in a more recent case it Is laid down that the burden is on the prisoner in such
cases to establish his insanity by a preponderance of the evidence.'
1 Webb V. State, 9 Tex. Ai)p. 490 (1880) ;
EinK V. State, Id. 653; Johnson v. State, 10
Id. 577 (1881) ; Clark V. State, 8 Id. 350 (1880) ,
Carter v. State, 12 Tex. 500 (1854).
* Jones V. State, 13 Tex. App. 1 (1883).
CHAPTER III.
DRUNKENNESS.
DRUNKENNESS NO EXCUSE — BURDEN OF PROOF.
McKenzie V. State.
[20 Ark. 335.]
In the Supreme Court of Arkansas, December Term, 1870.
Hon. W. W. WiLSiiiRE, Chief Justice.
" LaFAYKTTK GUKUd, 1
" WiM.IA.M M. IIaukison, I
" TitoMAs M. BowEN ^ Associate Justices.
" Joiix McCluhk. I
1. Dninkenness is no Excuse for Crime.
3. The Burden of Proof is on the prisoner who pleads insanity as a defence; and the Jury
are the judges of the weight of the testimony adduced tliereon.
Appeal from Sebastian Circuit Court.
Du Val & King, for appellant, Montgomery, Attorney-general, for
appellee.
GUEGG, J.
(Omitting rulings on other points. )
The second ground is, that the finding of the jury was not warranted
by the evidence, the substance of which follows : —
John Speet testified that he came to Noble's brewery, in Fort Smith,,
and McKenzie, the appellant, and Brown, the deceased, were sitting
near each other at the door of the Brewery. Brown said to McKenzie^
" let us go home." McKenzie called him a d— d son of a bitch, and
told him to kiss (an indecent part of his person). Brown then said, " I
do not wear any pistol." McKenzie said, "You are not able to wear
any such things." McKenzie then put on his shoes and got lip from,
his seat inside the door, stepped back about two steps, raised his coat,
drew a revolver from his side, and said, " You d— d son of a bitch, don't
bother me any more," and shot Brown, who fell. Brown was then
about three steps outside the door. Mrs. Noble testified that as soon
as the pistol fired, she went into the brewery and saw the man in the
back room with a pistol in his hand, and saw the man lying dead out at the
( 533 )
534
DKUNKKNNT.SS.
MrKenxie v. State.
door. Frank Wt'.'^'y testified that he was near the brewery ; saw Hi )wii
standing, and saw liim fall and die, about throe steps out of the door ;
did not see ]McKcn/ie any more until an ofHcerhad sirrosted him. Mrs.
Brown testified that she saw the accused and her husband, the deceased,
on llic 17th of June, 18(;7, near Fort Smith, on the Van Buren road, and
in about three hours thereafter she saw the body of the deceased lying
near Noble's brewer}- ; that on the morning of the same day, she heard
the accused tell deceased that he would kill him that day ; that the ac-
cused then had no pistol, ])ut half an hour afterwards she saw him with
a pistol and lead in his hand ; that she and others came to town with
accused and deceased, in a wagon, soon after diinier ; she knew of no
difficulty between the accused and deceased ; they talked together on
the road ; the accused told deceased to shut his mouth, that he knew
notlung, but she supposed they were joking. Crawford testified that he
knew the accused and deceased; saw them at Fishback's farm, where
they lived, in the forenoon ; they were playing, slapping each other and
running around, and he heard the accused say, " I will kill you before
night." ]\fcKenzic seemed to be drunk ; saw him with a pistol; they
started to town soon after dinner; in the evening he heard that Brown
l.ad been killed. Other witnesses testified as to the killing, the wound,
etc ; but the most material, for the prosecution, was the above alluded
to. All the witnesses showed that they knew of no previous quarrel be-
tween the parties.
The defenda.it introduced several witnesses. The first testified that
the appellant WIS of singular habits of mind; another said he regarded
him as very much broken down, phj-sically and mentally ; had not con-
sidered him in iiis right mind for ninety days, and not more responsible
than II lunatic ; that when drunk he is different from other persons ;
never heard him say anything angry or vicious ; he seemed prostrated ;
he went Avith one Taylor, and they were up much night and day. The
next witness testified that he was a graduate of Maryland Univer-
sity, and had practised medicine for twenty years ; had for several
months known the accused, and he had concluded lie was 8imi)lc-
minded ; and if talking to medical men, he would call him insane — not
in the full sense of that term ; he was of the opinion he was iml)e(;ile to
such an extent as at times to render him unconscious of an}' act, and
that this imbecility was increased bv the excessive use of intoxicating
drinks ; he was of opinion the accused would generally know the differ-
ence between right and wrong, and would be responsible for his acts ;
but it is probable, in his case, that the use of intoxicating drinks to any
great extent would render him totally insane. The next witness said he
M KKXZIK r. .STAli:.
b,io
EvhU'iiff of lusauity,
aw Bk )wn
the door ;
in. Mrs.
defeased,
road, and
asod Iviiiii
she heard
lat the ai-
r him with
town with
new of no
igcther on
t he knew
ied that lie
rni, whtre
otlicr and
'Oil before
stol ; they
11 at Brown
ie wound,
vc alluded
uarrel be-
ified that
regarded
I not con-
jsponsible
persons ;
•ostrated ;
ay. The
UnivcT-
^r several
sirai)le-
me — not
nbeoile to
'■ act, and
oxicatins;
he differ-
his acts ;
ks to any
33 said he
had practised medicine, etc., seventeen years, and had known the r.c-
cused six months, and he was of the opinion his mind was very inucU
impaired from some bad habits, or the conunission of some crime, that
had preyed upon his mind, so as to in-oducc mental 'mbecility ; and that
that would be greatly increased by excessive use of .t ong drnk. The
next testified, that he had seen freaks in the accused that made him
think that he was not a man of sound mind ; and again, he had thought
liim a very intelligent man ; ho is a man of no sense when on a spree, no
reason or control of hini.self Avhen under the influence of liquor ; he saw
liim once when he was putting a band on a gutter, and told him he was
not putting it on very straight; he made no reply, but picked it up and
kissed it; and that witness went and told the foreman that he was " a
perfect -una." This was in March, 18(57; the accused said but little
when sober, and at such times he considered that he would know right
from wrong. Jackson Brooks testiiied that he saw the accused at the
brewery ; he was about the bar pretty much all day, and he '^aw him
drinking " right smart ; " thinks he was sober in the morning, but about
three o'clock he was pretty tight; this was the 17th of June, 1807.
The next witness said, he came to town with the accused, and he took a
glass of beer at the " Last Chance," and again diank at the brewery,
and was pretty drunk ; this was the only time he ever saw him drunk.
The State then introduced a witness, w ho said he had for several months
known the accused, and regarded him not very bright — hardly medium
sense. The next witness said he and the accused were both carpenters,
and worked together in the government shop ; had known him since De-
cember, 18G6 ; was foreman over him, and could not say he ever thought
he wanted sense ; he was a good man and a good meclianic ; that he
knew the witness who said he told him, as foreman, that the accused
was a "perfect luna," and did not remember of his ever having feuch
talk to him. The next witness said the accused had worked for him a
month and a half, and he thought him an ordinarily sensible man. The
next witness said he was a carpenter ; had frequently' seen the accused ;
worked in the shop with him, and never saw anything in him that indi-
cated insanity. The next w itness stated the same. The next said he
had been with the accused every day for two weeks before the kiUing,
and saw no evidence of insanity. The widow of the deceased then tes-
tified that she had never seen any indications of the accused being insane,
and that about a week before the killing she heard the accused sa}', if Le
were to commit murder he would claim to be insane, and when he got
out of it he would be as smart as any of them.
530
DKUNKKNNESS.
McKenzio i'. Stuto.
\7c have V.ius, at length, referred to the 8ul)stanoeof the evidence, bo-
cnusc the principal question ht-re presented is as to the snfllciency of
this evidence to sustain the verdict of murder in the first defrrco. The
rule is well understood that where the State proves beyond a reasonable
doubt that the accused perpetrated the nnirder by lying in wait, or by
other kind of wilful, deliberate, malicious, and premeditated killing, it
is murder in the first degree. The intention is manifested by tiie cir-
cumstances connected with the act of killing. Kxi)ress malice is that
wliich is capable of proof, and malice is implied wiien no considerable
provocation appears, or when all the circumstances of the killing mani-
fest an abandoned and wicked disposition, and this court has decided
that the length of time is not material, so that the killing was the result
of a Avilful, corrupt, and malicious r<tent to take life ; a design thus
formed before the act of killing is suflicient.'
There can be no question, leaving the insanity out of view, but that
the evidence here shows a wilful, intentional killing, and not only a want
of considerable provocation, but without tlie slightest provocation.
Take the entire testimonv, and there is not the sliyrhtest word or act.
from the deceased towards him, in any way calculated to injiu'e him or
arouse his passions. On the other hand, there is some evidence going to
show that he, before and at the time of the killing, was haboring malice
toward tiie deceased. A settled intent to commit the most diabolical
crimes may, and often does, remain secret until an opportunity offers
to carry the wicked purpose into effect. And b}" concealing the malice,
and cause of ill-will that exists, a wicked one can better hope to accom-
plish his purpose and escape punishment ; hence it is wise for the law
to presume that every one Intends the first and natural consequences of
his act.
In this case two witnesses testify to threats made on the morning be-
fore the killing. One cf these same witnesses testified that a week before
the accused declared what he would do in case he should commit mur-
der, and the fact of his preparing himself with a deadly weapon, imnic-
diutciy after making the threats, his impolitic, if not insulting, words
while going to Fort Smith, and the unprovoked attack and killing of
the deceased, certainly well justified th^:- jury in finding that the killing
was wilful, malicious, and premeditated.
To refute this very violent presumption against him, the prisoner at-
tem[)ted to set up that he was then insane, and not conscious of the act
he did.
1 Bivena v. State, 11 Ark. 4C0, Burgess v. Com., Vu. Cases, 483, and 6 Rand. (Va.) 121.
nUUDKN OF PROOF ON I'IMSONKIl.
537
DniukiMiness no Dtfoiic*'
vidoiK'c, br-
iflleiency of
jfiree. Tlie
L reasonable
wait, or by
il killing, it
b^' 11 le cir-
iilici' is that
onsidcrable
illing mani-
as dt'cidcd
s the result
lesign thus
w, but that
3nly a want
rovocation.
ord or acl
ure hira or
ce going to
"ing maUie
; diabolical
tiity offers
he malice,
to aecom-
ir the law
luences of
»rning be-
H'k before
imit mur-
3n, inime-
)g, words
illing of
he killing
soner at-
>f 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<in, C. J.
all this?
ittempting
own by the
l)le him to
question ;
; is wrong,
Duufl mind
For the
nd wiio is
arrived at
1 knew the
eral rule,
nd that is
)n, though
ienness as
shall not
jnkeuness
icr. Nor
inflrmit}-,
> 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
<iay8 afterward arrested. The witness found IVIontgomery badly cut
upon the arms, legs and other parts of the body, and his entrails pro-
truding. He lived but a short time ; stated that Shannahan had killed
him without cause. The deceased had no weapons upon his person, and
so far as tlie circumstances indicate, offered no resistance. The evi-
dence establishes the fact that the appellant, when sober, is a quiet,
peaceable, and industrious man, but when drunk is boisterous, unruly,
and always when in that condition ready to attack friend or foe. There
is no doubt from the proof but that both to.e appellant and the deceased
were under the influence of liquor at the * ne of the killing.
The appellant's counsel relies in his argument upon five different
grounds for the reversal of this case : —
1. Because the verdict is against the evidence.
2. An improper effort upon the part of the attorney for the Common-
wealth to convict the accused.
INTOXIf'ATIOX AS A DIM-'KNCE.
r)r)[)
lustriictions Given iiiul Refused.
man by the
sed, as the
lanner, and
sly worked
lirec drank
ank's gro-
tle refilled,
they were
!ft Shank's
nee, where
?ht o'cloek
about five
permit the
deceased,
ant in the
all nifiht.
tiie quait
s contents
They then
!y reached
)ntgomei'y
n and met
hand and
rough the
s in a few
l>.'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<ed desi-ns
would avail themselves of this very principle of law, by becoming drunk
..1 order to take tiie lives of their fellow-men, with the consciousness on
the part of the offender that his drunlvenness would be the mitigatin-
feature of his case. The recognition of such a rule of law is but an
invitation to men of reckless habits to commit crime; and while their
punishment is by incarceration only, in the State prison for a few years
the sober man, whose cause for revenge and the desire to take humaii
ite therefor, is kept within his own breast, for the commission of a
like offence is made to suffer death. There is no reason or philosophy
that would hang the sober man for murder, and lessen the punishment
of the man mtcxxicatcd for the same offence, because tlie latter had vol-
untarily placed himself in a condition by which he is induced to take
human life.
In the present case the jury were not only told b3- instructions Nos
9 and 10, that drunkenness mitigated the offence by the reducing it
from murder to manslaughter, but they were told by the fourteenth in-
struction, based upon the fact of drunkenness alone, that, "if they
l)olieved appellant was insane at the time of the killing they must
acquit." These instructions were all more favorable to the appellant
than the law or facts of the case authorized.
If one is insane, and while in tliat condition commits an offence he
is not responsible, for the reason that he is not enabled to know vWht
from wrong, and, if he kills, does not know that to take human life" is
wrong ; or as has been held in cases of moral insanity, where from the
existence of some of the natural i)ropensities in such violence it is im-
possible not to yield to them; but voluntary drunkenness, that merely
excites the passions, and stimulates men to the commission of crime in
a case of homicide by one in such a condition, without any provoca-
tion, neither excuses the offence nor mitigates the punishment.
AVe are not to be understood, however, as determining that the fact
of drunkenness in a case like this is incompetent testimony before a jury
upon the question of malice. Malic-e, express or implied, must be
proven in order to constitute the crime of murdei-, and in the absence of
thKs proof no conviction can l.c had for such an offence; and evidence
562
DRUNKENNESS.
Ktuny V. I't'oplc.
as to the condition of the accused at tlie time of the killing, whether
drunk or sober, should be permitted to go to the jury, in connection
with other facts, in determining the question of malice. What wc do
udjudge is, that in the trial of a case like this, the fact of drunkenness,
wliile it may be a circumstance sliowing the absence of malice, should
not be singled out from the other proof, and the Jury told that it miti-
gates the offence. The proper rule is, that one in a state of voluntary
intoxication is subject to the same rule of conduct, and to the same
rules and principles of law that a sober man is ; and that where a prov-
ocation is offered, and the one offering it is killed, if it mitigates the
offence of the man drunk, it should also mitigate the offence of the
man sober.
We feel that public policy, the demands of societ}', and more than
all the wisdom and justice of the law retpiire that the principles herein
established should be adhered to ; and as a different construction is
placed by many upon the law as declared l)y this court in the cases of
Smith V. Commomvealt/i,^ and BUmvi v. Commonwealth," involving
similar questions, those cases are overruled so far as thej' conflict with
the principles of this opinion.
. The judgment of the coio't below is affirmed.
VOLUNTARY INTOXICATION NO DEFENCE.
Kenny v. People.
[31 N. Y. 330.]
In the Court of Appeals of New York, March, 1865.
Hon. IIiRAM Dexio, Chief Judge.
«' IIexky E. Davies,
" William B. Wiuoin,
•loiix K. Porter,
•loiix W. IJitowx, }■ Judges.
Plait Potter,
" \ViLLiAM W. Campbell,
" NoAii Davis, Jr.,
Voluntary intoxication is no defence to criiiie: so long as the oflfender is capable
of conceiving a design he will be pvesumeti lo have intended the natural consequence?
of his acts.
(I
II
1 1 Duv. ^24.
- 7 Uush, S20.
KENNY V. TEOrLE
;>(>;}
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(<xicatio . that would shield from conviction, for an
act which, if committed when sober, lie might be convicted.
The fourth re(piest to charge seems to l)o the most objectionable of
all. It might fairly be implied from a charge made in the language of
that request, that though the act was committed by premeditated design,
if the prisoner's judgment was so obscured i)y liquor that lie was incapa-
l»Ie of knowing the degree of violence he was perpetrating, or properly
calculating its effects, they might liiid it an offence of a lower grade.
What adds to this objection is, that the evidence presents nothing u|)on
wliich to base sucli a cliarge. There is no feature of tlie case, in the
facts or evidence, to warrant a jury to infer that the prisoner was in a
state that rendered him inc!4)ab[e of understanding, or that liis judg-
ment was obscured or impaired by intoxication. It would iiavc l)eeii
iiiqiroper for the court to charge the jury upon a liypotliesis not pre-
sented by the evidence and unwarranted by law, if the evidence did
sustain the hypothesis. As was said in Peoj)le v. Rogers, " if by
a voluntary act, the party temp(jrarily casts off the restraints of reason
and conscience, no wrong is done hiin if lie is considered answerable for
any injury which in that state he may do to others or to society; ''
or, in the language cited from Plowden, in the same case, " if a per-
son that is drunk kills another 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 ignor-
ance was occasioned by his own act and folly, and he might have
avoided it, he shall not be privileged thereby. ' ' '
The crime committed in this case, as was remarked by Brown, J. , " was
committed with circumstances of brutality and atrocity almost unexam-
pled." The evidence justifies the verdict of the jury; the evidence is
clear that the prisoner was sober enough to commit an act to bring liim-
• Plowd. 19.
568
DRUNKENNESS.
Kenny v. People.
self within the meaning of the law defining murder in the first degree,
' ' a premeditated design to effect the death of a human being ; ' ' that he
was sober enough to force his way into the building where his intended
victim was, to trace him from room to room ; to seek to provide himself
with a murderous weapon fitted for the intended work ; of announcing
his intention, and of executing his purpose by a repetition of fatal blows^
and of planning and executing an immediate escape from justice. The
law would indeed suffer re^jroach that did not liold fmch a man sober
enough to suffer the penalty of his crime when fairly convicted. I am
of opinion that no legal error was committed on the trial, and that thf
proceedings should be remitted to the Court of Oyer and Terminer, to
sentence the prisoner anew.
Daviks, J.
(Omitting rulings as to challenge of jurors.)
The requests to charge, made by the prisoner's counsel, were prop-
erly refused by the court. The law, upon the points suggested, has
been settled by adjudication in this court, and no reasons are presented
why the doctrine thus enunciated should be r viewed or disturbed.
The case of People \. Rogerti,^ was well considered, and the doctrine
then declared should be rigidly adhered to. Judge Dexio, in tho
()[)iuion of the court, declares that all the authorities agree upon the
main proposition, namely, that mental aberration, produced by drinking
intoxicating liquors, furnished no immunity for crime.
In Burrow's Case,- the prisoner was indicted for rape, and urged in
his defence that he was in liquor. IIoluoyd, J., in addressing the jury,
said: " It is a maxim in law that if a man gets himself inioxicated hv
is answerable to the consequences, and not excusable on account of any
crime he may commit when infuriated by liquor, provided he was pre-
viously in a fit state of reason to know right from wrong. If, indeed,
the infuriated state at which he arrives should continue and become a
lasting malady, then h^ is not answerable." In the case of Bex v.
Carroll,^ the prisoner was tried in 1825, at the Central Criminal Court
for murder. It appeared that shortly before the homicide the prisoner
was drunk. His counsel, though he admitted that drunkenness could
not excuse the commission of the crime, yet submitted that in a
charge for murder, the material question being whether the act was pre-
meditated or done with sudden heat and impulse, the fact of the party
being intoxicated was a proper circumstance to be taken into considcra-
) 18 N. Y. 9.
2 Lew.C.C. 75 (1823).
» 7 0. & P. 145.
DIIUNKENNESS AS A DEFENCE.
569
The New York Cases Reviewed.
rst degree,
; " that lu'
lis intended
ide himself
mnouncin"-
atal blows,
itice. Tlie
man sober
ted. I am
id that the
iiminer, to
fvere prop-
ested, has
presented
disturbed.
e doctrine
ID, in the
upon the
Y drinking
I urged ill
; the jury,
cicated he
mt of any
i was prc-
f, indeed,
become a
f Rex V.
nal Court
3 prisoner
2ss could
hat in a
; was pre-
the party
onsidera-
\ 145.
tion, but this was repudiated by Pakke, J., and concurred in by Lit-
TLEDALK, J.
In the cas3 of Rogers,^ the prisoner's counsel requested the court to
instruct the jury, " that if they were satisfied that by reason of intoxica-
tion there was no intention or motive to commit the crime of murder,
they should convict the defendant of manslaughter only." Such, in
substance, were the requests to charge in the case at bar. The Court
of General Sessions refused to charge as requested in Rogers' Case, and
this court held the refusal to be right, and said: "If by this request
tlie counsel for the defendant meant, as the request seems to have been
interpreted by the Supreme Court, that the jury should be instructed
to take into consideration the intoxication of the defendant in determin-
ing the intent with which the homicide was committed, the proposition
is not law. It has never yet been held that the crime of murder can be
reduced to manslaughter, by showing that the perpetrator was drunk,
when the same offence, if committed by a sober man, would be murder."
That precise proposition, thus condemned by this court, was embraced
in the fourth request of the prisoner's counsel for the judge to charge.
It was in these words: "If the jury find the accused was in a state of
mind, although caused by the voluntary use c>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.<ow,2 show the consistency with
which the doctrine enunciated has been adhered to in our criminal
courts and in the Supreme Court.
Judge Denio, in his opinion in the case of Rogers,^ justly observes
that " when a principle of law is found to be well established b}' a series
of authentic precedents, and especially when, as in this case, there is no
conflict of authority, it is unnecessary for the ji.dges to vindicate its
wisdom or policy. It will, moreover, occur to every mind that
Supra.
2 Park. C. C. 223, 236.
' Supra,
570
DRUNKENNESS.
Kc'iuiy V. People.
such a principle is absolutely essential to the protection of life and
property. In the forum of conscience, there is, no doul)t, consideraliK;
difference between a murder deliberately planned and executed, by a
person of unclouded intellect, and the reckless taking of life by one in-
furiated by intoxication ; but human laws are based upon consideia-
tions of policy, and look rather to the maintenance of personal security
and social order, than to an accurate discrim^ lation as to the moral
qualities of individual conduct. But there is, in truth, no injustice in
holding a person responsible for his acts committed in a state of volun-
tary intoxication. It is a duty which every one owes io his fellow-men,
and to society, to say nothing of more solemn obligations, to preserve,
so far as it lies in his power, the inestimable gift of reason. If it is
perverted or destroyed by fixed disease, though brought on by his own
vices, the law holds him not accountable ; but if by a voluntary act lie
temporarily casts off the restraints of reason and conscience, no mercy
is due him, if he is considered answerable for any injury which in that
state he may do to others or to society." The same doctrine was long
since enunciated by the eminent judge, Lord Mansfield, who said, in
tlie celebrated case of the Chamberlain of London v. Evavs, in the
House of Lords, February 4, 1767, that " a man shall not be allowed to
plead that he was drunk in bar of criminal prosecution, though, perhaps,
he was at the time as incapable of the exercise of reason as if he had
been insane ; because his drunkenness was itself a crime, he shall not
be allowed to excuse one crime bj' anotlier. " It is a settled maxim of
the law " that a man shall not disable himself." These views appear
to my mind to be eminently sound and wise, and receive m}- entire con-
currence. They are decisive of the present case, and the judgment
must be affirmed. The day fixed by the judgment for the execution of
the sentence having passed, the proceedings must be remitted to the
Supreme Court, with directions to that court to transmit the same to the
Kings County Oyer and Terminer, with directions to that court to pro-
nounce sentence anew against the prisoner.
All the judges concurring.
Judgment affirmed.
MADNESS IMJODUCEl) HV INTOXICATION.
571
No Defeucc to Crime.
of life and
onsiderabk;
2uted, by a
by one in-
consideia-
lal security
^ the moral
njustice in
; of volun-
ellow-men,
• preserve,
1. If it is
by his own
ary act lie
no mercy
eh in that
3 was lone
10 said, in
»s, in the
allowed to
, perhaps,
if he had
shall not
maxim of
vs appear
ntire con-
judgment
cutiou of
?cl to the
me to the
rt to pro-
^rmed.
intoxication no defence — madness produced thereby.
Bennett v. State.
[Mart. & Ycrg. 13;^.]
In the Supreme Court of Tennessee, 1827.
Jadgi',s
Hon. RonKUT Wiiytk,
" John Cathox,
" JaCOH PlXK,
" Hkxuy Ckaijh,
Artificial and temporary madness by drunkenness voluntarily contracted is no defence
to the charge of homicide.
Catron, J., delivered the opinion of the court.
The defendant (James R. Bennett) was indicted in the Maury Circuit
Court for the riurder of Thomas Callahan, pleaded not guilty, was <.on-
victed and judgment passed upon him, from which he took his writ of
error to this court
(After passing- on other points.)
A main defence on part of the accused before the jury was that he
was a lunatic when he committed tlie crime, and not responsible for the
net. After the court iiad charged the jury in all respects cori-ectl^' upon
the whole facts arising in the cause, it is remarked by the judge to the
jiuy, " that upon the subject of derangement, such was the structure
of the human mind, tliat philosophers might forever speculate upon the
subject, but could not define in what it consists ; but that if a hundred
men should look at a drunken man, they would agree in saying he was
drunk; and if a hundred men were to look at a deranged man, they
would agree in saying he was deranged."
That the defendant was either deranged or intoxicated, or both, when
he coinmittel the homicide, is certain. The part of the ciiarge aliove
set forth was excepted to. The (piestion is, was it erroneous?
No part of the charge of the court being set forth except the para-
giaph cited, and only a general statement in the record that all other
parts of the cliarge were satisfactory to the prisoner, it is diflicult to
see the reasons of the part set forth. We take the charge to import
that there is an intuitive principle in our nature which, when coml)ined
with our experience, qualifies men to judge what is drunkenness and
what insanity, although the reasons why the mind is insane cannot be
defined in the theory. That if a man was solely deranged, or solel}
572
DRUNKENNESS.
Bennutt v. State.
<lrunk, an luindrecl men would all agree his mind was affected in the one
way or the other, and that this judgment formed upon observation
would be the better test of the fact.
This court think the speculation of the circuit judge very reasonable,
and very j)robably correct, and that the reasons for making the remarks
to the jury, in all probability, were necessary, but that necessity grew
out of the facts not appearing in the record. We must, however, take
them as stated alone ; and when we do so, nothing can be seen in the
charge calculated to lead astray the jury in their finding. Therefore,
we do not apprehend there is any error in tliis point.
In this cause a new trial was moved for and refused upon the evi-
dence, the whole of which is set out in the record ; from MJiich it appears
that the defendant was intoxicated at the time he committed the homi-
cide charged in the indictment ; that he had been for a year or more in
Ihe constant habit of drinking spirits to excess, and was very turbulent
and even dangerous when drinking; that by reason of the long con-
tinuance of the habit his mind had become irritable when drinking, and
almost without discretion ; that the slain was a poor debilitated old
man, worn out by age and an irregular life, inoffensive in his character,
and who had not given the least cause to the defendant to injure him :
that the deceased was at the house of the defendant, and they had been
drinking in company ; the defendant captiously, and without any cause
for doing so, accused the slain of stealing his poultry and pigs, took
down his rifle and shot him through the body abont the middle ; after
the crime was committed, he sta^'ed at home and vaunted of the act to
all whom he saw, and stated the facts. If in any case a temporary sus-
pension of reason, caused by voluntary intoxication, would excuse
homicide, this would be a case to which such rule would reasonably
apply.
But that the state of mind of the defendant was artificial, — voluntarily
contracted madness by drunkenness, — and that the frenzy was tem-
porary, this court have no doubt; that such temporary frenzy was
no excuse for the act, is most clear.* We would refer to Sir Matthew
Hale's Pleas of the Crown, ^ as laying down the true rule and settled law
upon this subiect.
The court order that the judgment of the Circuit Court be afllrmed ;
that the defendant be executed on Monday, the 12th day of March
next ; and that the sheriff of Davidson County carry this sentence into
execution.
1 Hale, 32; 1 Hawk. <'li.,3, sect. 7;4 lil. Com. 25.
»B. 1. P.32.
HAILE V. STATE.
573
in the one
)bservation
Drunkenness as a Defence.
•easonable,
lie remarks
ssity grew
ever, take
ieen in the
Therefore,
<n the evi-
i it appears
the homi-
or more in
turbulent
long coi!-
iking, and
itated old
character,
jure him ;
■ had been
any cause
jigs, took
tile; after
the act to
3rary sus-
Id excuse
easonably
oluntarily
was tem-
Mizy was
Matthew
Jttled law
affirmed ;
jf March
ence into
DRUNKENNESS — NO AGGRAVATION OF CRIME — DEGREES OF
MURDER.
Haile V. State
[11 Humph. 154.]
In the Supreme Court of Tennessee, December, 1850.
Hon. Natiiax Grken, "j
" It. J. McKiXNKY, ^Judges.
" A. W. O. TOTTEN.^
1. Drunkenness— No AfiTKravation of Crime. — II. was indicted for murder. It was
proved that he was drunk at the time of the offence. The judge charged the jury that
drunkenness was an aggravation of the otlence, unless tlie prisoner was so deeply in-
toxicated as to be incapable of forming a deliberate and premeditated design to do the
act. Held error.
a. Drunkenness — Desrrees of Murder. — Where there are degrees of murder, the fact of
drunkenness is relevant on the question whelher the killing sprang from a premedi-
tated purpose, or from passion excited by inadequate provocation.
Haile was indicted for murder in tlic Circuit Court of Smith County.
The case was submitt'^d to a jury, under the direction of Judge
Campbell, and the defendant was found guilty of murder in the first
degree, and judgment entered thereupon. From this judgment he
appealed.
J. S. Brien & Caruthers, for the plaintiff in error.
The Attorney-General and M. Brien, for the State.
Gkeen, J., delivered the opinion of the court.
The plaintiff in error was indicted in the Circuit Court of Smith
County, for the murder of J. H. Davis, and upon his trial was found
guilty of murder in the first degree.
Upon the trial there was evidence that the prisoner was intoxicated
attlietimche committed the homicide. Upon the subject of the de-
fendant's intoxication, the judge told the jury, that " voluntary intoxi-
cation is no excuse for the commission of crime ; on the contrary, it is
considered by our law as rather an aggravation ; j'et if the defendant
was so deeply intoxicated by spirituous liquors at the time of the kill-
ing, as to be incapable of forming in his mind, a design, deliberately
574
DKL'NKKN.NKSS.
Ilaih' IK State.
find premeclilattHlly to the act — the killing, under such n state of in-
toxication, would only be nuirder in the second degree."
It is insisted that his honor did not state the principle upon this sub-
ject, as it has been ruled by this court.
In the case of Stran v. State,^ Judge Rkk.sk, who delivered the
opinion of the court, says: '-But although drunkenness, in point of
law, constitutes no excuse or Justilication for crime, still, when the
nature and essence of a crime is m:\de to depend by law upon the pecu-
liar 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 mind is a i)roper subject for considera-
tion and inquiry by the jury. The question in such case is, what is the
mental s^«^((.s? Is it one of self-i)ossession, favorable to fixed purpose,
by deliberation and premeditation, or did the act spring from existing
passion, excited by inadequate provocation, actirig. it uiay be, on a
peculiar temperament, or upon one already excited by ardent spirits?
In such case it matters not that the provocation was inadequate or the
spirits voluntarily drank; the question is, did the act proceed from
sudden passion, or from deliberation or premeditation? What wns the
mental status at the time of the act, and with reference to the act? To
regard the fact of intoxication 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 point of
fact committed."
In these remarks, the court intended to be understood as distinctly
indicating, that a <legree of drunkeiuiess, 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 ab-
solutely incapable of forming a deliberate purpose, might be taken into
consideration by a jury, in determining whether the killing were done
with premeditation and deliberation.
The whole subject was ably reviewed by Judge Trui.KY, in the case
of Pirtle v. St((te.^ In delivering the opinion of the court, in that case,
the judge says : " It will frequently happen necessarily when the killing
is of such a character as the common law designates as nnuder, and it
has not been premeditated by means of poison, or by lying in wait,
that it will be a vexed question, whether the killing has been the result
of sudden passion produced by a cause inadequate to mitigate it to man-
> 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 <fe Pryor and L. P. Walker, for the prisoner.
Ben. Gardner, Attorney-General, for the State.
Peteus, C. J. -The offence charged in this prosecution is thus stated
in the indictment: - Tliat before the finding of this indictment, Henry
Beasley, unlawfully, and with malice aforethought, killed Joseph Todd
by shooting him with a pistol ; against the peace and dignity of the
State of Alabama." To this the accused pleaded " not -uilty " and
went to trial on this plea by a jury. The verdict of the jury was
against him, and he was convicted of murder in the second decrree and
sentenced to imprisonment in the penitentiary for eleven years. From
tins Judgment of conviction the accused appeals to this court The
only errors complained of are those alleged to be founded on the
charges of the court below, which were excepted to, and made a part of
the record by bill of exceptions.
The defence set up on the trial was insanity, from the effects of a
gunshot wound in the head, and habitual drunkenness. Murder in the
second degree is thus defined in the Code: "Every other homicide "
(murder in the first degree excepted), " committed under such circum-
stances as would have constituted murder at common law, is murder in
the second degree." i Blackstone defines murder at common law to be
when a person of sound memory and discretion unlawfully killeth any
reasonable creature in being, and under the king's peace, with malice
87
» Rev. Code, sect. 3653.
578
DRUNKENNESS.
IJeasloy v. State.
aforethought, express or implied." ' This definition, with such change
of phraseology as renders it suitable to the institutions and government
of this country, is adopted and ai)proved l)y the courts of the States,
and of the government of the United States. ^ This court has declared
that the law of homicide in this State is derived from the common law
of England. 3 From this it appears that the sanity or insanity of
the accused is involved in the very definition of the offence of
murder in all its degrees, and is necessarily a fact which in-
fluences the determination of the jury upon the question of guilt or
innocence. In the case of Commonwealth v. Rogers,* the evidence
showed that Rogers, the accused stabbed Ivincoln, the warden of the
prison in which Rogers was confined, and killed him without any prov-
ocation whatever. The sole defence was the insanity of the prisoner.
Shaw, C. J., stated the law of that case in these words: " In order to
constitute a crime, a person must have intelligence and capacity enougli
to have a crimin.il intent and purpose. * * * In order to be re-
sponsible, he must have sufficient power of memory to recollect thi'
relation in which he stands to others, and in which others stand to him ;
that the act he is doing is contrary to the plain dictates of justice and
right, injurious to others, and a violation of the dictates of duty." ^
In the case at bar, the kilUng was most clearly proven. There can
be no doubt about the perpetration of the criminal act. It was done in
a manner the most deliberate and cruel, if the accused was of sound
memory and discretion at the time the homicide was committed. Then,
the defendant would be clearly guilty as charged in the indictment, if
he was of sound memory and discretion at the time Todd was killed by
him. To show that the accused was not of sound memory and discre-
tion at the time he committed the fatal act that resulted in the death of
Todd, evidence was introduced by the defence, tending to show that the
prisoner had shot himself in the head some nineteen years before the
trial in the court below, which produced " a depression in the skull, and
a compression of the brain ; " that after this wound, which was on the
right side of the head, the prisoner had been affected with "partial
paralysis in his left arm and left leg," up to the day of the trial, and
that the wound in the head still remained "sensitive to the touch."
Evidence was also offered in the defence, which tended to show that
for several years before the killing, the accused was a great drunkard ; "
1 4 ni.i. Com. [195] ; 3 Inst. 47.
- Amer. Law of Honi,, by Wharton, p. 33;
Med. Juris, by Wharton & Stille, (ed. 1855,)
p. 664, sect. 966.
3 Pierson v. State, 12 Ala. 149.
< 7 Mete. 500.
6 «, c. 1 Lead. Cr. Ca3. 87, 89.
MKASLKY V. STATE.
579
Evidence of Drunkenness.
ich change
ovcrnmcnt
the States,
3 declared
»minon law
nsanity of
)ffeiice of
winch in-
)f guilt or
o evidence
den of the
, any prov-
e prisoner,
[n order to
;ity enough
■r to be re-
collect the
nd to him ;
justice and
uty."5
There can
vas done in
s of sound
Dd. Then,
ictment, if
IS killed by
and discre-
le death of
:)W that tlie
jefore the
skull, and
vas on tlic
' ' parti.'il
e trial, and
le touch."
show that
unkard;"
" that he was generally drunk ; " his habits were " to drink from a half to
one gallon of spirits every night, and largo quantities before breakfast,,
and before dinner, and before supper each day." lie " frequently saw-
sights such as witches and devils, and imagined that men were after
liim to kill him." He fancied that "hair grew in the palm.s of his
liands," which he tried to pluck out, and in " his mouth, and was chok-
ing him; " and about three weeks before the killing, he had an attack
of delirium tremens. There was also proof, that, when drunk, he was " a
(Tiizy man, wild and furious, and without si-nse or reason; " and on
the Saturday before the killing, which took place on Monday, " he was
seeing witches and devils, and was a wild and crazy man." There was
evidence also showing that on Monday, the day of the killing, " he was
in like condition," as on the Saturday before. The evidence for the
prosecution tended to show that the killing was wholly unprovoked, and
perpetrated in the most deliberate and brutal manner ; that the accused
was not totally deprived of memory and discretion at the time of the
commission of the act, which constitutes the offence charged. There
was no serious conflict in the testimony, except as to the state of mind of
the defendant, in the court below, at the time of the homicide.
Upon this evidence the court gave seven charges to the jury, each of
which was excepted to by the accused, and incorporated into the record
Ity bill of exceptions. The first of these charges was in tliese words :
"Drunkenness, in itself, was no palliation or excuse." And the fifth
charge was in these words: ''Upon the evidence, the defendant was
•fuilty of murder in the first degree, or of nothing."
It is said in Martin v. State, ^ that "where there is any rebutting
proof, the court ought so to charge as to recognize its effect." This is
particularly so when the charge is general, and applies to the whole
case. Here the proof tended to show, not only that the accused was
drunk, but when drunk was " a crazy man, wild and furious, and with-
out sense or reason ; " that on Saturday before the killing on Monday,
" he was seeing witches and devils, and was a wild and crazy man ; "
and on Monday, the day of the killing, " he was in like condition, as he
liad been on the Saturday before. The first charge of the court above
set out ignores all this evidence of mental unsoundness, and seems to
take it for granted that, if it existed, it must necessarily be the imme-
diate effects of the defendant's drunkenness. Such a charge is vicious,,
because it excludes from the jury all the evidence of mental unsound-
ness, which might or might not be a palliation or excuse for' acts which
1 47 Ala. 564, 573.
580
DKUNKEXXKSt*.
Bt'iiHlcy V. State.
would otlicrwiso be criminal, according to the degree and character of
the mental unsoundness. The policy of the law forbids that mere drunk-
einicss alone hIiouUI do away with the responsibility for crimes.^ But
119 all crime implies some degree of intelligenco in the criminal, the hu-
manity of the law will not sanction the punislinient of a person incapa-
ble of rational action.'- Drunkenness may be said to have two degrees
in its effects upon the memory and discretion. The one of these is
mere intoxication. No degree of this will palliate or excuse, where it
is the effect of the voluntary act of the defendant.*' Blackstone, and
the older authorities, say that drunkenness itself is a crime; and, "the
law of England, considering how easy it is to counterfeit this excuse,
and how weak an excuse it is, though real, will not suffer any man thus
to privilege one crime by another." ' The other effect of drunkenness
is mental unsoundness, brought on b}' excessive drinking, which remains
after the intoxication has subsided. This latter mental unsoundness, if
it exists to such excess that the accused loses the government of his
reason, may be interposed as a palliation or excuse for crime. ^ Here
there was proof not only of excessive intoxication, but also some procif
of mental unsoundness which was separable from mere intoxicatidu.
It should, therefore, have been left to the jury to determine whetlu r
there was any mental unsoundness which was separable from the in-
toxication ; and if there was, whether it was sufficient to overthrow the
defendant's sense of right and wrong. The defendant's drunkenne>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<? on other points.)
The facts proved on the trial, and on which the said instructions were
founded, aie in substance as follows : On the evening of the 4tli of
July, 1870, Boswell (the accused), being drunk and staggering, canio
up King Street (in Alexandria) to West Street, and upset a barrel in
front of a store on King Street, as he went by ; tiiat he turned down
West Street, going in a northerly direction, and keeping on the east
side of the latter street ; that, as he walked along, he exclaimed in vio-
lent tones : " I will blow his damn brains out ; will kill the damn littlr
sons of bitches ; " that there weie at the time two little negro girls pass-
ing along the w-est side of West Street, going in a southerly direction
and toward King Street, a number of ducks in the street about ten feet
from h'm, and still further on a cart, both the ducks and the cart being
between the prisoner and the other side of the street, though it did not
appear that the cai-t was between prisoner and the little girls ; that,
w
ill
e:
ta
ki
of
BOSWELI- 8 CAHK.
593
The Facts of tliu Cuso.
EN OF
'1.
y, like every
iction of the
jn.
ich, a col-
le second
AOns wero
he 4th of
ng, came
barrel in
lied down
the east
}d in vio-
imn Httlo
[iris pass-
Idirection
ten feet
lart lieing
It did not
[is; that,
when about midway of the square, Boswell picked up ii brick, and cast-
hig it across the street, struck one of tlie little girls on the right side
of the head, aliove the ear; that the girl fell in a dying condition, and
expired at ten o'clock in the night of that day ; that the girl so struck
was named Martha French, and was about six years and nine months
old; that after throwing the brick, Boswell turned and walked to the
corner of King and West Streets, took off his coat or jacket, put it on
the curbstone and sat down ; while there he was told by a witness not
to go away, and replied: "If I have done anything wrong, you can
take out your penknife and cut my throat. I give myself up. If I
killed the child, I did not intend to do it." That Boswell iiad 1)cen
•rrossly intoxicated for a week, except on the day preceding the day on
which the alleged crime was conmiitted, and had no previous acquaint-
iuice with the deceased ; that Boswell, the <lay before the killing of the
child, when asked by Thomas Huntington why he did not reform and
behave himself, said he wanted to die, but did not know why ; that one
day in the latter part of June, 1S70, he threw himself into u small
stream near Alexandria, called Ilooff's Run, at a place where the water is
about eight inches deep, and Lucien Ilooff and another man who was
l)assing by, found him h'ing on his faci; in the water, out of which thej'
pulled him, and laid him on the grass ; if he had been left in the water
ho would have drowned ; that they then went away, and Ilooff, on look-
ing back, saw Boswell again throw himself into the water, and Ilooff
and a man named Cunningham pulled him out aad left him lying on the
bank in an insensible condition ; he would have been drowned in two
minutes, had he not been rescued ; that in June, 1870, some two weeks
prior to the killing of the child, Boswell came to the depot of the Orange,
Alexandria and Manassas Railroad, excessively drunk, and staggering,
and throwing himself aboiii. and threw himself across the cow-catcher
of an engine in motion, which dragged him some distance ; that the en-
gineer stopped, and two men took him off the cow-catcher, and threw
liim on a pile of manure ; that about an hour afterwards, as the southern
bound train was leaving the depot, Boswell was discovered lying on one
or both rails of the track, near the culvert, a short distance from the
depot; that the engineer stopped the tram, and the same two men
(hiigged him off the track, and threw him down the embankment ; that
each month, about the change of the moon, John Boswell, the prison-
er's younger brother, would go home, refuse to work, and when ap-
proached with directions to go to work, would be listless, indifferent,
and seem not to understand.
88
594
DRUNKENNESS.
BOHWOH'S CU8l!,
After the ovidi'iu'C was hciird by the jury, the nccusod, I)}' couiih*'!,
movod the court to give them tlie foIh)vving instructions: —
1. If the Jury Hhull believe, from tlio evidence, tiuit tlic prisoner wns
<h'uu!< at tile time of tlie killing in the indictment mentioned, and thai
such drunkenness WHS l)rought on by sensual or social gratification, witii
no criminal intent, then they are justified in finding a verdict of volini-
tary manslaughter, provided they also believe from the evidence tliat
tliere was no malice.
2. If tlie jury believe, from the evidence, that the drunkenness was
the result of long-continued and habitual drinking, without any piu'pose
to commit crime, and that the drunkenness produced insanity, whether
temporary or permanent, and that the prisoner was in such condition,
at the time of the killing aforesaid, then the jury may find n verdict of
not guilty ; and further, that when the jury, from the evidencte, should
entertain a reasonal)lc doubt on the question of insanity, they should
find in favor of insanity ; or if tliey should entertain, from the evi-
dence, reasonal)le doubt of any material portion of the charge, the pris-
oner shall have the benefit of that doubt.
And the court refused to give the said instructions, and gave the fol-
lowing to the jury : —
1. That 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 ; that if, from the evidence, the jury belie\o
that at the time of throwing the brick, the blow from which caused the
death of the deceased, the prisoner was laboring under such a defect
of reason from disease of tlie mind (remotely produced by previous
habits of gross intemperance), as not to know the nature and possible
consequences of his act, or if he did know, then that he did not know
he was doing what was wrong, they will find the prisoner not guilty.
2. That if the jury shall believe beyond reasonable doubt, from tlio
evidence, that the prisoner threw the brick at the deceased without pro-
vocation and through reckless wickedness of heart, but that at the time
of doing so, his condition, from intoxication or other causes, was such
as to render him incai)able of doing a wilful, deliberate, and premedi-
tated act, then they will find the prisoner guilty of murder in the second
<legree.
3. That if the jury believe, from the evidence, beyond reasonable
doubt, that the prisoner, though intoxicated at the time of throwing itio
brick which caused the death of the deceased, was capable of knowing
the nature and consequence of his act, and if he did know, then that
he knew he was doing wrong, and that so knowing he threw the brick tit
DIUNKENXKHS AS A DEFKNCK
.595
The Kiiyllsli CuHi'S.
y counsiM,
isoiior was
, and that
ation, witli
, of voliiii-
lence that
.'nncas was
ly puii)()st'
}', whether
condition.
1, verdiet of
u!e, should
hey shouM
tn the evi-
e, the pris-
ive tlie I'ol-
a sufllciont
contrary is
ury believe
caused the
L'h a def eet
y previous
d possible
not know
guilty.
, from the
itliout pro-
at the time
was such
d premedi-
the second
reasonable
rowing llie
f knowing
, then that
he brick at
llio deccaHed with the wilful, deliberate, and premeditated purpose of
Mlling her, then they will find the prisoner guilty of murder in the llrst
degree.
4. That if the jury believe from the evidence that the prisoi»er, at
the time of throwing the l)rick at the deceased, was in such a condition
as to render him incapable of a wilful, deliberate, and i)remeditatcd
purpose, and that he did not so throw it out of any reckless wicked-
ness of heart or purpose, then they will find the prisoner guilty of vol-
luUary manslaughter.
5. If the jury should acquit the prisoner, by reason of their believ-
ing him insane, that they will so state in their verdict.
The law in regard to the extent to which intoxication affects respon-
sibility for crime, seems to be now well settled ; and the only difficulty
is in the application of the law to the facts of a particular case.
In 1 Hale's P. C he says: " The dnncntia (((fcctata; namely, drunk-
ness ; this vice doth deprive a man of his reason, and puts many men
into a perfect but temporary frenzy ; but by the laws of England, such
a person shall have no privilege by his voluntarily contracted madness,
but shall have the same judgment as if he were in his right senses.'"-'
Blackstone says, in regard to the excuse of drunkenness, " the law of
England, considering how easy it is to counterfeit this excuse, and how
weak an excuse it is, though real, will not suffer any man thus to privi-
lege one crime by another." In Rex v. Thomus^^ 1'akkk, B., said to the
jury: " I must also tell you, that if a man makes himself vf)luntarily
dvunk, it is no excnisc for any crime he may conunit while he is so ; he
must take the consequences of his own voluntary act, or most crimes
would go inipunished. And in John Burrow's (7n.s>', ' 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 <iii
questions propounded by the House of
Lords, 47 Kng. C. L. R., 129; State v.
Willis. 6:i \. ('. 2fi; Graham v. Comiuou
wealth, 16 B. Men. 587.
ISOSWELL S CASE.
601
United States v. Drew.
to require the
i it necessary
ems to be free
nk the words
II be incapable
eliherate, and
nuider in the
rds " throuffh
e instruction,
y of doing an
ame time, be
to render him
d act. There
parts of tlie
he jury,
lable and un-
3nable on the
umes the fact
light to have
.'e stated the
I the evidence
ed lier death,
)n of drunk-
and premedi-
any reckless
isoner guilty
•1" not, was a
idenco. He
the ducks in
r case he did
ne and place
herefore, rc-
it the degree
e brick was
129; state v.
m V. Comniou-
thrown. Such intention was therefore a material fact to be determined
by the jury, and the court invaded their province in assuming it.
The result of ray opinion is that there is no other error in the judg-
ment than those in the second and fourth instructions given by the
court as aforesaid ; but for those errors the said judgment ought to bo
reversed, the verdict set aside, and the case remanded for a new trial to
be had therein.
JoYNEs, J., concurred in the opinion of Moncure, P., except as to
what is said therein upon the burden of proof on tlie question of insan-
ity. He was of the oi)inion that the burden was on the CommonweaUh
to prove the sanity of the prisoner.
The other judges concurred in the opinion of Moncure, P.
Judgment reversed.
DRUNia:NNESS— INSANITY RESULTING THEREFROM.
United States v. Dkew.
[5 Mason, 28.]
In the United States Circuit Court for the District of Massachusetts.
May, 1828.
Hon. JosKPir Story, > 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
,%,
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IMAGE EVALUATION
TEST TARGET (MT-3)
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Hiotographic
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23 WEST MAIN STREET
WEBSTER, NY. 145*0
(716) S73-4503
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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<ler in the first degree, and i)unishment to
mean capital punishment, and that the intoxication of the prisoner
whether little or much could legally have no bearing upon the question
whether it was murder in the first or second degree. The danger is that
tha jury, while making up their verdict, excluded from their minds the
subject of intoxication altogether ; and that they were led to believe
that the malice implied by law from the weapon used, and the circum-
stances attending the offence, was sullicient to constitute murder in the
first degree, and that a deliberate, premeditated design to take life was
not essential. If so, it is manifest that injustice may have been douf
the prisoner. I think the court should have submitted to the considera-
tion of the jury the fact of intoxication, if it was a fact to be weighed
by them, in connection with the other evidence in the cause, in determin-
ing whether it was a wilfid, deliberate, and premeditated killing.
For these reasons, a majority of the court are of the opinion that a
new trial should be advised.
In this opinion. Park, J., concurred. Seymocij, J., dissented. Fos-
ter, J., having tried the case below, did not sit.
' 44 Pa. St. 5-. ;
« 19 Mich. 401.
» 14 Ohio JM.
4 11 Minn. 154.
6 11 Humph. 154.
• 8 Bush (K>-.),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<xrce. It is nn\nifest from (he motion
that the prisoner if intoxicated at all, was slightly so. ''Some evi-
dcuci' " tending to prove it was ol'fereil ; and it was claimed " tii:it his
health was such that lie was more easily affi-cted by intoxicalini:
liijuors ; " and " that he was provoked by the conduct of the deceased
to such a degree that ho was wholly beside himself and for the time
being insane." The recpiest, therefore, was not pertinent to the facts
of the case, nor to the evidence offered, and the court properly refused
to charge as requested.
The court charged the jury that " the law recognizes the general
principle that it is wrong fen- a man to cloud his mind and excite lii>
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:d<en
one step in tiiat direction, and that wo could not now con^stently
refuse to take unotlu'r. We have enunciated no smh doctrine:
and nothing said in that case, if comprehended, and candidly considered,
will bear any such construction. We distinctly held that on a trial for
murder in the first degree, which, under our statute, requires ort.mJ
('xprKs.s vudirc, the jury might and should take into consideration the
fact of intoxication as tending to prove that such malice did nut exist.
And we as distinctly hehl that " drunkenness does not excuse ji party
from the consequences of a criminal a(!t ; one crime cannot excuse
another, a man committing a criminal act, though intoxicated at the
lime, is a legal and proper subject of punishment."
We are now asked to recede from this latter position, and take a
dei)arture from the common law, and the law of our sister States, and
to establish the doctrine that a drunken man cannot connnit tlie crime
■jf murder; that intoxication, in law, dispn.ves the existence of malice.
]\[nrder in the second degree, as the jury were proi)erly told, rests
upon implied malice. IVIalice may be implied from the circumstances
of the ho.nicide. If a drunken man takes the life of another, unaccom-
panied with circumstances of provocation or justification, the jurv will
be warranted in finding the existence of malice, though no express malice
be proved. Intoxication which is itself a crime against society combines
with the act of killing, and the evil intent to take life which necessarily
accompanies it, and all together afford sullicient grounds for implying
malice. °
Intoxication, therefore, so far from disproving malice, is itself a
circumstance from which malice may be imi)lied. We wish, therefore,
(o reiterate the doctrine emphatically, that intoxication is no excuse for
crime ; and we trust it will be a long time before the contrary doctrine,
which would be so convenient for criminals and evil disposed persons^
will receive the sanction of this court. A new trial must be denied.
In this opinion the other judges concurred.
' State v. Johnson, 40 Conn. 136
T
eA2
DRUNKENNESS.
.IdiU's I'. Stiitf
DRUNKENNESS — I )KC.REES OF MrRDEH — PRO VOCATION.
Jones v. State.
[211 Oil. 5'.»4.]
In the Supreme Court of Georgia^ January Term, ISGO.
Drt'-nkennesa—Defrreesof Murder — Provocation. — In deciding ns to tlic degree nf a
homicide, the jury may consider tliedruntcenncs.4 of tlie accused nt the time of tlu; kill-
ing, not to excuse or mitigate or e.\tenuate Ids crime, but to assist tlicni indecidir- when
there was a iirovocntion, whether the intention to kill preo^dcd the provocation, or wuh
I)roduccd by it.
The prisoner was tried in the Richmond Supreme Court before Juds^o
Holt, for the murder of Willitim C)sl)orne. The killing was admitted
and the defence turned entirely upon the grade of the homicide. Ver-
dict, guilty.
Alex. II. Stephem and E. J tVnlker, for prisoner.
Solicitor-General Rogem and W. R. Leiois, for the State.
Stkpiikns, J., delivered the opinion of the court.
(Omittii.g a decision on another point.)
In grading this homicidi', what instructions ought to have 1)een given
to the jury concerning the drunkenness of the accused? This court,
approving of the judge's refusal to give the instructions asked by the
defence, thinks that other important instructions not given would have
been appropriate to the facts in evidence. I shall point out what we
think would have been the proper instructions, but shall first present
those views of the general subject which lead my own mind to the con-
clusions at which the court arrived.
One side in the argument affirms as a great principle, that no man,
drunk or .sober, should be punished for a crime which he did not have
sutlicieut mind to perpetrate ; and the other repliet^, with an equally im-
portant principle, that drunkenness is no excuse for crime. The two
sides, each relying upon its chosen principle, itave arrived at singularly
conflicting conclusions. The truth is, that both these principles are cor-
rect, and constitute, with tl.e just deductions from them, but parts of tni
harmonious whole, sustained by law and sanctioned by reason.
The error which the side of the accused commits, lies in assuming too
large a quantum of mind as the minimum which can furnish the neces-
sary mental element in all crime — in erecting too high a standard of
mental capacity. Different classes of crime do involve different degrees
of mind, and in all cases there may arise particular instances which in
I
DIUNKKNNKSS.
<;i3
Li'gul Mulicu DelliicMl.
ION.
B degree of a
e ot the kill-
icidir wliL-n
ntioii, or WU8
ore Jud<yo
i admitted
ido. Ver-
>cen 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 »<j;o T kni-w an attempt at house-ltiirninu', where the slow
match found after tlie fire had been extinguished, exhil)itcd great inge-
nuity in the bending of wires and crooking of pins in a peculiar way,
so as to secure both slovvness and certainty of ignition. The crooking
of the pins, especially, in a manner so peculiarly adapted to the end in
view, was the theme of village wonder for weeks afterwards, and is still
remembered ])y many persons as a remarkable display of mechanical
genius. Now there were two or three men who frequented that village
in those days, any one of whom, if suspicions had fallen on him, could
have proven that at any time for a week before the fire he had been too
drunk to crook a |)in. Would any man have discarded that evidence if
he had been seekincj for the truth? Both these illustrations show the
absurdity of excluding the consideration of drunkenness, in investigat-
ing the act which enters into the allegctl crime • bnt another form of tlie
fallacy, is that when the act ai)pears to have been done by the accused
he shall not be allowed to excuse his act by any consideration of his
dnmkenness. It might be suflftcient to reply to this by saying the law
says that for crimes, not acts, drunkenness shall be no excuse. This
form of the fallacy ignores utterly the most important clement of the
crime; for the mental part of the crime is criminal in morals and re-
ligion without its union Avith any act whatever, while neither in law nor
morals has the act any criminality whatever until coimected with a
criminal state of mind. Acts need no excuse ; crimes do. This form
of the fallacy puts a drunk man, not on the same platform with sober
men, but on a nuich more disadvantageous one. 'I'he act, when done
by appropriate means, carries a presumption against all men, sober oi'
drunk, that it was intended to be done ; but this proposition is to leave
it but a presumption against sober men, and to fix it irrevocably against
a drunk man. The proposition admits, that dinnkenness, like any
other '* no excuse " for crime, may be used to throw light on the inves-
tigation into the physical constituent of the crime, but denies that it
may be used in examining into the mind, which is the special field where
drunkenness displays its power. That is to say, it ma^- be used in that
part of the investigation on which it ordinarily throAvs least light, but
must be excluded from that branch in which it usually throws most
light. Can there be a sensible reason for such a discrimination between
EVIl>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
<U8
DIMNKKXNKSS.
Joiifs c. stale
murder, hutnn aH of involuntary nj:iii>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 aii<l thoughts and inten-
tions slip through it as mum an they fall into it? lie might have
forgotten the first rencoiitn' and all its passions and intentions, and so
brought none of them to tlic^ second — if he wsis (vry drunk. liut
drunkenness far short of the point of cxtieiiie forget fulness, renders the
mind inconstant in purpose, and exceedingly whimsical and rapid in its
changes from one emotion to another, and even from one elassof emo-
tions to another class. Who has not seen the drunken man Jireathing
threats one moment, and the next uttering maudlin |)rofessions of friend-
ahij) — inone moment an imaginary hero, in the next an abject whim-
perer?
The whole tendency of drunkenne... was to change that slate of mind —
which the State maintained ii.-id not been changed, but had continued
from the first rencontre to the scMond. Its tcmlenev was to rebut the
strongest evidence which sliowi ■ the formatio i of an intent to kill l)ef()re
the provocation was given, and it is r\Metly for this pur|)ose that the
drunkenness, in tl:j opinion of this ( oui I, ought to have been considered
by the jury, to assist them in di-cidlng whether the intent to kill pre-
ceded the provocation, or was produced by it.
Jud'jment reversed.
Lyon, J. dissenting.
DRUNKENNESS
IRKELEVANT ON
DOES NOT MITKJ.VTE CRIME
QUESTION (JE DEtiRKE.
State v. Cijoss.
[27 Mo. 382.]
In the Supreme Court of Missouri, October Term, 185S.
Hop. VVim.iam Scott,
I
" Wii.i.iA.M H. Nai'To.v, \ Jmlijca.
" John C. RuiiAituso.N- )
Drunkenness does not inillgato a crime; neither can it bo taken into consideration by a
Jury In rtetenniiiing whcilier ii person coniiuittinj,' a bomieidc acted therein wilfully,
deliberately , and prenieditaledly, so as to constitute murder in the first degree.
AppEAf, from Franklin Circuit Court.
Maurn, for the State.
C Jones for appellant.
620
DKUNKENXESK.
State V. Cross.
Napton, J., (li'livered the opinion of the court.
[After deciding that the judgment must be reversed because the
record does not show tl'.at I'^e prisoner was present in court when ihc
verdict ■"•as rendei'cd.]
The following instruction was aslced upon tliis trial by the counsel for
the ]>ri9oner, 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
<hiring tliat time ; and that as well in cases touching his life, his lands,
his g(;ods, or any other thing that concerns him." ^ Lord Bacon, in his
" Ma:iiii;3 ulthe Law," dedicated to Queen Elizabeth, asserts the doctrine
thus: " If a madman commit a felony, he shall not lose his life for it,
because his inhnuity came by the act of God; but if a drunken man
commit a felony, 'le shall not be excused, because the imperfection came
by his own defauli." ' And that great and humane judge, Sir Mattiikw
IIai-k, in his "•History of the Pleas of the Crown," written nearly
two hundred 3 ears ago, does not countenance any relaxation of the
rule. " The third kind of dementin," he says, " is that which is (Jcmen-
tia affectata, namely, driuikenness. The vice doth deprive men of the
use of reason, and puts many men into a perfect but temporary frenz}' ;
and, therefore, according to some civilians, such a person committing
homicide shall not be punished simply for the crime of homicide, but
shall suffer for his drunkenness, answerable to the nature of the crime
occasioned thereby, so that yet the primal cause of the punishment is
rather the drunkenness than the crime committed in it ; but b>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<ikin was an indictment for stabbing
with a fork, with intent to murder, and it was shown that the prisoner
was the worse for liquor. Alukhson, Earon, instructed the jury that,
with regard to the intention, drunkenness might be adverted to according
to the nature of the instrument used. "If," he said, " a man uses a
stick, you would not infer a malicious intent so strongly against him, if
drunk when he made an intemperate use of it, as you would if he had
used a different kind of weapon; but where a dangerous instrument is
used, which, if used, must produce grievous bodily harm, drunkenness
can have no effect upon the consideration of the malicious intent of the
party." In Bex v. Thomas, for malicious stabbing, the [)erson stabbed
had struck the prisoner twice with his fist, when the latter, being drunk,
stabbed him, and the jury were charged that drunkenness might be taken
into consideration in cases where what the law deems sufficient provoca-
tion has been given, because the (luestion in such cases is, whether the
fatal act is to be attributed to the passion of anger excited by the pre-
vious provocation ; and that passion, it was said, is more easily excitable
in a person when in a state of intoxication than when he is sober. So. it
was added, where the question is whetlier the words have been uttered
with a deliberate purpose, 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 manner, the state of drunkenness in which the prisoner
was, ought not to be regarded, for it would furnish no excuse."
It must generally happen, in homicides committed by drunken men,
that the condition of the prisoner would explain or give character to some
of his language, or some part of his conduct, and, therefore, I am of
682
DKIJNKEXNEHH.
]'t'(>|)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 <lirections to pronounce sen-
tence anew against the prisoner.
IIarkis, J. — That the defendant was guilty of some crime, was con-
ceded upon the trial. He had committed homicide. The act of killing
was perpetrated with a deadly weapon. The only question to be de-
1 Rex t'. 'rhonia:^, supra.
p. 61.!, sec. ;•>.
•^ 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
<i^ as tlie
d, in the
il conso-
n, sh(jol,
jn, short
if acting
bstance,
se. The
resulted
r proof,
3 conse-
o show,
that the
DHLNKENXESS.
c;].")-
Kc'Ii'vant on QiK'>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
<legrce, in their verdict, whether there was any rnitigtiting cireunistauce
or circumstances."
Tlie coin-t was asked to charge, as a mutter of hvw, tliat drunkenness
would reduce the crime of murder in the first degree to that of murder
in the second degree. The court, i i reply, said that drunkenness is no
excuse or Justification for any crime. The legal correctness of the gen-
eral statement of the court is abundantly sustained by a long nnd un-
broken scries of authority in ancient and modern times, and by none
more strongly and full}' than by this court in the case referred to in
Martin & Yerger's Reports. AVhatever etliical pliilosoph^' may make of
the matter, such, probably, for stern reasons of policy and necessity,
will ever remain the doctrine of criminal courts. But, although drunken-
ness, in point of law, constitutes no excuse or justification for crime,
still, when the nature and essence of a crime is made liy law to <lepend
ui)on the peculiar state and condition of the criminal's mind at the time,
and with reference to tiie act done, drunkenness, as a matter of fact,
affecting such state and condition of the mind, is a proper sul»ject for con-
sideration and incjuiry by the jury. The question in such case is, what is
tlie mental stutUH f Is it one of self-possession, favorable to the formation
of fixed purpose, b}' deliberation and premeditation, or did the act spring
from existing passion, excited by inadequate provocation, acting, it may
be, on a peculiar temperament, or upon one already excited by ardent
spirits. In such case it matters not that the provocation wns inade-
quate, or the si)irits voluntarily drank ; the question is, did the act pro-
ceed from sudden passion, or from deliberation and i)renH'ditation?
What was the mental Kfatiis at the time of the act, and with reference to
the act? To reyjard the fact of intoxication as meriting consideration
in such a case, is not to hold that drnnkenness will excuse cr*ne, but
to inquire whether the very crime which the law defines and punislies
has, in point of fact, been committed. If the mental state required by
law to constitute the crime be one of deliberation and premeditation,
and drunkenness or other cause excludes the existence of such mental
state, then the crime is not excused by drunkenness or such other cause,
but has not, in fact, been committed. Even in iMigland, where the crime
of murder in the first degree has not been created and defined 1)y law, it
has been held, in the case of KUig v. Gi'indley,^ that, " though voluntary
drunkenness cannot excuse from the commission of crime, yet when —
as upon a charge of murder — the material question is whether an act is
> 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 min<l, is a proi)er subject for consideration and inquiry by the jur}'.
The question in such case is, wh:jt is the mental status? Is it one of
self-possession favorable to the formation of a fixed purpose, b}' de-
liberation and premeditation, or did the act spring from existing passion
excited by inadequate provocation, acting, it mny l)e, on a peculiar
temperament, or upon one already excited by aident spirits. In such
case it matters not that the provocation was inadecjuate, or the spirits
voluntarily drank ; the question is, did the act proceed from sudden
passion, or from deliberation or premeditation. What was the mental
status at the time of the act, and with reference to tlio ti^t? To regard
the fact of intoxication 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 point of fact
committed. If the mental status required by law to constitute crime be
one of deliberation and premeditation, and drunkenness or other cause
excludes the existence of such mental state, then the crime is not excused
by drunkenness or such other cause, but has not in fact been committed. ' '
This reasoning is alone applicable to cases of murder under our act
of 1820,1 which provides " that all murder committed by means of poi-
son, l3Mng in wait, or any other kind of wilful, delil)erate, malicious, and
premeditated killing, or which shall be committed in the perpetration,
or attempt to perpetrate any arson, rape, robber}-, burglary, or larceny,
shall be deemed murder in the first degree, and all other kinds of mur-
der shall be deemed murder in the second degree." Now this is draw-
i:hiip. 2:].
TJIE DEOHEES OF Ml UOEll.
(551
Druiikeuni'ss, whin Rt>li'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<mnection with all tlie
facts and circunistanci's, wliether the act was premeditatedly and de-
liberately done." P^)llowing these authorities is the case of Lancaster
V. State,^ which "was an indictment for an assault to commit murder in
the first degree, this court held the following charge to be erroneous, to
wit: "If defendant had been drinking nuich or little it would be a cir-
cumstance for tiio jury to look to for the purpose of ascertaining
whether the defendant's mind was so influenced by luiuor as to incapacitate
him from forming a deliberate and premeditated design, that is, his mind
so much influenced by liquor as to be incapable of contemplating the re-
sult of his acts, and if this was the condition of his mind he could not be
convicted of an assault with intent to commit nnirder in the first degree ;
but if his mind was not in that condition and was not so much influenced
by liquor to as to prevent him fn;m forming a deliberate and premedi-
tated design, drunkenness would then be no excuse and would not lessen
the crime.
The rule to be abstracted from those cases is about this : if drunken-
ness exists to such an extent as to render the defendant incapable of
forming a i)remeditated and deliberate design to kill, then of course he
cannot be guilty of murder in the first degree; still, if the drunkenness
be not of this extent, nevertheless the jury may consider this drunken-
ness in connection with all the facts, to see whether the purpose to kill
was formed in passion produced by a cause operating upon a mind ex-
cited with liquor — not such adequate cause as would reduce the killing
to manslaughter — l)ut nevertheless such as produced passion in fact,
and reduce the killing to murder in the second degree ; or whether, not-
withstanding the drunkenness, the purpose to kill was formed with de-
liberation and premeditation, for a drunken man may be guilty of mur-
der in the first degree if the drunkenness be jiot to such an extent as to
render his mind incapable of deliberation and premeditation. The con-
viction 'for murder in the first degree was affirmed in Swan's Case^^
although he was intoxicated at the time.
We are constrained to hold upon the rule as thus established by these
authorities, that the portion of his Honor's charge above set forth ia
erroneous. The jury were correctl}' told that if the prisoner was so in-
toxicated as to be incapable of deliberating and premeditating the deed
' 2 Lea, 573.
42
• 4 Uumpta. 136.
658
DIUJNKENNESH.
Lancaster n. Stato.
he could not be gnilty of murder in the first dejyrec ; on t^«e other hand,
if, notwithstanding his intoxication, he •was capable of deliberation and
premeditation, then he might be found guilty of murder in the first de-
gree. This was all will enough ; but the error is in making the whole
effect of the prisoner's intoxication in reducing the killing to murder in
the second degree depend upon whether the drunkenness waste such an
extent as to render tlie prisoner incapable of deliberation and premedita-
tion ; whereas as we have seen a degree of intoxication short of this
may, when taken in connection with the other facts, show that the killing
resulted from a puri)ose formed in passion, and not deliberately and
premeditatedly ; and although there be no adequate provocation to re-
duce the offence to manslaughter, yet if in this mode the want of delib-
eration and premeditation appear, it may be reduced to murder in the
second degree.
In a case involving life we do not feel at liberty to overlook this error,
whatever we might think of the facts. The prisoner is entitled to a cor-
rect exposition of the law.
The judgment must therefore be reversed, and the case remanded for
a new trial.
DRUNKENNESS — DEGREES OF MURDER — NEED NOT BE «• EXCES-
sive " to be an excuse.
Lancaster v. State.
[2 Lea, 675.]
In the Supreme Court of Tennessee, April Term, 1S79.
Hon. James W. Deaderick, Chief Justice.
PKTKR TlUNEY,
Robert McFarland,
William F. Coopkr,
Thomas J. Freeman, ^
» Judges.
DrunkranesB— Need not be Excessive to be an Excuse. — Upon a trial for m jrder in
the first degree or an assault with intent to commit murder in the first degree, drunken-
ness to any extent is relevant. Though it inny not be so excessive as to render the pris-
oner incapable of deliberating, yet it may have excited him and produced a state ol
mind unfavorable to premeditation and deliberation.
Appeal from the Circuit Couit of Henderson County.
E. L. Bullock, for Lancaster.
DRUXKENXESS,
(j^y
The Tcmu'sscc ('uses Kcviiwi-d.
thcr hand,
ration and
le first de-
', the whole
murder in
to such an
promrdita-
5rt of this
the killing
ratcly and
ition to re-
it of delib-
dcr in the
this error,
d to a cor-
landed for
" EXCES-
9.
Jrmjrder in
ee,drunken-
iderthe pria-
id a state ot
f
Attorney-General Lee, for the State.
Dkadkimck, C. J., (lolivcrcd the opinion of the court.
The defendant was convicted for assault with intent to commit mur-
der in the first dcfireo, and sentenced to fifteen years' iinprisonnient in
the pcnilentiary. He has appealed from the judgment, and assigns er-
ror in the charge of the court.
The evidence shows that the prisoner was under the influence of liquor
when the offence was committed. The circuit judge charged the ji.ry :
"If defendant luid been drinking, much or little, it would be a circum-
stance for the Jury to look to for the purpose of ascertaining whether
tlie defendant's mind was so influenced by liquor as to incapacitate him
from forming a deliberate and premeditated design, that is, his mind
was so much influenced by licpior as to be incapable of contemplating
the result of his acts, and if this was the condition of his mind, he could
not be convicted of an assault with intent to commit nunder in the first
degree ; but if his mind was not in that condition, and was not so much
influencec: by liiiuor as to prevent iiim from forming a deliberate and
premeditated design, drunkenness would then be no excuse and would
not lessen the crime."
In Swan v. State,^ Judge Rkesk, while very strongly stating the
doctrine that " drunkenness is no excuse for crime," adds that " when
the nature and essence of a crime is made by law to depend upon the
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, is a proper
subject for consideration and inquiry by the jury. The question in such
case is, what is the mental status? Is it one of self-possession, favora-
ble to the formation of a fixed purpose by deliberation and premedita-
tion, or did the act spring from existing passion, excited by inadequate
l)rovocation, it may be, on a peculiar temperament, or upon cue already
excited by ardent spirits? "
In 9 Humphrey, a the conviction was for murder in the second degree,
and it was held that the drunkenness of the off'-iJer in the case of mur-
der in the second degree, or manslaughter, can lu -m no matter of legit-
imate inquiry, but that it is material where the inquiry is whether the
acts were done with deliberation or premeditation. In the case of Haile
V. State,^ a charge very similar to the one in this case was held errone-
ous. The circuit judge had instructed the jury : " If defendant was so
deeply intoxicated as to be incapable of forming in his mind a design
deliberately and premeditately to kill," this would reduce the kUling
to murder in the second degree.
4 Humph. 136.
^ Pirtle r. State, COS.
11 Uumph. 164.
GCO
DRUNK KNNESH.
St.iti- V. Tiitro.
Jiidjjjc! r. KKK.N, in comiiicntinp; on tlio opinion of .TikIlto Rki'sk in the
case ill I llmiipii., sriys: " Tliii court iiili'inU'd to Ik; uiitU'rstood as dis-
tinctly iiidiciitliig tliiit a doj;i'i'0 of drunkcnncs.s l)y wliicli the party was
jjreatly excited, and wliich produced a statt> of mind unfavorable to de-
liberation and premeditation, altliou<i;h not so exc">^sivc as to render tlio
party absolutely incapal)lo of formiiiijr u delilu' nrpose, mi<j;ht be
taken into consideration by a juiv in detennining whether the killiiijj;
were done with premeditation and deliberation." In that case, as in
this, the Circuit Court told the jury that intoxication could not thus re
duce the offence, unless it existed to such a tlegree as to render the of-
fender absolutely incapable of forming such a design.
All the cases cited hold that a dr'.inken man may premeditate and
deliberate, yet they hold that tiie evidence of the fact of intoxication is
proper to go to the jury, when they are to find whether the act in (pies-
tion was done with deliberation and premeditation, and that the jury
may determine whether the act is tlie result of deliberation and premed-
itation, or of passion aroused by inadequate provocation.
We are of opinion that the charge was erroneous in the particular in-
dicated and the judgment will be reversed.
INTOXICATION— WHEN NOT RELEVANT ON DEGREE OF CRIME
State v. Tatro.
[50 Vt. 483.]
In the Supreme Court of Verviont, January Term, 1878.
Hon. HoMKR E. RovcK,
" Tl.MOTUY r. RkDI'IELD,
" Jonathan Rosk,
" Walter C. Dixton,
• Judges.
Intoxication —When not Relevant on Degrree of Crime. — Where a murder is done b;:
some kind of wilful, deliberate aud premcUitatLMi killiiijj; other than by means of poison
or lying in wait, the degree of the offence is not lessened by proof that at the time ii
was committed the prisoner was intoxicntod, jiny more than it would be if it had been
perpetrated by means of poison or by lying in wait.
The prisoner was indicted and convicted of the murder of Alice But-
ler. He appealed.
r.sE in tho
)(»(l as (lis-
party wns
iblc to <!('-
render tlio
, miffht bf
the killiiif:^
3aso, as ill
ot thus rc-
ler the of-
iditnte and
xioiitioii is
■t in (ivioR-
\t tlie jnry
id premed-
rticular in-
CRIME
75.
ler is done by
ans of poison
It the time ii
if it had been
VOLL'NTAUY l>UL'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<l //. 5'. Itnycc, for the Stale.
RiJMiKi.i), J. :
(Omitting other (picstions.)
Tlie more important (picstion arises upon the charprc of the court upon
the effect of iufovication upon tlic grade of tiie offence. Tlie court
cliarged tlie jury that voluntary intoxication could neither excuse nor
mitigate the offenc<\ There is, perhaps, no priiicii)le or maxim of tlie
common law of T^,ij:!'ind more uniformly adhered to than that vohiiitary
drunkenness does nol, excuse or palliate crime. Lord I'oke, in his
Institutes, declares that " whatever liui't or ill he doth, his drunkcMness
doth aggravate it,"* And in his Reports,- he says: "Although he that
is drunk is for the ixma non compon mentis, yet his drunkenness doth not
extenuate his act or offence, nor turn to his avail." And Sir IMatthew
Hale, eminent alike for liis humanity and learning, says of drunkenness,
wliicli ho calls dementia ajfi latu: "This vice doth deprive men of
the use of reason, and puts many men in a perfect ])ut temporary
frenzy ; * * * but by the hiws of England, such a pci'son shall have
no privileges by his voluntary contracted madness, but shall have the
same judgment as if he were in his right senses. And Lord Bacon, in
his " iMaxims of the Law,"*' in that comprehensive language which
(dearly defines, and gives the reasons for the rule of law, thus asserts the
doctrine : "If a madman commits a felony, he shall not lose his life for it
l)ecausc his infirmity came by act of God ; but if a drunken man commit
a felony he shall not be excused, because the imperfection came by his
own default." In Burrow's Case,'* Holroyd, J., thus defines the rule:
" It is a maxim in the law that if a man gets himself intoxicated he is
answerable to the consequences, and is not excusable on account of any
crime he may commit when infuriated with liquor, provided he was pre-
viously in a fit state of reason to know right from wrong." And tho
cases of Rex v. Grindley and Rex v. Meakin^ show the uniformity of this
rule in the courts of England. In the case of People \. Rogers''' the
Supreme Court had reversed the conviction of Rogers, on the ground
that the court had excluded the evidence of the respondent's drunken-
ness, as affecting the criminal intent. But the case was, by writ of
error, carried to the Court of Appeals and the whole law upon that sub-
ject was reviewed and canvassed with great learning and ability by
Alioe But-
) 3 Thomas' Coke Lit. 46.
a Uevccley'B Case, 4 Coke, 123 b, 125 a.
3 Rule 5.
* lLewin,75,A. D. 1823.
» 7 C. & P. 297.
« 18 N. Y. 9.
662
DRUNKEXXESS.
Stati' r. Tfitro.
Chief Justice Denio and Hauris, J. ITarkis, J., says: " The Supreme
•Court si'Cin to have understood that in all cases where without it the
law would impute to the act a criminal intent, drunkenness would Lc
available to disprove such intent. I am not aware that such a doctrine
has before been asserted. It is certainly not sound. The adjudica-
tions upon the subject, both in P^ngland and in this countr}', arc numer-
ous and characterized bj"- a singular uniformity of language and doctrine.
They all agree that where the act of killing is unequivocal and unpro-
voked the fact that it was committed while the perpetrator was intoxi-
cated cannot be allowed to affect the legal character of the crime."
But it is insisted that under the statute wliicb makes "degrees" of
murder, drunkenness qualifies and mitigates the higher offence. The
statute declares that '• all murder which shall be perpetrated by means
of poison, or by lying in wait, or any other kind of deliberate and \n'e-
meditated killing, shall be deemed murder in the first degree." Tlr
same or similar statute has been enacted in most of the States. And
many courts have allowed drunkenness to be shown in mitigation of the
higher offence. In the case of State v. Jo nson,^ the court held that
intoxication, as tending to show that the prisoner was incapable of de-
liberation, might be given in evidence. Chief Justice Seymoir dis-
sented, and Foster, J , who tried the case below, did not sit, so that
the four judges constituting the court were, in fact, equally divided.
The same case came before that court again,- and the opinion
was delivered by the same judge. The court were hard pressed
with the former opinion in the same case, and that it had taken a de-
parture from the common law. But the court repelled the intimation,
and declared that " we have enunciated no such doctrine," but hold
"on a trial for murder in the first degree, which, under our statute, re-
quires actual express notice, the jury might and should take into con-
sideration the fact of intoxication, as tending to show that such malice
did not exist." And in the sanK' opinion, the judge says: "Malice
may be implied from the circumstances of the homicide. If a drunken
man takes the life of another, unaccompanied with circumstances of
provocation or justification, the jrvry will be warranted in finding the
existence of malice, though no express malice is proved. Intoxication,
which is itself a crime against society, combines with the act of killing,
and the evil intent to take life which necessarily accompanies it, and all
together afford suflRcient grounds for implying malice. Intoxication,
therefore, so far from disproving malice, is itself a circumstance from
40 Conn. 130.
' 41 Conn. .'334.
DEGREES OF MUliDEK,
()(;3
Evi(U'iico of Druiikeiinoss Irri'li'vaiil.
Supreme
out it the
would Lc
I doctrine
adjudica-
re nuracr-
doctrine.
id un pro-
as intoxi-
j crime."
rees ' ' of
cc. Tlic
by means
and pre-
;." Tbr
3S. And
on of the
icld that
e of de-
oiR dis-
, so that
divided.
opinion
pressed
?n a de-
imation,
but hold
tute, re-
ito con-
h malice
' Malice
drunken
ances of
ling the
:ication,
killing,
and all
ication,
36 from
which malice may be implied. We wish, therefore, to reiterate the doc-
trhie emphatically, that drunkenness is no excuse for crime, and we
trust it will be a long time before the contrary doctrine, which will be
so convenient to criminals and evil disposed persons, will receive the
sanction of this court." This reasoning seems to us both illogical and
incongruous. To constitute murder of the first degree the act must,
indeed, be done with malice aforethought, and that malice must be ac-
tual, not constructive. At common law, if the accused shoot his neigh-
bor's fowls, and by accident kill the owner, he is guilty of murder, yet
he did not intend to murder, but to steal. Such cases are excluded by
the statute from the definition of murder in the first degree. But
" where the act is committed deliberately, with a deadly weapon, and
is likely to be attended with dangerous consequences, tlie malice requi-
*site to murder will be presumed ; for the law infers that the natural and
probable effect of au}^ act deliberately done was intended by its actor, i
and intent for an instant before the blow, is sufficient to constitute mal-
ice." 2 It will be admitted that if the respondent had killed his victim
"by poison or lying in wait " the act would have been murder in the
first degree, and the fact that he was intoxicated could not have been ad-
mitted to excuse or palliate the crime. Yet it is claimed that if the
circumstances show that the murder was deliberately planned, and exe-
cuted with fiendish barbarity and malice, drunkenness may come in to
palliate the crime.
This, we think, is making a distinction without a difference. Chief
Justice IIoRNBU)WER,3 speaking of the New Jersey statute, which is like
ours, says: "This statute, in my opinion, does not alter the law of
murder in the least respect. What was murder before its passage is
murder now — what is murder now was murder before that statute was
passed. It has only changed the punishment of murder in certain
cases ; or rather, it prescribes that, in certain specified nif)des of com-
mitting murder, the punishment shall be death, and in all other kinds of
murder, the convict shall ue punished by imprisonment."
The evidence, so far as detailed in this case, if believed, shows a
murder most fiendish and shocking. He destroyed the last resisting
vitality of this woman, struggling for her life, with an axe, which shows
malice and malignity of purpose. The language of Chief Justice
McKay, while discussing a like statute in Pennsylvania, and in a case
quite similar to this, is fitting and sensible. He says: " It has been
objected that the amendment of our penal code renders premeditation
' 2 Am. Com. T.aw, 944.
» /*. 948.
' 1 Am. Crim. Law, sect. 1103.
()<)4
DRUNKENNESS.
Uo\it V. IVoplc
an indisputable ingredient to constitute murder in the first degree. But
still it must be allowed that the intention remains, as much as ever, the
true criterion of crime, in law as well as in ethics ; and the intention of
the party can only be collected from his words and actions. # ♦ *
But let it be supposed that a man without uttering a word should strike
another on tlie head with an axe, it must, on every principle by which we
can judije of human actions be deemed a p'-emeditated violence." The
statute has in no degree altered the common-law definition of murder.
But the killing of a human being by poison, or lying in wait, or by pur-
posely using a deadly weapon to that end is murder in the fir;t degree ;
and the purpose and intent to kill must be determined by the circum-
stances tiiat surround each case ; for the murderer takes with him no
witnesses, and does not often avow his purpose. Where the requisite
proof is adduced to show a wicked, intentional murder, he is not per-
mitted to show a voluntary and temporary intoxication in extenuation
of his crime.
The respondent takes nothing by his exceptions.
INTOXICATION — DEGREES OF MURDER.
IIoPT V. People.
[104 U. S. 031.]
In the Supreme Court of the United States, October Term, 1881.
Hon. Morrison R. Waite, C/ii>/ 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 i<hull be murder in the first degree, evi-
dence that the accused was intoxicated at tlie time of the killing is competent for the
consideration of the jury upon the question whether he was in such a condition of
mind as to be capable of deliberate premeditation.
In eurou to the Supreme Court of the Territory of Utah. The
opinion states the case.
I>E(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 <loing, the fact of intoxication may doubtless be given in evi-
dence for what it is worth for the purpose of showing that he did not
intend at the time to do what he in fact did do. So far as we are
advised, there is no reported case in Ohio requiring us to go beyond
this ; and to this extent, on a fair constrtiction of the language of the
' Pignian v. State, 14 Oliio 555.
DUIXKENNESS.
GG9
Not Kilcviiiit (111 Ciui'stioii of Miilici;
court below in eliargiiig the jury, the piisoiior, in the case before us,
had the boneJlt of the evidence in regard to liis state of intoxication.
And tliis, too, seems to be tlie full extent to which we are led by the
general current of authorities in other States.
We will not say but that, admitting the eorreetness of tiiese decisions,
a refined and rigid logical theory might not require us to go further.
Rut here the authorities authorize us to stop; and here we think a
proper regard to the i)ublic safety in the practical admuiistration of
criminal justice requires that we siiouldstoi). This kind of evidence is
at best, and in any case, of dangerous tendency in its practical applica-
tion. Intoxication is easily simulated. It is often voluntarily induced
for the sole purpose of nerving a Avicked heart to the firmness requisite
for tiie commission of a crime soberly i)remeditated, or as an excuse for
such crime. Yet these pre-existing disjjositions may be difficult or
impossible to prove. And when we ailniit evidence of intoxication to
rebut a guilty knowledge requiring nice discrimination and judgment,
to rebut a charge of deliberation or premeditation, and to show that the
accused did not at the time intend to do tiie act which he did do, we
think we l»ave gone far enough ; and that, looking to the practical
administration of the criminal law, a due regard to tlie public safety
requires that the mere question of malice should be determined by the
circumstances of the case, aside from the fact of intoxication, as in
other cases.
Motion overruled.
SvTAN, C. J., and Scott, Sutuff, and Peck, JJ. , concurred.
INTOXICATION — WHEN AN EXCUSE — BURDEN OF PROOF-
DOUBT — MORAL INSANITY — TEST.
Smith v. Co^niONWEALTii.
RATIONAL
[1 Duv. 224.]
In the Court of Appeals of Kentucky, Summer Term, 1864.
Hon. Joshua F. Bullitt, Chief Justice
'« Belvaui) J. Peters, ^
" RuFUS K. Williams, > 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\vhclmiii<j; iiilliieiice as inmal iiisiinil\ , and itionouiices JL as excul-
patoi'v as tlio otlier form cnlled intellect nal insanity. No enliy;htened
jurist now d()ul)t.s tho existence of such !i type of moral, contradistin-
<;uished from intelleetind, insanity as liomicidid mania or morltid and
uncontrollahle a|)|tc(ite for man-killing; and pynimania. or the like pas-
sion for Innisti burnini;' ; and kleptomania, or an ii resistible inclination to
steal. In each of tluise eases, and others of a kindri'd eliaractcr,
wliether the nnnalural passion bo eongenital or only the offspring of
some supervenient cause, moral unhinifemeiit, anil a snltjngated or sub-
sidized will, are the invariable eharaett'ristics. This is disease, and tho
man thus doomed to the anarchy of morbid and ungovernable jiassion--
is, in law as well as in fact, insane, anil to the cxti-nt of the operation
of that blind and brutal inlluenee, he may be no more rc8i»onsiblc than
a tiger or other brute. But if his insanity extend no further than a
morbid perversion and preternatural power of insane passion or emo-
tion, he not only " knows right from wrong," but knows also that tho
act he is im|)clled to do, is forl)idden both by moral and human law.
Yet, nevertheless, his will being {laialyzed or subordinated, the uneon-
trollable appetite ncji'ssitates an act which he knows to be wrong and
justly punishable. But as he was a helpless puppet in the hands of
Briarean passions he is no more a lit 8ul)jectof punishment than an ani-
mal without a controlling will, or than he, himself, would have been,
had he U'ver been blessed, with that moral pilot of the passions. The
instrucUoii as giviMi excluded any such insanity from the jury. The in-
struction given by the circuit judge in the case of Cruhaiti v. Commoii-
ivealth was much moi-o eomi»rehensive, and as nearly right as any wc
have seen on that subject in any case. Ft was as follows : '"The true
test of responsibility is, whether the accused had snflicient reason to
know right from wrong, and whether or not he liad >a- 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 .'<hould be aequittcd.
led malice
and man-
ffect, that
time is lU)
tion, liow-
known to
i of other
f the jury
otherwise
th all tlie
Df malice,
rationally
ir, and fix
3iay have
far more
ag to till'
ooni, it is
L', in deli-
md dclih-
lat much,
cuude re-
ISSAULT
["IONS.
> 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<j
explan.'ition of the remark was made to the jury. We think it ought not
to have been made, and was piejudicial to defendant. The error was
not cured by an instruction given to tlie jury which we will now proceed
to consider.
2. Ill the sevntli instruction tiie eourt declares that '•there is some
evidence tending to show that defendant was drunk." This huiiruaire.
we are constrained to believe, would be understood as expressing the
opinion of the court as to tiie quantity and weight of the evidence on
the (juestionof defendant's drunkenness, which was unfavorable to him.
Indi'cd, the expression will hardly bear any other interpretation.
Without the qualifying word •' some " the expression would have been
free from objection.
3. In the same instruction the court directs the jury that drunken-
ness is no excuse for the perpetration of a crime. But the jury are in-
formed that the drunkenness of defendant may be consitlered in order
to determi'.i ■; his intent. The following language is used in expressing
this discretion. " Whether defendant at the time of the assault was too
diunk to be capable of exercising his will, and forming in his mind a
purpose to ravish the girl — in short, to distinguish lietween right
and wrong — is a question of fact for you to determine from
all the facts and circumstances disclosed by the evidence."
The instruction thus calls the attention of the jury to certain
facts and circumstances to be considered by them, and directs
the jury that if defenilant '• was in too imbecile a condition to form a
(h'sign or purpose to ravish the girl," they could not find him guilty.
We think the jury were unnecessarily sent into the uncertain field of
inquiry relating to the capacity of defendant to exercise his will and
"to distinguish between right and wrong." and that the jury may have
been tempteil into the ri'gioii ( f speculation r;ither than directed to con*
G80
DRUNKENNESS.
Wood V. State.
elusions to be drawn from the facts by the aid of common sense and the
obiigaLions of every-day life. Tlie jury should have been plainly told
that if they found from the evidence that defendant was so drunk that
he was incapable of forming an intent to ravish the prosecutrix they
should find him not guilty. ' '
[Omitting rulings on other questions.]
Reversed.
LARCENY — INTENT — DRUNKENNESS
Wood v. State.
[34 Ark. ;U1; 30 Am. Rop. 13.]
In the Supreme Cotirt of Arkansas^ November Term, 1879.
Hon. E. II ExoLisii, Chkf Justice.
" John R. Eakin, } •^"'^^««-
One wron^fally taking' the property of another, but too drunk to entertain a feIonioa»
intent, cannot be convicted of larceny.
Conviction of larceny. The opinion states the case.
Henderson, Attorney-General, for the State.
Hakrison, J. — The appellant was tried and convicted of the crime of
grand larceny in stealing a pistol, the property of one Cheek.
The pistol, which was of the value of $8, was taken from the room of
the owner, at a hotel, and out of a coat pocket, on the night of the fiftli
of August, 1879, and was, on the fifteenth of the same month, found in
the defendant's possession.
Tlie defendant, a lawyer, had been for three or four years ver}' in-
temperate, and for several weeks before he was found with the pistol in
his possession, almost continuously drunk. On the night of the fifteenth
of August he was very drunk — according to one of the witnesses, crazy
drunk — and the constable, learning that he had a pistol, to prevent his
doing harm, took it from him, wlien it was found to be the pistol that
had been taken from Clieek's room. When it was taken from the de-
fendant, he said it had been given him by one Ilamp. Lane, who had
then — as was proven at the trial — loft the county. Several witnesses
testified that tlie defendant's conduct during his spree, or drunkenness,
INTENT KEQUISITE TO LAKCKNY.
681
Drunkenness may Prevent Intent.
was strange and unnatural - quite different as is the effect of ordinary
drunkenness - and tl.at lie appeare,! den.cnted to some decree One
of them, a physician, ^vho had known him two or three year!, said that
there were times during his spree when he thought he did not know
what he was about, and he believed his mind, by long and excessive in-
<lulgence in ardent spirits, had become impaired ; and another physician,
who was called to see him on the seventeenth day of August, the da^
after his arrest said he found him suffering with symptoms of mania a
potu, and that the functions of the brain were partially paraly/ed
It was proven that the defendant had previously borne a good char-
acter for honesty and integrity.
The court was asked to instruct the jury for the defendant, that if
they believed from the evidence, the defendant took the pistol, but that
at the time he was so under the inlluence of intoxicating liquor that a
felonious intent could not have been formed in his mind, they should
find him not guilty ; which instruction the court refused to crive
As a general doctrine voluntary intoxication furnishes no^excuse for
crime, even when the intoxication is so extreme as to make the person
unconscious of what he i. d<,ing. - Perhaps no better illustration of
the doctrine says Mr. Bi.hop, ^' can be given than to state its appli-
cation in ordmary eases of 'homicide. The common law divides all in-
dictable homicides into murder and manslaughter; but the specific
intent to kill is not necessary in either. A man may be guilty of mur-
der w.tUout intending to take life. He may be guilty of^ma.fslaughter
without so intending ; or he may intend to take life, yet not commit any
crime in taking it. Now, the doctrine of the courts is, that the inten-
tion to drink may fully supply the place of malice aforethought; so
that If one voluntarily, becomes so drunk as not to know what he is
about, and tlien with a deadly weapon kills a man, the killin<. will be
murder, the same as if he were sober. In other words, the mere /act of
drunkenness will not alone reduce to manslaughter a homicide which
would otherwise be murder, much less extract from it altogether its in-
dictable quality." • But he says that " in cases where the law requires
not general malevolence, but a specific intent to commit the particular
uct, which intent must concur with the act in point of time, in order to
constitute the offence charged against a prisoner, he cannot be guilty,
If at the time when the act transpired he was so drunk as to be incapable
ot entertaining such intent." 2 '
"Intoxication is no excuse for crime," said Judge Baldwin in U.
^. V. Roudeuhmh,^ " when the offence consists merely in doing a crim-
' 1 Bish. Crim. I p.^r, sect. 401.
/rf. ieot. 40.S.
' IRaldw.SlT.
682
DRl'MvENXESS.
State r. Ili-ll.
inal act, without regarding intention. But wlicn tlic act done is inno-
cent in itself, and criminal only when done with a corrupt or malicious
motive, a jury may, from intoxication, presume that there was a want of
criminal intention ; that the reasoning faculty, the power of discrimina-
tion between right and wrong, was lost in the excitement of the occa-
sion. But if the mind still acts ; if its reasoning and discriminating
lii'^ulty remain, a state of partial intoxication affords no groiuid of a
favorable presumption in favor of an honest or innocent intention in
cases where a dishonest and criminal intention would be fairly inferred
from the commission of the same act when sober. ' '
III larceny there must be a concurrence with the act — an intent to
do it — and also a felonious intent ; and the same author we have
quoted says: "A bare intentional trespass not being larceny, but the
specific intent to steal being necessary, also, if one who is too drunk to
entertain this specific intent takes property, relinquishing it before the
intent could arise in his mind, there is no larceny."
The instruction should have been given.
[Omitting minor matters.]
The judgment is reversed, and the cause remanded, with instructions
to grant the defendant a new trial.
Jtalgmevt rerersed and cause remapded.
DRUNKENNESS— ADMISSIBLE ON QUESTION OF INTENT.
State v. Bell.
[29 Iowa, an;.]
Itx the Supreme Court of Iowa, June Term, 1870.
Hon. Chester C. Cole, Chief Justice.
" Gkorgk G. WRiam,"
" JosKiMi M. Hkck, [judges.
" E LIAS II. Williams,
Sronkennep*' —Intent. — In a prosecution for breaking and entering a dwelling house.
with intent to conunit litrceny, tlic drunkenness of the prisoner at the time ia admissible
in evidence on the question of intent.
Appkal from Des Moines District Court.
• /rf., seel. 411 : Wenz r. <i:\ir 1 ]\'\. Api>. :!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, an<l to i)roperly comprehend
the consequences of the act ; the i^tatas of tiie mind heing the test by
which the character of homicide is determined, whether murder of the
first or second degree. We are not aware of any case decided by o}ir
appellate courts in wliich it is held that drunkenness will excuse or
Justify crime. To thus hold wouM }w. a solecism; for, if in fact a
crime is committed we are not aware of any fact which can excuse or
justify its commission. The law knows no excuse or justification of
crime. If the acts which ajnstitutc the crime are excused or justified by
law, they are not criminal. Whilst drunkenness cannot excuse or just-
ify crime, it however may be shown in order to determine whether any
crime, or a particular crime has been committed at all ; but, if committed,
though the party be ever so drunk, there can in the very nature of things
be no excuse or justification.
We have examined all of the other errors complained of, but find no
errors in fact — that is, such ei-ror, over which we have revisory
power, as will require a I'cversal of the judgment of the court below.
The judgment is affirmed.
Affirmed.
INTOXICATION — INTENT — INSANITY.
RoBERTis V. People.
[19 Mich. 401.]
In the Supreme Court of Michigan, January Term, 1S70.
Hon. James V. CAMPnEi.i., Chirf Justice.
" Isaac Chuistiancy, \
" Rr.x.JAMi.v r. Graves, \ Aasociate Justices
" TnoMAS M. COOLEV, J
1. Intoxication — Intent.— Voluntary iiU'>xieatioii 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<illby tho inoiiiiK iihocI, his
voluntary iiitoxiciilioii will Im no protiiciion, altlioimli his uuMital facuilii's were tliuruliy
HO obscurcil US to iiiuliu liiin incaixiblo of judging butwcon riKlit and wronj;.
•\, Insanity occasioned by voluntary intoxication will not oxciisc where tho porson Is
aware of lu> 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 <lefendant's acts constituting
the assault ; the temper or disposition of mind with which they were appa-
rently performed, whether the instrument and means used were naturally
adapted to produce death, his conduct and declarations prior to, at the
time, and after the assault, and all other circumstances calculated to
throw light upon the intention with which the assault was made.
The principle which we have thus endeavored to explain, seems to
have been overlooked by the court. And taking the whole charge (given
ill the record), together, we think the jury were in effect told, that if
they should find the defendant made the assault alleged, in the manner
and with the instrument charged in the information, the law inferred
the intent charged, and they were at liberty to find the defendant guilty,
whether they were satisfied of the intent or not, as a matter of fact —
unless they should find " that the defendant was laboring under such a
defect of reason from disease of the mind, as not to know the nature
' Rex V. Thomas, 1 East P. C. 417 ; 1 Leach,
MO; Kex V. Holt, 7 C. & V. 518; Cnise'e
Case, 8 C. & P. 541; Rex v. Jones, 9 Jd.
•i5S; Regina v. Ryan, 2 Mood. & K. 2l:i;
Rex V. Duffin, Russ. & R. .304 ; Ogiltree r.
State, 28 Ala. 60:?; Maher v. People, 10
44
Mich. 212; People v. Scott, 6 Mich. 296 (per
Campbell, J.); RoscoeCr. Et. 775, 790; Biab.
Cr. L. sects. «(«, (167).
= Sects. 41'2 and 667.
'■' 6 Mich. 2%.
■
(190
DRUNKENNESS.
Roberts v. Peopli!
and quality of the act he was doing, or if he did know it, that he did not
know what he was dcviiig was wrong."
Tlie second question raised by the exceptions, is whether the vohm-
tary drunkenness of the defendant, imraediately prior to, and a1 the
time of tl\e assault, to a degn^e that would render him incapable of en-
tertaining, in fact, the intention charged, would constitute a valid de-
fence, so far as related to the intent, and leave the def^^idant liable
only for what he actually did — the assault without the aggravation of
he intent.
It was ver}' properly admitted by the defendant's counsel in his re-
quest to charge, that if the defendant had formed the intont, while in
possession of his mental faculties, and entertained it before and at the
time lie became intoxicated, his subsequent voluntary intoxication to
whatever extent, would not shield him from a conviction of the offence
charged, including the intent, nor even for niurdtr, had death ensued
from the assault. And the principle laid down by Mr. Bishop in his
work on Criminal Law,i was also expressly admitted, that " when a man
voluntarily becomes drunk, there is a wrongful intent; and if, wliile too
far gone to have any further intent, he does a wrongful act, the intent
to drink coalesces with the act done, while drunk, and for tliis combina-
tion of act and intent he is criminally liable." But it was insisted thai
the application of this case woiiid be that the drunkenness is no excuse
for the assault, but being charged with the particular intent accompany-
ing the assault, this could not exist, if he was too drunk to entertain it.
That the wrongful intent in drinking does not supply or aid the proof of
ail intent to kill.
The correctness of the principle laid down by this court in People v.
Garbutt,^ is not denied, tliat " a man who voluntarily puts himself in'o
a condition to have no control of his actions, must be held to intend the
consequences." But tins, it is insisted, includes only the consequenci'.s
which do actually ensue — tlie c^irae actually committed ; and not in thi>-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<n iM-
} defend -
been !-<">
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<jr acts done in a state of voluntary intoxication.
This doctrine is novel, anomalous and startlini?. It is a dangerous in-
novation upon the well established principles of the criminal law, and
we have no hesitation in rejecting it.
The tenth charge of the court is taken from 1 Bishop Cr. Law.' The
same doctrine, as stated in almost the same words in the following sec-
tion, was admitted to be the law in Roberts v. Pcojile.- The correctness
of the author's theory of the rule, by whicli drunken men are held to
intend their criminal acts, is immaterial. The rule itself is correctly
state il.
There was no practical error in the eleventh instruction, viz. : " The de-
fendant is ecpially guilty whether he intended the act ct)mplained of or
not. The only^ixcf for the jury to find in this case is, whether or not
the defendant deposited a ballot both at the First and Second Wards of
this city, on the occasion of the city election, held April 1, 1873. And
if you find tluit he did so deposit the two ballots, j-ou will find him
guilty, in manner and form as charged in the indictment."
The language of this instruction is not happily chosen, and cases
might easily be supposed where such a charge would unduly restrict the
province of the jury, and mislead them into an erroneous verdict. But,
as we have already shown, the present case falls within the general rule,
that men are presumed to intend their voluntary acts ; and it was the
duty of the jury, upon satisfactory proof of the acts done, to find the
intent in accordance with the legal presumption. The instruction, in its
application to the facts of this case, was therefore substantially correct.
The judgment and the orders appealed from are affirmed, and it is di-
rected that the sentence pronounced by the District Court be executed.
I Sect. 488.
19 Mich. 417.
voTiNO twk;k at klectios.
701
Pcoiilc r. Hiirrls,
3 intent to
ilted ; but
; " a state
t seems to
act w liicL
no practi-
an excuse
itoxicated
)ted from
3xication.
Reruns in-
law, ami
w.'
TlK
iVing eec-
•rrcctness
•e held to
correctly
'The de-
led of or
er or not
tVards of
'3. And
find him
id cases
strict the
.'t. But,
sral rule,
was the
find the
3n, in its
correct,
it is di-
cecuted.
VOTING TWICE AT ELECTION — INTENT — DKUNKENNESS RELEVANT.
Peoplh r. IIaukis.
[2i) Cal. fl7H.]
In tibe Suprcvie Court of California, April, 1866.
Hon. Silas W. Sanhkuson, dhicf Justice.
" John Ciuuky, ^
<< LOUKN'/.O SAWYint, I
«' At(iisTrs L. HiioDKs,
'< OSCAIJ L. SHAI'II':!!,
1- Assistant Justices.
Voting Twice at Election -Intent- Drunkenness. -Tlio ;u;t of voting more than
once at the same election is m.t ii criuio unless ilone knowingly iind with wrong
intent. Thereforo a person charged with this crime may show that he was intoxicated
at the time ho committed the act, not as an excuse for the crime, but to enable the jury
to determine whether his mtuital condition was such that he knew ho was committing
an otfcncc.
Appeal from the County Court, City and County of San Francisco.
The facts arc stated in the opinion of the Court.
Alexander Campbell, for appellant.
J. O. McCulloiKjh, Attorney-General, for the People.
By the court, Cuuuky, C. J. —The defendant was indicted for voting
twice at the general election held on the 6th of ScptcMuber, lK6r>. 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.
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23 WIST MAIN STRIET
WEBSTER, N.Y. UStO
(716)872-4503
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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; ^ aii<l in harmony with this doctrine is the whole
current of English authority.-* Mr. Wharton says that in this country
the same position has been taken with marked uniformity, it being
invariably held that voluntary drunkenness is no defence to the factuvi
of guilt; the only point about Avhich there has been any fluctuation
being the extent to which evidence of drunkenness is receivable to
determine the exactness of the intent or extent of deliberation.'"* In
PUjman v. State,^ it was held that a man who passes counterfeit money
is not criminally liable if he is so drunk as to be incapable of knowing
that it is counterfeit, and consequently of entertaining the intention to
defraud, provided there was no ground to suppose ho knew the money
to be counterfeit before then ; and in Sican v. State,'* the Supreme Court
of Tennessee said: "Although drunkeiuiess, in pointof law, constitutes
no excuse or justification for crime, still, when the nature and essence
of a crime is made by law to depend upon the peculiar state and con-
dition 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 mind is a proper subject for consideration and inquiry by the
jury. The question in such case is what is the mental status?*'
In Reg. v. Moore,'' the defendant was indicted for an attempt to
commit suicide by drowning, and in defence it was alleged she was
unconscious from drunkenness at the time of the nature of the act.
The court was of tlie opinion that if she was so drunk as not to know
what she was about, the jury could not find that she intended to
destroy herself.^
While the condition of the accused, caused by drunkenness, may be
taken into consideration by the jury with the other facts of the case, to
' 7 0. 4 p. 817.
« 7 C. A p. 297.
» 1 Whart. Cr. Law, sect. 39.
* Id., sect. 40.
5 14 Oh io, 55.5.
« 4 IIunii)li. l::o, Ml.
7 3 C. A K 319.
» Reg. V. Cruise, 8 0. & P. S46; United
States f. Uondenbush, 1 Haldw. 517; Kelly
V. State, 3 Sni. & M.518; Piitle r. State, 9
Humph. UC:i; Ilailc v. state, 11 Humph. 154.
DRUXKEXNESi.S.
705
Not an JCxciiso for Crliiio.
enable them to (leeidi! in respect to the question of intent, it is proper
to observe that drnniienness will not excuse crime' Tiie in(iuiry lo be
made is whetiior tlie crime wliich the defendant is accused of having
committed /las in point of f<,rt been committed, and for this purpose
whatever will fairly and legitimately lead to the discovery of the mental
condition and status of the accused at the time may be given in evidence
to the jurjs and may be considered by them in determining whether
the defendant was in fact guilty of the crime charged against him.
Great caution is necessary in the application of this doctrine, and those
whose province it is to decide in such cases should be satisfied beyond
a reasonable doubt, from all the facts and circumstances before them,
that the unlawful act was committed by the accused when his mental
condition was such that he did not know that ho was committing a
crima, and also that no design existed on his part to do the wrong
before be became tinis incapable of knowing what he was doing.
We have said more respecting the character of the defence or excuse
imposed than would have been necessary, but for the reason that it
is important that those who may be guilty of violating the law may
understand that a state of intoxication can be of no avail as an excuse
for crime.
The court told the jury, as we have seen, that the statute makes the
act of voting more than once at the same election, and not the act
of voting knowingly — that is, intentionally — more than once at any
one election, a crime. The court further charged the jury, in sub-
stance, that evidence of voluntary intoxication is properly admissible
as affecting crime only in those cases in which it is necessary to ascer-
tain whether the accused was in a mental condition whiih enabled him
to form a deliberato premeditated pur[)()se to commit the offence ; but
in the same connection the jury were told in effect tliat the case before
them was not one of those cases in which the defendant could interpose
the defence that he was intoxicated to a degree rendering him uncon-
scious of what he had done and of the wrong wliich he was doing.
The court then instructed the jury, at the request of the defendant's
counsel, that every crime involves a union of act and intent or criminal
negligence. That the law does not punish a man for his intention, but
that act and intent must unite to constitute a crime ; but at the same
time the court refused to modify in any degree the charge already
given, though specially requested so to do.
46
1 People V. King, 27 Cal. 614.
700
DKUXKKNNESS.
lu'lly and Little v. Slate
Taking thcso two portions of the charge togetlicr wc may understand
the court as dcchuing: —
First. Tliat a crime la constituted by the commission of a forbidden
act, united with a felonious intent on tlio part' of liim who does the act
or caused it to be done.
Second. That tlie act of voting more than once at tlie same election
was a crime, even tliough not done with knowl'.'dge, on tlie part of him
who so votes, that he was voting the second time.
Third. That the case befuiO the jury was not one in which the
defendant coidd sliow that by reason of his Intoxicated condition he
did not know what he was doing when he voted tlie scond time.
We do not see how these charges, involving the Oiuestion of felonious
knowledge or intention can be harmonized. The second and third stand
in direct antagonism to the first, and the greater prominence was given
to the one of which the defendant complains, and which wc think to be
erroneous. We are of tlie opinion t' •, court erred 'also in excluding
from the jury any consideration of t . mental stahis of tlie defendant
by reason of his intoxicated condition when he voted the second time.
The judgment is reversed and a new trial ordered.
Mr. Justice Sa vyer expressed no opinion.
INTOXICATION — RELEVANT ON QUESTION OF INTENT AND MALICE.
Kelly and Little v. State.
[:i S. & M. 618]
In the High Court of Errors and Appeals of Mississippi, November
Term, 1844.
Hon. William L. Sharkey, Chief Justice.
" Alkxaxdkk Ci.avton, )
'« J. S. B. TiiACiiEU, \J'^^Oes.
Mere intoxication Is no extennation or excuse for crime ; but it may ba considered by the
jury upou the questiou of iuleiit or lualice.
In ekuor from the Circuit Court of Smith County.
At the April term, 1844, of the said court, Archibald Kelly and
Archibald Little were indicted jointly for the murder of one Jack, a
INTOXICATION NO EXCUSE FOU CRIME.
f()7
Aflly and I.lltlo v. State.
ndcrstund
forbidden
>es 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 re<iuestetl by him on the trial ; that the court erred in refusing to
charge the law applicable to the case, and also in overruling the defend-
ant's motion for a new trial.
It ajipears from the transcript that the parties and their attorneys
failed to agree upon a statement of facts, and that tlie evidence was
made up and certified by tlie judge who presided at the trial. After
stating tlie evidence of the State's witness, Juan Flores, on direct and
cross-examination, and the defendant's witnesses, Jose Wells, Billy
Menger, and Ferdinand Hahn, and in rebuttal the State's witness, H.
D. Bonnet, the statement of facts may be summarized as follows : —
The defendant went to the store of one Harder ; it was apparent when
he came there that he had been drinking. He called for beer, and drank
eight glasses in succession. He then went out of Harder's store, and
across the street to the store of a person named Smith. Miss Smith,
a 3'oung lady, was in the store at the time defendant came in and asked
her for beer ; she said she had no beer. He then asked her for w hiskey,
she said she had no whiskey, and told him he had better leave the s(oie
pretty quickly. He then ran out of the store, down the street, and into
the house of a Mexican named Juan Flores. He took down a shawl that
was hanging on a peg in the wall, worth $2, and ran out of the door,
across an open lot. The Mexican, who happened to be in the house at
the time, upon being told by a little bo}-, who stood near the door by
which the defendant entered and left the house, that a man had taken
710
DIUNKKNNKSS.
Wfiiz r. Stiito.
t))c Hliawl, sliirted in pursuit ttf the tlcfcndant, and (■tui<j;lit iiiiii lu'forohc
hiul j?i)t more tiiaii throe liuiidrod yards uway from tin* house. The
defendant at oncu gave up Iho sliawl, and Floras marched him off to a
police olllccr. Tiio defendant made no resi.stance, and was very drunk,
lit' had been omphiye(l in the city as a baker, but had been di.scharged
by various employers for drunkenness. It appeared also that he had
been sent to the penitentiary for attempting to rob a safe, or something
of the kind, and that he had been pardoned out. The State's witni'ss,
Juan Flores, proves the time of the alleged taking as on the morning of
the loth day of Slay, ISTr), ji;.>t 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 <M>ininitte<l it ; as for uxampto tliitt ho waiiloo drunk to have carried out a care-
fully cxucutud lurcuny.
RiiKOU to tho Circuit Court of Polk County.
The prisoner was indicted :ind convicted of the larceny of goods from
a shop.
"The evidence on the part of the Stale showed that a hole had l)een
cut in the upper part of a pane of glas-i in the lower sush, large ciiougli
to perniit the insertion of a man's hand and arm ; and that a nail which
fastened the lower sash had been removed, the window then opened and
the goods removed, without any disttirbance or confusion of the goods
in the shop which were not taken. The plaintiff in error had sworn that
he had been drinking very often, on the night the larceny was com-
mitted, of both whiskey and beer; and that he had left Janesville be-
fore the larceny was committed, and knew nothing about it He then
called as a witness one Albert Jones, who had .seen the plaintiff in error
in the evening, before the larceny had been (committed. The witness
was asked the following question: ' Where and in what condition was
lie?' The question was objected to by the district attorney as incom-
petent, and thereupon the following colloquy took place between the
learned circuit judge and the counsel for the defendant: —
^^ Judge: ' The testimony of the defendant here indicates, not only
the possession of his faculties, but a distinct remembrance of what took
place at the time ; and I don't see the propriety of taking up the time
to show his condition. The only question is, whether he was so under
the influence of liquor that he did not know what he was doing. He has
stated himself that he was at various places, and what he was doing.'
DICrXKENNKSS.
7i;j
Pliyslcal Iiicnpaclty to roininit Trlirn'
Counsel: ' We dosire to sliow that In- was in swell a condition thai lie
I'ould not have dnni; tliis job ns neatly as it was done.' JikUji- : 'I
don't underslainl you are entitled to show tliat. The evidence is only
admissililo for the purpose of sliowin*; tliat the person was so under the
influence of lifpior that ho did not comprehend what be was d )ing.'
Coumd: ' Wo offer the evidence for tlio purpose of showing that the
defendant was physically and mentally incapable of committing the burg-
lary as it is shown to have been done.' Court: ' If that is the purpose,
I will exclude it. It is only admissible for the purpose I have indi-
cated, and not for any other."
The defendant duly excepted to the ruling of the judge excluding
the evidence. Afterwards, in his instnictions to the jury, the learucfl
circuit judge reiterated the same idea n » tn the purposes for which the
intoxication of the accused could be considered l)y the jury, and said :
" One cannot shield himself under tb( plea of intoxi' ition to justify the
commission of any act; and the Oiily way tlri'^ intoxication becomes
admissible in evidence at all, is to show tli ■'. when the act complained
of was committed, the party was so inlL^xicated as to be beside himself,
was not in his right mind, and if that mental condition was produced
by temporary intoxication, why intoxication maybe shown. Rut die
testimony shows that the person was not so far gone, his mental facul-
ties were not so impaired by intoxication as to deprive hiin of reason
and put him in a condition where he didn't know what he was doing ; it
don't go as a defence at all. It is only when it tends to show that the
person who committed the act, by reason of intoxication, was not in bis
right mind, that it is a defence.' " This instruction was also excepted
to by the defendant.
Tatlou, J. — We are strongly impressed with the idea that the learned
judge did not fully understand the object of the offer to show the con-
dition of the defendant as to drunkenness at or about the time the lar-
ceny was committed. As we understand the offer, it was not to show
that the accused was in such a mental condition as would excuse the
commission of an act which would constitute the crime of larceny if
committed by a sober man. It was not offered as an excuse or defence
for a larceny committed, but for the purpose of showing that it was
highly improbable that the accused did in fact commit the acts com-
plained of, viz. : the entering of the shop, and removing the goods
therefrom ; not as a defence for want of mental capacity, but as evi-
dence tending to show that the acts which constituted the offence were
not done by the accused. This object of the evidence seems to have
been sufficiently indicated by the learned counsel for tiie defendant ;
714
DRUNKENNESS.
InKiills I'. State.
and for the purpose so iiidieiited wc arc of the opinion the evidence was
clearly eompetoiit.
Tiie authorities cited in the bri«.* of the learned counsel for the plain-
tiff in error ihuicate in wliat cases it is competent to show the intoxica-
tion of the accused upon the question of tlie particular intent with which
an unlawful or wrongful act was done, wiien such intent is necessary to
constitute the offence charged. None of tlie cases cited, liowcver, have a
direct bearing upon the point made in tliis case. It woidd seem, how-
ever, tluit tluTc can be no doubt as to the riglit of a person accused of
crime to sliow that at the time of Hs commission he was physically in-
capable of committing it. There can be no doubt of the right of the
accused to show that he was at the time prostrated by a disease which
rendeied it highly improbable that he could have endured the exertion
and labor necessary to commit the crime. Auu so we tiiink if, in thisi
case, the evidence had shown that within a few hours of the time this
larceny must have been committed, the accused had been temporarily
prostrate(i b}' drunkenness, so as to render it highly improbable that he
could have been present at the place where the crime was committed,
or, if able to be present, that ho could have done what the evidence
shows was d(nie by those who committed the larccn}', he is equally en-
titled to show tiiat fact. In such case the intoxication is not shown for
the purpose of excuse or mitigation of the offence charged; but as evi-
dence tending to show that he was not present and did not commit the
acts constituting the offence. Evidence of this kind would have but
little weight against direct evidence showing the actual presence of the
accused at the time and place when and w^here the crime was committed ;
but, certainly in the absence of any such direct evidence, the accused
may give in evidence any fact, which would have a natui'al tendency to
render it improbable tliat he was there and did tlie acts complained of,
and the fact that drunkenness was tlie thing which tended to prove such
improbabilit3% can make no difference. If a man by voluntary drunk-
enness renders himself incapable of walking for a limited time, it is just
as ct)rapetent evidence to show that he did not walk during tlie time he
was so incapable, as though he had been so rendered incapable by par-
alysis of his limbs from some cause f)vcr which he had no control. The
cause of the incapacity in such case is immaterial ; the material question
is, was he in fact incapable of doing the acts charged? We cannot
speculate upon the effect which the evidence, if admitted, would have
had upon the verdict of the jury in this case. It was offered, apparently
in good faith, as evidence temling to show that the accused could not
have committed the offence. Had the drunkenness been proved so com-
PKOVOCATION
dkoukp: or crime.
715
Koc'uau V. Commouwcaltli.
ideiicc was
• the plain-
i intoxica-
with which
icessaiy to
vvv, have a
ccm, how-
iccused of
sically iii-
ght of the
asc wliich
a exertion
if, in th.isi
time this
mporarily
)le that lie
jmmittcd,
! evidence
lually en-
shown for
lit as evi-
mmit the
have but
ice of the
mmitted;
J accused
idcncy to
ained of,
rove such
y drunk-
it is just
I time he
! by par-
rol. The
question
e cannot
uld have
)parently
ould not
I so com-
plete as to have destroyed his powers of locomotion, or so as to have
dostro^'cd the steady use of his limbs, it would have had a tendency to
disprove the char<;e made against him. The evidence being material, it
should have been admitted, and its rejection was an error for which this
court is compelled to reverse the judgment.
[Omitting other points.]
Judgment reversed.
INTOXICATION— PROVOCATION— DEGREE OF CRIME.
Keenan V. Commonwealth.
[44 Pa. St. 55,]
In the Supreme Court of Pennsylvania^ I8C2.
Hon. Waltkr II. Lowrik, Chief Justice,
•' Geokuk W. \Vooi>wai{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,
se<ts and factions that are most zealous for the rights of the individual
conscience, have very often been the least respectful of the rights of
KEKNAX V. COMMONWEALTH.
7iy
Intoxication.
conscience of any other society or faction than their own, and of the
conscience of otlier persons, and the most inclined to exert moral and
physical force, in order to impress their opinions and rnles of action
upon others, and thus the extreme of individuaUsm runs into tyranny or
despotism.
In most matters what is usual and ordinary in any given society is the
law of that society. All, therefore, must come up to the standard of
the usual and ordinary or take the consequences. Those who in their
conduct fall below the standard must, to that extent, sul)mit to the con-
demnation of society, cither legally or morally, according as rules trans-
gressed are civil or only moral. And those whose conduct lises above
that staudaid and yet harmonizes with it must always be accepted as
highly meritorious citizens. And this princii.le ai^.lies here ; f,>r 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.
" M.VTTHKW BlRCHAKI),"!
«< Nathaniel C. Read, ^Judges.
" Peteu Hitchcock, J
Drunkenncaa of the accused, at the time of p.-issing the alleged counterfeit bill, is a circum-
stance proper to be submitted to the couRidcration of the jury, and should have its just
weight in dctermiuing whether the accused knew the bill to be counterfeit.
This is a writ of error to the Court of Common Pleas of Marion
County.
The plaintiff in error was indicted for uttering, publishing, bartering,
and disposing of counterfeit bank bills. The proof was the passing of
a counterfeit bank bill of twenty dollars. A verdict of guilty was found
by the jury, and the plaintiff was sentenced to four years' imprisonment
in the penitentiary. A number of errors are aspijiiiotL "Hut the one
chiefly relied upon, or at all available, as disclosed i. .. >i;.? of excep-
tions, is that the court ruled out evidence offered :<y .;;?; accused, to
show that he was drunk at the time he passed the bi'i), A therefore did
not know what he was doing, or that the bill was counterfeit.
The case was argued for the defendant by James H. Godman. No
argument was submitted for the plaintiff.
Read, J. — Drunkenness is no excuse for crime ; yet, in that class of
crimes and offences which depend upon guilty knowledge, or the cool-
ness and deliberation with which they shall have been perpetrated, to
constitute their commission, or fix the degree of guilt, it should be sub-
mitted to the consideration of the jury. If this act is of that nature that
DULNKEXNESS.
721
Kc'luvant ()ii Question of Knowledge.
:l concern
vith niucli
iscover no
emitted
EDGE.
19 a circum-
ave its just
f Marion
arterinff,
issing of
'na found
isonment
; the one
if excep-
iised, to
jfore did
an. No
i class of
he cool-
rated, to
I be suh-
ture that
the law requires it should be done with guilty knowledge, or the degree
of guilt dei)euds ui)on the calm and deliberate state of the mind at the
time of the commission of the act, it is proi)er to show any state or con-
dition of the person that is adverse to the proper exercise of the mind,
and the undisturbed possession of the faculties. The older writers re-
garded drunkenness as an aggravation of the offence, and excluded it
for any purpose. It is a higli crime against one's self, and offensive to
society and good morals ; yet every man knows that acts may be com-
mitted in a fit of intoxication that would be abhorred in sober moments.
And it seems strange that any one should ever have imagined that a
person who committed an act from the effect of drink, which he would
not have done if sober, is worse tiian the man who commits it from
sober and deliberate intent. The law regards an act d(Mie in sudden
heat, in a moment of frenzy, when passion has dethroned his reason, as
less criminal than the same act when performed in the cool and undis-
turbed possession of all the faculties. There is notliing the law so much
abhors as the cool, deliberate, and settled purpose to do mischief. That
is the quality of a den. n ; whilst that which is done on great excite-
ment, as when the mind is broken up by poison or intoxication, although,
to be punished, may, to some extent, l)e softened and set down to the
infirmities of human nature. Hence — not regarding it as an aggrava-
tion — drunkenness, as anything else showing the state of mind or de-
gree of knowledge, should go to the jury. Upon this principle, in
modern cases, it has been permitted to be shown that the accused was
drunk when he perpetrated the crime of killing, to rebut the idea that it
was done in a cool and deliberate state of the mind, necessary to con-
stitute murder in the first degree. The principle is undoubtedly right.
So, on a charge of passing counterfeit money ; if the person was so
drunk that he actually did not know that he had passed a bill that was
counterfeit, he is not guilty. It oftentimes recjuires much skill to de-
tect a counterfeit. The crime of passing counterfeit money, consists of
knowingly passing it. To rebut that knowledge, or to enable the jury
to judge rightly of the matter, it is competent for the person charged to
show that he was drunk at the time he passed the bill. It is a circum-
stance, among others, entitled to its just weight.
Judgment reversed and cause remanded.
40
782
DKUNKENN'ESS.
Stiito (). McCaiits.
drunkennkss — pt'ovooation — when evidence op intoxica-
tion to be considered.
State v. McCants.
[1 Spears, 384.]
In the Court of Appeals of South Carolina, May, 1843.
* Judges.
llou.
J. S. Richardson,
I(
J. B.O'Nkall,
^i
J. J. Evans,
«
B. J. Eaklk,
II
A. V. Bl TLKI{,
K
D. L. Wakulaw,
]. One in a state ofVoluntary Intoxication is Bubjcct to the same rules of conduct
and the same legal inferences us a suhw ui;ui.
18. Provocation — Evidences of Drunkenness Relevant.— But where a provocation has
been received wliich if acted upon instantly would mitigate the otfence of a Hobor man,
and the que.slion in tliecuse of a drunlcun man is whether that provocation was in
iruth acted on, evidence of intoxication may be cousiidered.
Tr.ed before Wardlaw, J. at Charleston, May tei-m, 1842.
The indictment charged Thomas N. McCants with having murdered
William Ladd, en 19th of March, 1842, by stabbing hira to the heart
with a pocket knife. There was evidence that the prisoner was drunk
at the time.
Leaving to the j iry the evidence as to prisoner's being drunk, the
court instructed therr. that upon the question whether the prisoner acted
from a former grudge, or from sudden heat upon new provocation, his
intoxication might be considered as a condition frequently predisposing
to forgetfulness of former injuries and susceptibility of new offence ; but
that in deciding the question whether there was reasonable time for cool-
ing, drunkenness was not to be considered. For the law has no more
tenderness for the frenzy of the voluntary demon than for the diabolical
malignity of temper, which never cools in its thirst for revenge ; and that
in fine if the juiy took the view which the court did of the previous
threat and of the first fight, then the questions were, did the prisoner
cool, or was there time for a reasonable man to have cooled? In con-
sidering these questions, the presiding judge exhorted the jury to give
the prisoner the benefit of all rational doubts ; I pointed out (said the
court) the blood trickling from his face after the first fight — the violence
then exhibited by both parties, and the struggling between the prisoner
INTOXICA-
i3.
33 of conduct
•ovocfttion has
'a sober inun,
catloa was iu
murdered
) tlie heart
was drunk
drunk, the
oner acted
cation, his
edisposinj;
fence ; but
le for cool-
is no more
diabolical
; and that
e previous
e prisoner
In coii-
ry to give
(said the
e violence
J prisoner
.MUlJUEIl COOLING TI.MK.
7 2; J
Drunki'inii'.ss not lielcvaiit.
and Driggers ; and I dwelt less than my subsequent reflections have done
upon his pursuing with a drawn knife for two hundred and twenty-five
yards an unarmed foe, after the fight was stayed l)y iiis cry for separa-
tion.
The jury found a verdict of " guilty," but recommuided toexicutive
clemenc}'.
The defendant appealed on the following grounds :
1. Because the fatal blow was given in heat and passion, reasonably
excited during a sudden affray, and therefore the killing was only man-
slaughter.
2. Because his Honor charged the jury that the material question for
them, was, whether the interval between the first and second combat
afforded time for a reasonable man to cool, whereas, it is respectfully
submitted the jury should have been charged to intpiire whether the
suspension of reason, arising from sudden passion excited during the
affray, continued down to the time of the mortal stroke given, or whether
there were any such marks of deliberation as showed that the prsoner
did cool before giving the mortal stroke.
3. Because his Honor charged the jury, that upon a charge of murder,
where the material question is whether the act was premeditated, or
done with sudden heat and impulse, the fact of the party being intoxi-
cated was not a circumstance proper to be taken into consideration, with
a view to determine whether the prisoner was actuated by passion or by
malice,
Kunhardt, Thompson & Porter, for the motion.
Bailey, Attorney-General, contra.
Waudlaw, J., delivered the opinion of the court.
[After passing on the first and second grounds.]
In all cases where the time of cooling may be considered, whether the
time be regarded as evidence of the fact of cooling, or as constituting,
of itself, when reasonable, legal deliberation, the whole circumstances
are to be taken into the estimate in determining whether the time be
reasonable. The nature of the provocation, the prisoner's physical and
mental constitution, his condition in life and peculiar situation at the
time of the affair, his education and habits (not of themselves volun-
tary preparations for crime), his conduct, manner and conversation
throughout the transaction — in a word, all pertinent circumstances —
may be considered, and the time in which an ordinary man, in like cir-
cumstances, would have cooled, is the reasonable time. But shall his
drunkenness be considered? So far as previous habits of drunkenness
may have wrought a permanent influence upon the constitution, such in-
724
DHINKKNXESS.
Stttto V. MoCiints.
fluencc wiP he involvo;i in the consideration of tho otiicr circumstances,
but the direct effect of existing intoxication, however maddening or
stupefying, must l>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<msistent with the
power of discharging a pistol, the law of the transaction would have been the
.same. A man who can voluntarily shoot is capable of malice unless he can plead
some infl: niity besides drunicenness. To be too drunk to form the intent to kill,
he must be too drunk to form the intent to shoot. An intent to kill is the only
necessary ingredient of legal malice when neither justillcatiou nor adequate
provocation is made to appear. Moreover, the presumption that a man intends
not only the deed he docs, but the natural and proximate consequences of the deed
is, in criminal law, as applicable to the drunk man as to the sober man." In Estes
State,* Jacksos, J., said: " Tlie defendant shot Williams without the slightest
provocation, and whilst he was drinking considerably, he was sober enough to
intend to shoot, and he did shoot and hit him in the face, and the ball is lodged
there, just under the brain, inflicting a permanent and dangerous wound — such
» wound that excitement will endanger him for life, in the opinion of the
physicians who exa- 'ned him. lie was sober enough too to get off rapidly from
the place of the shooting, nor is there any motive suggested by the proof to
rebut tlie idea of a malicious intent, a careless disregard of human life. * * *
For myself I think that a man cannot voluntarily make himself so drunk, as if
he shoot and kill another without provocation the crime will be graded or
reduced from murder to manslaughter; or if he s'.ioot at another without provo-
cation, the crime can be made by drunkenness, less than assrult with intent to
murder. The statute is plain that voluntary drunkenness shall be no
excuse, and if it be made to lower or grade the crime, to lessen it in any case
whatever, it is thereby made some excuse, and that pro tanto fritters away the
solidity and power of the statute, * * * My brethren agree with me that
drunkenness is no excuse for crime, and that the court did not err in so
charging, and that the court was right in this case in refusing the request asked
' State
(1859).
2 2 Park. 16 (1823;
r. Bowen, 1 Hoast. Cr. Cas. 91
' 59 Ga. 154 1877).
< 66 Ga. 30 (1875.)
730
DRUNKKN.NESS.
Noti'i
for; 1 but wo did not consult and auree as to the effect of voluntary drunken -
ness upon intention in any case, or its effect in redncini? or palliating crime
under our statute in any case." In ,State v. Turner,' which was tried in Ohio in
isai, Wkujiit, J., in cliarLtin^ the jury said : " Much has been said to you about
the druulcenness of the i)risouer as conducing to show tliat he was of unsound
mind. No reliance can be placed \ipon drunkenness, as establishing the insanity
of a person whicli excuses liini from accountability for crime. The habit of
intoxication is highly immoral and vicious, tending to tlie destruction of the
beat interests of society — tlie severance of the dearest relations of life. He
who takes an inUJxicating draught voluntarily makes lumself mad, and the hi*,.,
by reason of such madness will not excuse him from responsibility for crinio;:
committed under its inlluence. If it were otherwise, the most hardened criminal
would escape punishment, and the corrupt and protligate and revengeful would
only have to intoxicate themselves to be exonerated from liability for crime, and
to acquire the right to connnit any act, however shocking and horrid, with
impunity. In our opinion tlie law does not afford to ])ad men such protection."
In State v. Bullock,^ on an Indictment for assault witli intent to kill, the trial
judge was re(iuested to ciiarge that although drunkenness did not incapacitate u
man from forming ai)renu'ditated design of murder, yet as drunkenness clouds
the understanding, and excites passion it might be evidence of passion only,
and of 11 want of malice and design. The refusal to so charge was upheld by
the Supreme Court. "The rule," said Chii.ton, J., "that drunkenness shall
not excuse or even palliate crime, has not, so far as we are advised, been
departed from. It is insisted by the prisoner's counsel, that although drunken-
ness does not excuse or justify the offence, yet it may be evidence of passion
only, and want of malice. It is certainly true that there must be malice, either
express or implied, to constitute the offence charged iu the indictment, and any
circumstances calculated to disprove its existence was proper to be considered
by the jury. Malice may be inferred from the deadly character of the weapon
used in the conunission of the act. Would the legal presumption deducible
from the use of such weapon, be rebutted by the fact that the party was intoxi-
cated? Suppose the prisoner in a state of intoxication, with a large knife, such
as was calculated to produce death, had without provocation assaulted and slain
his victim, would it at common law liavc been a sutTlcient plea to an indictment
for murder, that lie was drunk? If so, then drunkenness would excuse the
crime of murder. But we have seen that it is no excuse lorcrime." The judge then
goes on to distinguishsuch cascshs Pcnnsijlvania v. McFall,* and Swan v. State, ^
from tlie one at bar, on the ground that in those it was important to ascertain of
what degree of murder the prisoner was guilty, and concludes: "The mental
state required by the statute to constitute the crime was one of deliberation and
1 Which was " that the jury may take
into consideratum the fad of (lufunilant'a
fJruiikcnnoss to irraile tlie offenco, ami may
look to the fact in dotormining tlie intent,
and that if the jury sliould And that he was
not conscious of what he was doine, the jury
might take that fact into consideration, in
determining whether he intended, with
malice aforethought, to kill at the time be
shot."
a Wright, 20 (1831); and sec State v.
Tliompson, WriKlit, 022 (1831).
3 13 Ala. 413 (1848).
« Add. 2.''.7.
'•> 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, iui<l tlie judixe ehurnod the jury us
follows: —
♦'Timothy Lanagan died on the 25th day of May, 1853; he died of poison;
was this poison administered by tlie accused? Tliis is the first question whicii
will require your attention. If tiie evidence fails to satisfy you of thi.s fact, your
duty will here terminate. You will pronounce your verdict of acquittal without
reference to the other (|uestio!is in the case. But I Jiave not understood tlie
counsel for the defence as contendlnijc th,- the evidence justilies sucli conclu-
sion. The accused was in possession of the article wliich, upon post mortem ex-
amination, was found in the stomach of Lanagan. Some ten days or a fortnight
before she had purchased of Mr. Ostrom, the draggist, two ounces of arsenic.
About one o'clock on the day of the death, she went into Lanagan's house,
where she found the family, Lanagan, his wife, and Catharine Lubee, at dinner.
She sat down, upon invitation, to eat an egg and a potato. Soon after Lanagan
left the table and went into tlie grocery in the front room of the house. Tlie
accused then proposed to Mrs. I.iaiiagan and Miss Lubee, to iise the expression
of tlie witness herself, that they should drink beer from her. They at first de-
clined, but being urged they at length consented. She then proposed, in order
to make the beer more palatable, to put sugar in it, and requested Mrs. Lanagan
to procure it. Mrs. Lanagan, yielding to her request, procured from the grocery
somo line white sugar in a saucer; she then went back to get the l)eer, leaving
the accused and Miss Lub'je in the room. When she returned she found the
accused walking the room with the saucer of sugar in her hand, and she also
says she observed that she held in her thumb and ^nger a small white paper
folded. Two glasses Avere provided and the beer poured out. There was not
enough to fill them. The accused insisted that they should be full. Mrs. Lana-
gan returned to the grocery for more beer. When she went back the accused
was putting the sugar into the glasses. They were filled, and Mrs. Lanagan and
.Miss Lubee sat down ao the table to drink. Mrs. Lanagan says she observed
upon the surface of the beer a white scum, and thinking it might be dust that
had fallen upon the sugar while standing in an open box in the stoi'e, she took a
teaspoon to remove it; that while in the act of so doing, the accused, who was
staiiiling by, arrested her hand, and took the teaspoon from her, saying that was
the best part of it, and that it would do her good. At that moment Mrs. Lana-
gan was called to the grocery by her husband. She remained there, but lier^ius-
band came, and he and Miss Lubee drank the beer, lie died at seven o'clock
the same evening, and Miss Lubee died at four o'clock the next morning.
•« This branch of the case depends entirely upon the testimony of Mrs. Lana-
gan. TrL ill the nature of the case there could be no other evidence. Had she
imbibed the fattil draught instead of her husband, as was at first intended, there
would have been no one left to detail the circumstances. The credibility of
Mrs. Lanagan has not been questioned. If her story is to be believed, it would
seem to leave no room for doiit)t. You cannot hesitate, however painful it may
be, to come to the conclusion that it was the accused, and no one else, who ad-
ministered the arsenic which produced the death of Lanagan.
"Assuming that your mind will l)e brought to this conclusion, I proceeil to bring
your attention to another important inquiry — an inquiry which, from its very
nature, is fur more difficult. The inquiry is, whether at the time she committed.
I'KUl'LK V. mmiSHos.
735
In tlii^ Tiiul Court.
the act, ilw accused was in a condition to render her lejially responsit)lo for
crime? — and tins depends upon tiie (piestion wlicthcr, at tlie tiuic, slie was in a
state of mind whicii enabled lier to know tliut wliat slie did was wrong. If at
the moment of min<ilin<; that cup slie knew that she was doing wrong, and de-
served to be punished for it, then, whatever else there may be in the ease, before the
law, she is answerable for the act as a crime. The evidence of her coniluct be-
fore and after is of no importance, except as it reflects light upon )ier condition
at the fatal hour when siie connnitted the deeil for which she is now before you
to answer.
" It seems that about the period in question, the accused had indulged very
freely in the use of Intoxicating drink. Mr. Ostrom says that when she was at
his store on Saturday evening, wliieh must liave been the 21st of May, she was
quite intoxicated. Mr. Urownell savs that Avhen she came to his ollice in the
early part of May, he thought her the worse for liquor. Mr. Cox says she fre-
quently purch-'ised li(|Uor at his store, sometimes taking it there, and sometimes
taking it home with her. Mrs. Lanagan says that, early in the morning of the
25th of May, she came to the grocery and procured a quari of beer which she
took liome witli her, and as the deceased was living alone, it may be presumed
that she applied it to her own personal use. At eight o'clock she sent old Mr.
Haley to borrow $2 of Mrs. Lanagan, and before he left, she came herself. About
eleven o'clock she was there again. It is not proved that she drank then, but
she went into the room back of the grocery, where there were several men, and
engaged in noisy, boisterous conversation. Tlie fact tliat she was found in such
a place, and in such company, furnishes some ground for the belief that she was
then under the influence of lifiuor. Mrs. Lanagan says that, perceiving the noise,
she went into the room and told her to go home — that it was no place for her
to be there among such a set of men. At one o'clock she came again, and then
the poison was mingled with the beer. Shortly after she left, she sent Haley for
Mrs. Lanagan to come to her house. It is the tlieory of the prosecution that,
having failed in procuring Mrs. Lanagan to drink the poison, it was her object
to get her over to her house, so that she might yet execute her purpose. But of
this, of course, there is no proof. About three o'clock she was at the grocery
again, and asked for beer, Mrs. Lanagan says she told her she did not need
any, and declined to let her have it. The answer and the conduct of Mrs. Lana-
gan at this time, indicate pretty strongly, I t'link, the condition in which she
was at the time; or, at least, what Mrs. l^anagan thought of her condition.
While there, Lanagan came home sick, and Miss Lubce had already taken to her
bed.
" Upon this state of facts, the question presents itself whether at the time she
committed the fatal deed, the accused was intoxicated? That she was greatly
excited there is no I'eason to doubt. This is sufficiently evident from the fact of
her having visited the grocery so frequently. That she drank freely is, I think,
also evident. Was she, then, intoxicated?
•' It is my duty to say to you, gentlemen, that if she was intoxicated, even to such
an extent that she was unconscious of what she was doing, still the law holds
her responsible for the act. It is true to constitute the crime of murder there
must be killing of a human being with a premeditated design to effect death.
But this design need not be proved. Where the act is connnitted, the law im-
73G
DRUNKENNESS.
NoU's.
pijtcs llio (Ifslyii. It proceeds upon tlic sensible principle timt a man may rea-
sonably be presumed to intend to do what in fact he does. Thus, if amau will
draw from his pocket a i)islol and deliberately shoot down a fellow-man, the law,
without further proof, adjudges that it was in his heart to kill him. If ho would
excuse himself lie must show afllrmatively that he had uo such guilty purpose.
Then, and then only, can he beexon .rated from guilt. If it appear that by the
inscrutable visitation of I'rovidence tiie faculties of his nund had i)ecome so dis-
ordered, that lie was 'lo longer capable of discriminating between rii^lit and
wrong in respect to the act he has committed, then tlie law, in its justice, pro-
nounces him innocent of the crime. But if ills derangement is voluntary; if his
madness be self-invited, the law will not hear him when he makes his intoxica-
tion his plea to excuse him from puuisliment.
" If, then, the accust'd mingled poison in the beer that was drank by Lanagan,
the law charges her with a design to kill him, and tliough she may have been
excited by drink at the time, even to such an extent as not to know what she was
doing, she must answer for the consequences. Her self-inflicted insanity must
not be allowed to avail her for defence. The law imputes to her still a murder-
er's intent.
•' But it is urged, in behalf of the defence, that the accused was not merely in-
toxicated; that she was insane. If this be so — if by the visitation of God she
was bereft of reason as to be unconscious of the character of the act she was
committing, there is an end of her accountability. But before you can allow
this ground of defence to prevail, you must be satisfied of its existence by atllrra-
ative proof. Every person is presumed to be sane; when the contrary is
asserted it must bo proved. The presumption of sanity nmst be overcome by
satisfactory countervailing evidence.
" Upon this branch of the case it is your duty to examine the facts in the case
with the most diligent care, and here the question of motive may well be consid-
ered. It has been urged by the counsel lor the defence that there could have
been no possible motive for destroying the lives of Lanaganand Miss Lubee; and
that the absence of motive furnishes a strong ground for inferring tiiat the act
must have been connnitted in a state of insanity. The existence or want of
motive is always a legitimate subject of inquiry. In cases depending upon cir-
cumstantial evidence it is sometimes of vital importance. But it is never indis-
pensable to a conviction that a motive for the commission of the crime should
appear. The law imputes malice to the act so that the very proof of the killing
furnishes also presumptive evidence of malice. And yet, while the prosecution
is relieved, by this legal presumption, from proving an actual motive for the
commission of the offence, the absence of such i)roof is often an important con-
sideration for the- jiuy in determining the eff.'ct to be given to the other evidence
in the case. But it is contended, on the part of the prosecution, that there is
proof of a state of feeling which, considered in connection with the state of
mind exhibited by the accused at about the period in (piestion, relieves the case
of this objection. It appears that sometime during the spring there had been a
dance at Lanagan's. Though not one of the party, the accused went there and
became engaged in an altercation with one Smith, and angry words and loud
conversation ensued. If it be true, as has been assumed throughout the trial,
that the accused is of gentle birth, and had once moved in the higher and more
rKOI'LK r. KOIUNSJJN.
737
In the Trlul Court.
pro-
roflncd walks of life, wliat a painful iliiislratloii siic prcsonts of the rapid
descont which a woman uiaki's to tlu; lowest (lt'|)tli.s of di'f^radation and vicr,
when she oncc! consents to take leave of virtne and liinoeence! Here wt; have
this fallen woman, who is des(;rit)ed to ns as possessing higli aceompiisliments
and ladyllko manners, volnntariiy ndn;j;ling with the parties to a j;rocery danee,
ongajjinsj In a brawl with one of the party, and earrylng the <|narrel so far as to pre-
sent her revolver and threaten to slioot him. To (|ueil llie disturl)ance slio was
reiiuested to leave tlie honse, and llnaily Mrs. Lanajian led her home. Tins oc-
eurrence sconis to have stiiiij? her pride, for, one or tw(» mornings after, Ave llnd
her returninjjj to the grocery, l)efore I^anagan was out of l)ed, and she tlien, as Mrs.
I..anagan .says, commenced abnsing her, saying slie was a very mean woman to
keep a set of rowdies al)out her house to Insnlt her when slie came there. Her
language was so loud and violent tliat Lanagan got up, an<l coming into the gro-
cery, ordered her to leave, winch slie refused to do, until Mrs. Lanagan again
Interfered and induced her to go home. The result of this (piarrel was, that .she
did not again return to Lanagan's for some three weeks, after wliieh .she again
renewed her visits. It is the tlieory of the prosecution liiat tliese occurrences
left a sting rankling In the bosom of this woman, which needed but the excite-
ment, of which she was the subject on the 25tli of May, to arouse her to such a
degree as to make her resolve upon the destruction of tliose who had become the
sul)jects of herresentinent. Certainly, these circumstances would furnish to a
.sound mind but a slight motive for tlie commission of such a crime. How far
they would operate on an irascible temi)crament like; hers, when greatly excited by
stiiniilants, and perhaps other vitiating causes, it is for you, gentlemen, to
judge.
" There is another feature of this case which may have some bearing upon the
question under consideration, to which I would direct your attention. It is the
manner in which the deed was accomplished. We see no outl)urst of passion,
l)ut every tiling is apparently cool and orderly. First, the proposition to drink
the beer, and that insisted on; then, obtaining the sugar, the arrangements to
mix the poison wltli it, while the glasses were l)cing tilled; then the refusal of
the accused herself to drink, and her effort to prevent any of the contents of the
glass from being removed. Tliese are characteristics whicli may, perhaps, shed
more light upon the state of this woman's mind at the time.
"There is another class of evidence bearing upon the (|uestion of insanity to
which you will not fail to give the attention which you tiiink it deserves. I al-
lude to *he conversation of tlie accused a short time previous to tlie 25th of May.
This evidence is found chiefly in the testimony of the young sewing girl, Mary
Jane Dillon, who became acquainted with lier in March previous, Tlie testimony
of Anthony Goodspeed belongs to the same class. I will not recapitulate this
evidence. It cannot but be fresh in your memories. There certainly must have
been in the statements made to Miss Dillon, a strange commingling of trutli and
falsehood; the latter predominating. Whetlicr the tales she told were the
vagaries of a distempered imagination, or the inventions of her fancy, designed
to amuse her youthful and newly acquired friend, it is for you to inquire. There
was, too, something exceedingly strange at times in her conduct, especially
Avhen in the morning she came in her night clothes to the residence of Miss
4f
738
URUNKENNKSS.
Notes.
Dillon ami borrowed her dress. It will Im; your duty to satisfy yours«'Ivcs as to
tlio state of mind to wldcli tills conduct is to be uttrli)ut(>d.
" 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<J\.
789
In tlu! Appclliitc Court.
Ih your privilc^ro. Tlic law allows every well -srouiuled (loul)t to iivail for lior
acquittal. If after a full consideration of all facts in the ease nosiicli doubt rests
upon your minds, you must not hesitate, thouirh it l)e with aiifjidsh of heart, to
pronounce her guilty, lint if ycm can, after all, say tliat you are not satlslli'd
of her fruiit, it will i)e your ufireealjle iluty to pronounce a verdict of acquittul."
The jury found the j^risoner guilty,
(c) Drunkenness — Homicide — Insanity — People v. Robinson, on Ap-
peal. — t'onvicled below, Henrietta Rohiusou a|)peaicd to the Supreme Court,
alleging, amoiiu other things, error in the instructions of tlie trial court on tho
sut)jectsof druuicenness and insanity. Hut tiie judgment was adlriued 1)y tlie
Supreme Court. i "In charging tlie jury," said I'akkk.k, 1\ J., "tlio learned
judge made use of tlie following expression: ' It is my duty to say to you, gen-
tlemen, that if .slie (tlie prisoner) was intoxicated to siicii an extent that she was
uncoiLscious of wliat she was doing, still tlu; law lioids licr rcsi)onsibie for her
act.' And afterwards in otlier portions of the charge tlic judge said: ' Tliougli
the prisoner may Iiave been excited by strong drink at the time of the alleged
offence, even to sucii an extent as not to know whatsiie was doing, slie must an-
swer for the conse(piences; her self-intiicted insanity must not lie allowed to
avail her for her defence. Tlie law still imputes to her a murderous intent.' Ex-
ceptions were talccn l)y the prisoner's counsel to each of these parts of the
ciiarge, and their alleged erroneousuess constitutes the lirst ground on whicli
they now rely for a reversal of tlio proceedings of the Oyer and Terminer.
" If the proposition tiiat the law wouhl hold the prisoner responsible for her act,
thougli she was intoxicated to such an extent tliat she was uncouscious of wliat
she was doing, stood alone and unexplained by the context, so as to be distinctly
presented for adjudication, I sliould liave no liesitation in saying that it could
not be sustained, for l)y conceding the unconsciousness of tiie prisoner it con-
tains within itself a relinquisliinent of tiie legal i)r('sumption, tliat the prisoner
must have intended tiie natural consequences of iier own acts. It would, tiiere-
fore, condemn the act as the result of premeditated design, when it concedes on
its face that none existed. Tlie proposition standing l)y itself, would apply to a
person reduced liy intoxication to a state of insensibility; and would impute to
Lira a premeditated design to take life, if lie sliould by cliance kill a person by
stumbling against him or by rolling against him in a gutter. It would convict
of murder a drunken motlicr, wiio should smother her infant in her embrace or
by overlying it in bed, however strong might have l)een her affection for her off-
spring. It is hardly necessary to say, that no sound legal construction could
bring such a transaction witliin the statute detlnition of murder, whicii requires,
in all cases, like that now before us, a premeditated design to effect deatli.' But
it is apparent that it was not the intention of the judge to lay down any such
proposition. Tlic portion of the charge excepted to must be considered witli
reference to the facts of the case, and in connection witli other facts of the
charge whicli arc necessary to a proper understanding of its import and mean-
ing. The offence charged was that of murder by administering poison, the de-
1 People V. Robiusoii, 2 Park. 235 (183.^).
' 2 R. S. 657, sect. 5
740
DRUXKEXNEMS.
NoU'S.
fence principally rclli'd upon was insanity. It was not claiinod, nor was there
any cviiliMicu tu warrant a c-lalni, tliat tli(> 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 :<re made
))y law to depend upon the peculiar slate and condition of the criminal's mindat
the time with reference to the act done, drunkenness may he a proper subject
for the consideration of the jury, not to excuse or mitiiiate the offence, but to
.show tiiat it Avas not committed. There arc many cases recognizing this dis-
tinction.''
" Hut it is only in cases where death is caused by personal violence that it be-
comes necessary even in those States where murder is divided into degrees to
inquire whether llii' act was deliberate and ju'emeditated, for the purpose of
ascertaining the degree. For in all these Slates " poisoning" is specially placed
under the head of murder in the first degree. Even in Pennsylvania, Virginia,
.nnd Tennessee, llie defence of drunkenness could not, if proved, re<lucc the of-
fence to murder in tlie second degree. The very term " poisoning" implies de-
sign, and could not he criminally committed by a person in such a stale of mind
as to preclude premeditation. No case cv)idd possil)ly occur in which the act
could be perpetrated by a person in a state of insensibility from intoxlcalion;
and the degree of drunkenness, if less than fliat, would not he a material subject
for inquiry, for if there were enough mind left to conceive and perpetrate the act,
there would he enough to subject the offi'uder t<) legal responsibility. If, in the
case before us, the prisoner mingled arsenic with the drink of Lauagan ft)r the
purpose of effecting his death, or the death of any other person, slus was guilty
of inunler, though excited, no matter to wliat degree, by intoxication at the
time. Tliere was no |)retenci! tliat the mingling of the poison was the result of
accident, hut the most satisfactory evidtMice to the contrary. A person, stimu-
lated even to the highest pitch of fren/.y by .strong drink, n.:iy still he capable of
planning and executing a criminal dc'sign, and in such case, it is qidte clear, that
neitlit>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<jc-
nient below, is as follows: " A|)pellant next urj:;es that the verdict was
contrary to the evidence. There was testimony tending to show not only
that defendant conunitted the homicide at the time and place stated in the
indictment, but also that he conunitted it with |»remi'ditation and deliberation.
An effort was made by the defence to show that deceased committed suicide;
that defendant was insane, and that he was drunk at the tiuic. There was no
proof teudinf^ to establish the fact of suicide; none to show insanity at the
time, beyond that which is the innnediate effect of excessive drinking. On the
contrary, there was the testimony of many witnesses who saw the defendant
for days prior to the homicide, establishing the fact that he was at all times con-
scious of las acts, and knew good from evil. Under such circumstances we need
not repeat what has been so often decided by this courl, that upon this ground
the judgment of the court below will not be reversed. Third. Appellant claims
that the court niisinstructed the jury in a matter of law in this : At the instance
of defendant's attorney, the court instructed the jury as follows: 'In every
crime or public offence there must be a union or joint opi niliou of act and in-
tention or crimiinil negligence. Tliat intention is manifested by the circum-
stances connected with the perpetration of the offence and the sound mind and
discretion of the person accused. A person shall be considered of sound mind
who is neither an idiot nor a lunatic, or affected witii in><anity, and who hatli ar-
rived at the age of fourteen years, or before that age, if he knows the distinc-
tion between good and evil. Drunkenness shall not be an excuse for any crime
unless such drunkenness be occasioned by the fraud, coiitrivant'c or force of
some other person or persons, for the jturpose of causing the perpetration of an
offence.' At the instance of the district attorney, the court gave the following
instruction to the jury: —
" ' It is a well settled rule of law that drunkenness is no excuse for the com-
mission of a crime. Insiinity produced by intoxicatiou'does not destroy respon-
sibility whX'n the party, when sane and resi)onsil)le, made himself voluntarily
intoxicated; and drunkenness forms no defence whatever to the fact of guilt,
for when a crime is committed by a party while in a (it of intoxication, the law
will not allow him to avail himself of his own gross misconduct to shelter him-
self from the legal consequences of such crime. Exidence of drunkenness can
only be considered by the jury for the pnri)osc of determiidng the degree of the
crime, and for this puri)ose it must be received with caution.' Counsel for ap-
pellant urge that the last instruction conflicts with the former upon the question
of in-.inity. We do not think so. The lirst trc;its of settled insanity, the last of
temporary insanity, i)roduced inunediately by intoxication.
"An -uueiit writer upon crinnnal law thus states the established principles
upon this subject : —
" 'Settled insanity, produced by intoxication, affects the responsibility in the
same way as insanity produced by any other cause. Temporary insanity, pro-
' 12 NcT. 140 (1877).
i
744
DULNKEXXESS.
Notes.
duccd iimncillati'ly by intoxication, doos not destroy responsil)ility where the
patient, wlion sane and responsible, made liiniself voluntarily intoxicated. While
intoxication per se is no defence to the fa(;t of jjcnllt, yet, when the qnestion of
intent or i)reineditation is concerned, evidence of it is material for the purpose
of determining the precise dejiree.' '
•'Another author says: < When a man volnntarily becomes drunk, there is the
wrongful intent; and if while too far none to have any further intent, he does a
wrongful act, the intent to drink coalesces with the act done while drunk, and
for this combination of act and intent he is lial)le criminally. It is, therefore, a
legal doctrine, applicable in ordinary cases, that voluntary intoxication furnishes
no excuse for crime committed under its influence. It is so, even, when the
intoxication is so extreme as to make the person unconscious of what he is doing
or to create a temporary insanity.'^
" In United States v. McGlne,^ the court saj's: ' If a person suffering under
delirium tremens is so far insane as I have described to be necessary to render
him irresponsible, the law does not punish him for any crime he may commit.
But if a person commits a crime under the innnediate influence of liquor, and
while intoxicated, the law does punish him, however mad he may have been.' *
•' The testimony in this case shows that appellant, prior to January 2, 1877,
drank very considerably, and sometimes excessively for several years; that a
year or two before that time he had the delirium tremens. Hut there is no
testimony tending to show that he was so alHicted at the time of, or within two
years before the death of Mcllixvy. All the testimony shows that he drank so
much as to be undtr the influence of rKpu)r for several days prior to January 2.
And on that day he was so affected. The testimony further shows, that prior to
the homicide he was conscious of what he did, although under the influence of
liquor. Under such circumstances, any Instruction upon insanity, beyond that
which is the immediate effect of intoxication, would have been improper, and
would have been harmless had it been given, because there was no evidence to
which it couhl have applied.
"Temporary insanity produced by intoxication does not destroy responsibility
if the party when sane and responsible made himself voluntarily intoxicated. We
are satisfled the jury must have understood the instruction in that sense, and
that under the testimony it made no difference if they did not.
"This instruction was copied verbatim from one given in the case of People v.
Leicis,^ and also in People v. Williams,^ and it was declared correct in each case.
" We think the instructions taken together fairly present the law of the case."
(f) Perjury — Intoxication no Defence — People v. WlUey. — \n People y.
Willey,'' tried in New York in 1823, the prisoner was charged with perjury in
swearing out a warrant. His counsel offered to prove that he was intoxicated at
the time he came before the magistrate, and obtained the warrant and stated
that such a defence had been admitted by Chief Justice Spencku in a case of
perjury. Walworth, Circuit Judge : " It is a general rule in criminal prosecu-
i
' Wharton on Homicide, sect. 587, et $eq.
> 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.'
'<The erroneous instruction given l)y the court, to which we have heretofore
referred, confounding to a great extent the distinction between the offences of
murder iu the first and murder in the second degree, rendered it still more
essential, in view of the facts before the jury, that tjiey should have been cor-
rectly instructed upon the points suggested in these cliarges asked by appellant.
But as we have said, the court, instead of doing this, told the jury that the con-
dition of the defendant at the time of the homicide, the result of intoxication,
was an aggravation of the offence, and should be regarded by the jury — thus in
effect telling tlieni if the defendant was intoxicated he miglit properly be con-
victed of a higlier grade of offence, than the facts otherwise required; for it will
be observed it is the offence and not its penalty v hich the court tells the jury is
aggravated by ai)peliant's intoxication. It is nv less for us to say that the law
of this State gives no warrant for any such doct ne. While intoxication is cer-
tainly no excuse, much less justification for crii >, 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 <iuostion occurs may be a fact
of little or no signihcanco, or of the utmost importance, as it may connect itself
with or be shown by the other facts to bear ui)on or enter into the case. As
mere drunkenness does not relieve a party from responsibility for crime, when
the nature and degree of it does not depend upon the state and condition of the
mind at the time of its perpetration, the fact of intoxication is of little or no im-
portance in cases of this kind.
" But in the class of offences in which criminality depends solely or to a certain
degree upon the slate and condition of the mind at the time the wrongful act is
done, evidence of the state and condition of the mind, showing ability or inabil-
ity of the nund to form or entertain a sedate and ordinate criminal design, is
certainly of the most vital importance '
If the testimony shows the killing is upon an antecedent grudge or pre-exist-
ing malico; that it is tlie residt of a sedate, dolil)erate mind and formed design,
not cngoudored in an intellect clouded and confused by tiio fumes of li(inor, or
where the deceased, though slain l)y his assailant while the latter is under the
influence of liquor, if it ap])ear that it was taken merely to nerve luinself to
carry into execution his preconceived purpose, the fact of intoxication is of no
importance, unless it aiils to show more fully and dislinctly tlie pre-existing de-
sign in furtherance of which it has been used. 15ut where there is no evidence
of premeditation, or any n^ason to suppose that the act done is not the result of
design formed, as far as the mind may lie cai)al>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; alrea<lv seen, temporary insan-
ity, produced immediately l)y Intoxication, does not destroy respousihility where
the accused, wiien sane and responsible, made liimself voluntarily drunk. But
tlio crime to I)e punisiia!)le under such (•Ireumstances must take jiiaee and l)e the
iminediatu result of a tit of intoxication, and wliile it lasts, and not the residt of
insanity remotely occasioned by previous bad lial)its.' The only sui)stanlial
difference between tiu! law as tlius pronounced and the instruction com|)lained
of is in the omission fr. ■II the latter of tlie (lualifyiny clause Uinitin;; responsi-
bility to cases of tempjua.y insanity or fren/.y; but while under different cir-
cumstances this omission ndi;lit have been a serious matter, it certainly was of
no consequence under the testimony in tins case. There was not a sylial)le of
evidence of the existence of settled insanity. Tin! utmost that was (claimed, or
that tliere was the least testimony to estal>lish, 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 (!d<e effect to relieve from responsibility for crime.
There was no error in refusing to charge as reipiested upon tlie subject of in-
toxication."
In I'coplo, V. Batting,'^ tri I m New- York, In 1875, tlic prisoner was indicted for
murder. Ills intoxicati ii at the time being urged as an excuse, Wi:stii1!<m>k,,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<!ts, or for quietness
and unoljtrusiveness of manners, could have been shown than has been estab-
lished for him. But he stands before you now charged with the murder of his
wife. So clear is the proof that she died l)y violence, and that violence inflicted
by the prisoner, that his counsel does not insist on the contrary, but urges that
the crime is less in degree than that of murder.
" This is a question for you. Your duties are first to determine whether 'the
deceased came to her death by violence. If so, then next whether it was inflicted
by the prisoner. If you find in the afllrmative on both of these questions, your
next inquiry will be whether these acts of violence were, in the language of the
statute, ' perpetrated from a premeditated design to effect the death of the per-
son killed.' If so, then the prisoner is guilty of the crime of murder.
" The important question for you to determine, if you find that the prisoner
caused this deatli, will be the intent with which he did tills violence. What did
he intend? What did he design should be the result of his acts? Did he mean
to kill? Was that idea in his mind as he gave the blows? If so, the crime is
complete, and your verdict must pronounce it murder.
"And it matters not wliat was his state as respects sobriety or intoxication at
the time, provided you find he gave the blows with the design to kill; for, if he
2 Park. 223 (1855),
INTOXICATION AND INTENTION.
761
I'ooplo V. Ilaniiiiill.
meant that, then whether at the time he was drunk or sober, in eitlicr case, his
crime is murder.
"Whether he was intoxicated or otherwise, the question will still be: What
was his intent? Was it to kill, or only to wound and bruise? On the solution
of tliat question rests your verdict, for intoxication Is no excuse for crime. For
an act designedly perpetrated, although done when drunk, the law holds the per-
petr.itor to the same responsibility as if done when sober.
" But while intoxication does not excuse crime, in other words, does not ex-
cuse a party from the consequences of acts which he purposely perpetrates,
although drunk at the time, nevertheless the jury may always take into consid-
eration the fact of the intoxication of the accused just so far as it will aid them
In determining witli what intent the act was done. We do not always attribute
the same motives or intentions to the acts of a drunken man, that we do to those
of a sober man. We act upon this rule in every day life, and we act upon It be-
cause our experience teaches its correctness.
" A familiar example from such scenes as you have, probably all of you, wit-
nessed, will illustrate my meaning.
" A person in a state of intoxication approaches us In a rude or boisterous,
or in an unduly familiar manner. Do we not often feel, and, indeed, we know
that in all this there is an entire absence of the remotest idea of insulting or
offending? That such conduct results from an impaired judgment or power of
discrimination, or sense of propriety caused by the state of inebriety in which
we see him. Yet the same acts perpetrated by the same person in a state of so-
briety would lead us to no other inference than that insult and outrage were
intended. Intoxication partially impairs the judgment, as is exemplilled when
we see a man in his cups sometimes give blows which In their effects are far
more severe than he intends or is conscious of. It arises from his inability to
measure the strength lie is putting forth with the same accuracy he docs when
sober. All these things in every day life we consider when determining how far
a party has intended the full effect produced by his acts.
" In so far, then, as this man's intoxication may aid you in solving the ques-
tion whether, wheu he gave his wife these blows, he only intended to hurt, to
bruise, or meant that they should kill, you are at liberty to consider it, but not
otherwise. In looking in upon his mind, in analyzing its secret workings, mo-
tives and intent, during that fatal hour, this fact may throw some light upon
what he meant should be the consequences of his brutality and violence. So
far, and witli that view, you may consider it, but no further.
'* It is an old and salutary general rule of the common law that a man is held to
intend that which in the ordinary course of things would be the natural result
of his acts.
•* This rule is based upon sound reason and universal experience. Thus, if one
raises his rifle and deliberately flres its contents into the bosom of another, or
by a blow with an axe which might fell an ox, buries it in the brain of another,
the inference from the act is irresistible that death was meant, and so the law
presumes.
'* The inferences of the mind, which are equally presumptions of law, are cer-
tain and conclusive in proportion as the acts, from their nature and character,
are certain to result in death.
762
DRUNKENNESS.
Notes.
" Thus, the plunging of a poniard into the lieart of anotlior, wc do not doubt,
•was intended to liill, iiut if aimed only at tlie arm or leg, tliough death may be
the result, yet the mere fact of giving such a blow, so long as that is the only
criterion by which we judge, renders the intent more doubtful and the inference
less strong. So, if one beat a full-grown man Avith his list, and death ensues,
we would ordinarily feel far more doubt that death was intended than if it had
been produced by the use of a dangerous weapon. So, too, regard may be had
to the relative strength and powers of endurance of the parties, as well as to
the mode in which the violence is applied.
" A powerful blow given by the flst alone (but not repeated) upon the head of a
full-grown man would not ordinarily be regarded as intended to produce death ;
but what else could be inferred if the same blow were planted upon the temple
of an infant child?
" In many cases the inference that death is intended is as strong when the act
is perpetrated by a drunken as when perpetrated by a sober man. Thus, if by
a deadly weapon, as by a rifle or a bowic-linifc, a bullet or blow is sent directly
or designedly to some vital spot, we should infer that death was intended with
almost equal certainty, whether the perpetrator were drunk or sober. So, too,
when death is produced by poison, and we sec in the mode of its administration
stealthy calculation, we would infer that death was intended, whether he who
administered the poison was in a state of sobriety or intoxication, since in the
very character of the act we could read design.
" But we also know that Intoxication produces more effect upon the neiTOUS
system of some than of others. It clouds and obscures the judgment of one
more than it does another. It produces greater extravagance of exertion and
action in some than it does in others, and sometimes consequences result from
such exti'avagant exertion and action of which the party himself had no idea.
All these things are to be considered by this jury when determining upon this
question of intent.
"Had this prisoner, in a state of entire sobriety, thus deliberately kicked and
stamped upon his wife, and for that length of time which the mutilations of her
person showed must have been the case, this jury might not have hesitated in
believing that such brutality so long continued was the prompting of a murder-
ous mind.
" If, however, you find that he was in a state of intoxication which was affect-
ing his whole nervous organization; that in consequence his judgment was im-
paired and to such an extent that he was in a measure incapable of knowing the
degree of violence he was perpetrating, or of properly and accurately calculating
its effects to their full extent, all this the jury ma/ take into consideration so
far as it enables them to judge whether at the time of the violence, he meant
onlytobeator kill. If he perfectly understood what he was doing, and either
designed her death, or if he well knew that such was likely to be the consequence
of his acts, and yet kept on, neither considering nor caring what the result of his
violence might be, his crime is that of murder. But if his judgment was in part
obscured and his only intention was to severely beat his wife, but with no
thoughts that death was either certain or possible, then the jury must convict of
a less offence. His crime woulil be then of that species wliich the statute de-
fines as the * killing of a human being without a design to effect death, in a heat
I
INTOXICATION AND INTENTION.
763
State V. Avery; Keg. v. Monkhousc.
not doubt,
ith may be
is the only
inference
tth ensues,
in if it had
lay be had
1 well as to
le head of a
ice death;
the temple
len the act
^hus, if by
it directly
nded with
So, too,
inistration
jr he who
ice in the
e nei'vous
nt of one
rtion and
suit from
d no idea,
upon this
icked and
)ns of her
sitated in
I murder-
as affect-
was im-
)wing the
Iculating
ration so
he meant
nd either
sequence
ult of his
is in part
with no
onvict of
tute de-
in a heat
of passion, but in a cruel and unusual manner.' The prisoner has proved an
excellent previous character. In many casus tliis is of great importance, in oth-
ers none whatever.
"Where tlie intent to kill is clearly proved, if this is the only question, then
character avails nothing in defence. Wanton killing is as much murdor in tliu
virtuous as in the vicious. But where the intent is not certain, where the minds
of the jury feel that tlie scales are nearly poisoil, then the jury may do tliat which
the prisoner liumbly asks them to do here, throw tlic weight of his good cliarac-
tcr into tlic scales and t!ius secure a preponderance in his favor. In cases not
free from doubt, the law allows it. Tiie prisoner may, if you are not entirely
satisfied by the testimony, point to his past life. And urging the fact with all
the force to which it is entitled, say I have been of peace and quiet, not of tur-
bulence and blood; I have been uniformly honest, faitliful and industrious, kind
and affectionate in my family, attentive to all their wants and reputable and re-
spectable in society.
" He asks you to remember all these, and then to say whether he has from ' pre-
meditated design' killed tlie wife of his youtli and the mother of his children.
If he has, it is murder, and on your oaths you must so pronounce it. If you
find otherwise, but are still satisfied that she has died by his violence, you may
find a verdict of inunslaughter in tlie second degree."
The jury found a verdict of manslaugliter in the second degree.
In State v. Avery, ^ the defendant was convicted of cruelty to animals. On ap-
peal, the Supreme Court said: "The court we think was right in declining to
instruct the jury as requested by tlie defendant, that if intoxicated tlio respond-
ent could not have tlie wilful, malicious intent which is essential to the commis-
sion of the offence charged. Whetlier he had such an intent or not was a
question for the jurj-, and was riglitfuily left to them upon all tlie evidence; and
the judge was right in saying tiiatthe evidence was not necessarily weakened by
showing that he was drunk. There may be cases Avhere the intoxication of the
respondent may be weiglied, in determining wliother the malicious intent existed
as in Bex v, Thomas; ^ but no case goes tlie length of what was requested in this
case. But here the request was to instruct the jury, as matter of course, that
the respondent, if intoxicated, could not have the wilful and malicious intent
essential to the commission of the offence."
In Beg. v. Monkhouse, * tried before Coleridge, J., and Rolfe, B., in
1849, the prisoner was indicted for feloniously discharging a loaded pistol
at another witli intent to murder him. Several witnesses deposed to his
being in a state of intoxication shortly before the time the act was com-
mitted. Coleridge, J, (to tlie jury) : "There arc two points for your consid-
eration, — first, as to the act; second, as to the intent. With regard to the
latter, the allegation respecting it in the indictment must, no doubt, bo proved to
your satisfaction before you can find the prisoner guilty upon the full charge.
The inquiry as to intent is far less simple than that as to whether an act has been
committed, because you cannot look into a man's mind to see wliat was passing
thereat any given time. What he intends can only be judged of by what he does
1 44 \. ir. ;',92 (1362).
••! IC. & V. 817.
! I Cox. 5.5.
7(54
DRUNKENNESS.
Note's.
or says, and If he says nothing then his acts alone must guide yon to your deci-
sion. It is a general rule in criminal law, and one founded on common sense,
that juries are to presume a man to do wiiat is tlie natural consequence of his
act. The conse(|uence is sometimes so apparent as to leave no doubt of tlie in-
tention. A man could not i)ut a pistol while he linew it to be loaded to another's
head, and Are it off, without Intending to kill him; but even then the state of
mind of the party is most material to be considered. For Instance, if such an
act were to be done by a born idiot, the intent to kill could not be inferred from
the act. So, if the defendant is proved to have been intoxicated, the question
becomes a more sul)lle one; but it is of the same kind, namely, Was he rendered
by intoxication entirely incapable of forming tae intent charged ? The case
cited is one of great authority, from the eminence of tlie judge who decided it.
The only difficulty is, in knowing wiiether we get tlie exact words of the judge
from the case (juoted; and even if we do, whether all the facts are stated which
induced him to lay down the particular rule. Although I agree with the sub-
stance of what my brotlier Patteson is reported to have said,* I am not so clear
as to the propriety of adopting the very words. If he said that the jury could
not And the intent without being satisfied it existed, I shall so lay it down to you ;
the only difference between us is as to the amount and nature of the proof suffi-
cient to justify you in coming to such a conclusion. Under such circumstances
as these when the act is unambiguous, if the defendant was sober, I should have
no difficulty in directing you that he had the intent to take away life, where, if
death had ensued, the crime would have been murder. Drunkenness is ordi-
narily neither a defence nor excuse for crime, and where it is available as a par-
tial answer to a charge, it rests on the prisoner to prove it, and it is not enough
that he was excited or rendered more irritable, unless the intoxication was such
as to prevent him from restraining himself from committing the act in question,
or to take away from him the power of forming any specific intention. Such a
state of drunkenness may no doubt exist. To ascertain whether or not it did
exist in this instance, you must take into consideration the quantity of spirit he
had taken, as well as liis previous conduct. His conduct subsequently is of less
importance, because the consciousness (if he had any) of what he had done
might itself beget considerable excitement. You must not find him guilty of one
of these intents on mere guess; but, on the other hand, I am bound to tell you
that if you think one or all of them existed, there is evidence sufficient, in point
of law, to justify you in saying so."
The prisoner was found guilty on the count charging an intent to do grievous
bodily harm.
In Rex V. Meakin,^ the prisoner was indicted for stabbing with intent to kill.
He was proved to have been " something the worse for liquor " at the time. Al-
DEKSON, B., charged the jury tlius : " It is my duty to tell you that the prisoner'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 diff cent from a madness which
is not caused by any act of the person. That voluntary species of madness which
it is in a party's power to abstain from, he must answer for. However, with
regard to the intention, drunkenness may perhaps be adverted to according to
1 In R. r. Cruise, 8 C. & P. 646.
7 0. & P. 297 (1836).
your decl-
iinon sense,
ence of his
it of the In-
;o another's
the state of
, if such an
ferred from
he question
le rendered
? The case
decided it.
if the judge
;ated which
ththe sub-
lot so clear
jury could
\vn to you ;
)roof suffi-
lumstances
hould have
, where, if
is is ordl-
e as a par-
lot enough
1 was such
I question,
I. Such a
not it did
f spirit he
J Is of less
had done
ilty of one
io tell you
t, in point
' grievous
nt to kill,
ime. Al-
irisoner's
fiooses to
ess which
ess which
ver, with
ording to
DUUNKEN'NEiSS AM) KNOWLKlXiK.
7(;5
Suicide; t'onfos.sion
s.
the nature of the instrument used. If a man uses a stick you would not infer a
malicious intent so strongly against him, if drunk, when he niado lui intumporate
use of it, as you would if he had used a different kind of weapon; l)ut ivhere 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." Verdict guilty .
In Iteg. v. Cruine,^ tlie prisoner and his wife were tried, in 1838, before Pattk-
SON, J., for the nuirder of a natural child. It appeared tliat they were botli drunk
attlip time. The judge in charging the jury said: "Although drunkenness is no
excuse for any crime whatever, yet it is often of very groat Importance in cases
where it is a question of intention. A person may be so drunk as to be utterly
unable to form any intention at all, and yet he may be guilty of very great violence .
If you are not satisfied that the prisoners, or either of them, had formed a positive
intention of murdering this child, you may still lind them guilty of an assault."
The prisoners were convicted of assault.
It has been held in England that a person who at the time was so drunk as not
to know what she was about could not be convicted of an attempt to commit
suicide.*
That a person was intoxicated when he made a confession <joes only
to the weight of the confession and not to its admissibility.'^
§ C5. Drunkenness — Knowledgre. — On an indictment for passing a counter-
feit bill, tlie drunkenness of a prisoner is relevant on the question of knowl-
edge.* In U. S. V. Bondenbush,^ tlie prisoner was indicted for passing counterfeit
money. It appeared that he had previously sustained a good character and at the
time of the offence was on a carouse. Baldwin, J., said to the jury on this
point: " It is alleged that the defendant was on a frolic and intoxicated at the
time of receiving the counterfeit notes at Sliive's. Intoxication is no excuse for
crime, when the offence consists merely in doing a criminal act witliout regard-
ing intention. But wlien tlie act done is innocent in itself, and criminal only
when done with a corrupt or malicious motive, a jury may, from intoxication,
presunje that there was a want of criminal intention ; that the reasoning faculty,
tlie power of discrimination between right and wrong was lost in the excitement
of the occasion. But if the mind still acts, if its reasoning and discriminating
faculty remains, a state of partial intoxication affords no ground of a favorable
presumption in favor of an honest or innocent intention, in cases where a dis-
honest and criminal intention would be fairly inferred from tlie commission of
the same act when sober. The simple question is, Did he know what he was
about? Tile law depends on the answer to this question.
" The offence charged against Mr. Rondenbush is not for dishonestly receiv-
ing, but for dishonestly passing counterfeit notes. If he received these notes,
believing them to be genuine, you must be satisfied that he passed them as true,
knowing them to be false. But if he received them as counterfeits, then the act
of passing them as true completes the offence without further evidence. If you
1 8 C. & P. 546 (1838).
2 B. V. Moore, 3 C. & K. 319 (1862).
3 State V. Grear, 28 Minn. 426 (1881) ; C«m.
V. Howe, 9 Gray, 110 (1857).
* Pigman v. State, 14 Ohio, 556 (1846).
6 Baldw. SUdS-sa).
7()()
Dia'NKKNNKSS.
NutOH.
shall believe that when ho received these notes at Shive's he was In such a state
of hitoxlealion as not to know wliat he was ;;lvinfj or what he was n'ctivlng.ln
exchaiifie, then .you may say tiiat he did not receive tiieni as known connterfells;
and before yon can Uiul him {inllty will reiinire, besides proof of his passing them
as trne, i)roof of his knowledge that they were falsi;. This would be going to the
utmost extent wiiieh tlie law would warrant or reason justify, but putting him on
the fooling of a soi)er man who innocently should receive forged paper. The de-
fendant's counsel couUl not ask you to go furtlier in any case of the highest de-
gree of Intoxication. You will decide whether, from the clreuinstances of this
case, you will feel justilled in going so far. Should you be of o|)inlon, that
either from intoxication, ignorance, or the Imposition practised on 1dm by artful
villainy, he received the notes as good, or not knowing them to be bad, and
thus make every possible allowance in favor of the accused; you cannot extend
that allowance to the passing of the notes, when Intoxication has ceased, and
imposition could no longer be practised upon his ignorance, if ho then knew
them to be forged."
§ 0(i. Drunkenness — Kelevant to Explain Threats. — In Hex v. Tliomas^ it
was said by Pauki;, IJ. : " Wliere the question is whether words have been uttered
witli a deliberate purpose or are merely low and idle expressions, the drunkeu-
ness 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 manner
the state of drunkenness in whicli the prisoner was ought not to be regarded, for
it would furnish no excuse." In a Delaware case, the judge, in explaining the
exceptions to tlie rule that evidence of intoxication Is not adnussible on the
<luestion of the guilt of a crime, said: " The other is when antecedent threats,
menaces, or malicious and revengeful expressions are proved to have been ut-
tered by the accused Avhen drunk or intoxicated, and when it always liecomes a
legitimate matter for the grave consideration of the jury whether they are but
the idle and unmeaning declarations and denunciations of an angry and drunken
man merely, or are properly to be regarded as of graver and more serious and
sober impoi't, denoting an actual intent to do what he threatens, for the law
presumes a drunken man to be capable of conceiving and entertaining even ex-
press malice aforethought and perpetrating with premeditation and design mur-
der in the first degree under the statute." ^ In Eastwood v. People ' it was said :
" That it was of great importance for the jury to know whether the prisoner was
or was not intoxicated is obvious. It clearly did not necessarily follow because
the prisone- " od the expressions which I have referred to that he really enter-
tained the design which the words import. It not unfrcquently happens that
when men are Avrought up to a pitch of frenzied excitement by intoxication or
by passion their language assumes a degree of violence far beyond any deliber-
ate purpose which they have formed. Instances of this kind must have come
under the observation of every man of experience."
7C. &P. 817 (1837).
* State V. Hurley, 1 Houst.
(1858) ; Bee post, p. 874.
Cr. Cas. 28
> 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 receive<l wounds and bruises ui)on the head ; that
when quite young he was struck with a hoe near tlie crown of the head, produc-
ing an open wound, wiiieh after some time closed and healed up; that when
about twelve years old, the prisoner fell from a cherry tree, stril\ing upon his
head; that witness, with liis family, moved to llurtfonl in 18:57 or 1838, and soon
after the prisoner fell from tlie balcony of a second story, ami was brought home
insensible; that no immediate effect seemed to be produced upon the prisoner's
mind by this accident, but that soon after his conduct became strange. He tes-
titlcd that his (witness's) motlier had been insane for eigiit years, and some part
of the time in an insane hospital; that a brother of his mother becami; insane
and hung himself; that two sisters of his mother were occasionally insane; that
his grandmother on Ids mother's side was also insane. He stated tliat he and his
wife had always known tlie mind of tlie prisoner to lie not so strong as the
minds of their other children; that after the fall from the balcony the prisoner
was more carefully watched and kept in, and some painful indications were de-
veloped in the prisoner — as at times a remarkaijle prominence of tlie eye, and a
dullness which appeared to increase, and a physician was consulted. An effort
was made to educate the prisoner for college, but found that could not be done.
About this time a shoe of some female member of the family would be nussing,
and when found would frequently be wet and crumpled up; that a girl named
Almira Godfrey, who was living in witness's family at the time, was at first sus-
pected, but at length one of her shoes was missing, and wlien found was also
wet and crumpled like the others. The family tlien suspected Charley (pris-
oner) and soon found it was he who took away the shoes. When a shoe was
missing, it would be found sometimes under his pillow, sometimes between the
straw and feather bed, sometimes in his trunk, and sometimes in his pocket,
generally with his clothes wound round the shoe, as if to conceal it. That the
prisoner before his fall from the balcony, had been truthful, and of a frank and
open demeanor, and willing to acknowledge the truth, though to his own disad-
vantage. After it was found he took the shoes, whenever one was missed, and I
spoke about it, he would hang his head and say he did not know, but that the
shoe would be found somewhere secreted. On some occasions when a shoe had
been missed and found under his pillow, his mother would say to him, "Charley,
another shoe gone," to which he would reply, " I'm sure I didn't do it." His
mother would say, '• I found it under your pillow," then he would admit it. He
seemed not to have a memory of the fact. I punished him for taking shoes, but
I soon thought I could recognize the features of insanity in his conduct. Pains
were taken to keep shoes out of his way, and they were put in drawers, and
he -would take them out of the drawers in the night. At times the prisoner had
fullness of eyes, a vacancy of the eye was frequently apparent. We kept him in
evenings and away from exciting amusements. About the time of the affair for
which piisoner is on trial, he had complained a good deal of headache; that wit-
KLKITOMAMA.
781
Slfiiliiig Slim-s.
'var Willi a
fort'; tliut
iiL'ss; tluil
\u<^ at thf
; that tli(
liead ; tluil
tl, produc-
that when
a; upon his
I, and soou
ught home
prisoner's
. He tes-
sonie part
mw, insane
sane; that
, lie and his
mg as the
e prisoner
s were de-
eye, and a
An effort
)t be done,
le missing,
;irl named
t tlrst sus-
1 was also
rley (pris-
i shoe was
jtwecn the
lis pocket,
That the
. frank and
iwn disad-
ised, and I
at that the
a shoe had
"Charley,
it." His
nit it. He
shoes, but
ct. Pains
iwers, and
isoner had
ept him In
affair for
that wit-
ness luul sometimes sent Charles (the prisoner) to the country. Ho was onc((
away for about two years. His practice of taking and secreting shoes has been
continued down to the ju'esent time, although it has Intermitted. I went to board
with him last May. His wife would miss her shoes occasionally, and they would
bo found where the prisoner had .secreted them. On cross-examination, this wit-
ness said that he saw the wound from the hoe; that he did not sec the wound
caused by the prisoner's fall from the cherry tree, which took place in Vermont.
That ho saw the wound occasioned by the fall from the balcony; that all appre-
hension passed away In a day or two after the fall from the balcony, but soon
after came the protruding and glasslncss of the eye ; that he was then between
twelve and fourteen years old, and went to school ; that his moral sense seemed
to be somewh'it blunted; that ho was not as truthful as before.
There was also read In defence the deposition of Thomas Kprague, of Michi-
gan (a brother of prisoner), and of Mary E., his wife, and of Julia A. Hyde, a
sister of prisoner's father, and of Oliver Hyde, her husband ; of Rebecca Free-
man and Maria King, all witnesses living out of the State. The deposition of
Thomas Sprague and wife were principally to the habit of the prisoner while liv-
ing with them, to take shoes of ladies and secrete tlit-in. Some of the deposi-
tions spoke of the fact of the fall from the cherry tree in Vermont, and some
of them proved the insanity of the relatives of the prisoner, in corroboration
of the statement of the prisoner's father.
Charles H. Nichols, M. 1)., testilled that he was twenty-nine years of age;
that from May, 1«47, to March, 1840, he was at the State Insane Asylum at
Utica, and in April, 1H4'.), came to the asylum at Bloomingdale, of which ho had
the charge since. That w hilo he was at Utica, there were about eight hundred
patients in the asylum, and about one hundred and llfty at Bloomingdale. This
witness testilled that from the testimony in the case, he was clearly of opinion
that the prisoner was laboring under derangement of mind ; that the act charged
appeared to him to bo an in.saue act; that it was not uncommon for mono-
maniacs to secrete, and to endeavor to escape; that cases of strict monomania
were very rare, but do exist, and in such cases all conduct not affected by the
peculiar delusion, may be perfectly rational. The cases of insane impulse are
more frequent than those of monomania; acts done under insane impulse are
more likely to be remembered than those done under the influence of mono,
mania. Theodore L. Mason, M. D., testifled that insanity is the genus, mono-
mania a species, and that the impulsive characteristic may be common to both
general and partial insanity. He was partially insane, and that the act for which
he was on trial was done from an insane impulse. The evidence being closed,
the case was submitted under the charge of the court.
The Presiding Judge charged the jury, that there was no question made, that
the prisoner had done the act alleged in the indictment, and that the only *iues-
tion for them to decide was whether the prisoner at the time of the act done, was
a responsible moral agent. That if at the time he did the act the prisoner was
of sound mind, and capable of judging between right and wrong, then he was
guilty of the crime charged upon him, but if lie was of unsound mind, and acting
under an impulse which, at the time, overthrew or obscured his knowiedge or
capacity to judge of right and wrong, then ho was not capable of committing a
782
KI.KITOMANIA AND KOMNAMIU'LISM.
NotUH,
crime, atxl must he ])r<>noiiiico<l not jrullty. Tliat It soemcd (lulto unnecessary
to go Into any consldenitlon of the question of general Insanity, as tliu wliole
defenee iiud l)een put u|)on tliu grounil, tliat tlu; |)risoner was partially insane,
and tliat the peeullarlty of ids insanity, consisted in what ai)pear8 to tliu Hane
mind an objectless desire to possess lilmself of the shoes of females, and to hide
and spoil th(!m. That insanity, as a defence, was an alllnnatlvo matter; uud in
order to be allowed, must bo proved beyond all reasonable doubt. If they were
satlstled beyond reasonable doubt tliat the prisoner did the act cliarged iu the in-
dictment under an insane impulse, being at the time, incapable of liiiowing right
from wrong, it would be their duty to return a verdict of not guilty; but if tliey
were not satisfied of the prisoner's Insanity, It would be tlieir duty to give a
verdict of guilty. After a short absence the jury returned with a verdict of not
guilty.
Kleptomania, It was held iu a Texas case is a recognized form of insanity .^
§ 71. Somnambulism. — An act done in a state of somnambulism is innocent.
§ 72. Use of Opium. — In liogers v. State,^ on atrial for larceny, it appeared
from the evidence that the prisoner was addicted to the habitual and excessive
use of opium in some of its forms, and there was evidence from which it might
be inferred that at tlie time of tlie larceny he had been deprived of his accustomed
supply of the drug. He sought to show the effect of such deprivation upon his
mental condition, but the trial judge refused to allow him. On appeal this rul-
ing was reversed. "We tlilnlv," said the Supreme Court, "tlie evidence was
competent, as tending to siiow whether or not he was at the time in a condition
mentally such as to be able to commit a larceny."
§ 73. Erotomania. — On an indictment for the murder of a man, evidence that
the prisoner was the subject of erotomania, defined to be a morbid sexual desire,
is inadmissible.*
§ 74. Person of Low Mental Capacity. — In Patterson v. People,^ evidence that
the prisoner was of low mental capacity was rejected. " The offer was," said the
court in the words of the counsel, " not for the purpose of proving 1dm non com.
vos mentis, but the measure of his intellectual capacity. The law recognizes no
standard of unaccoun lability less than that which the offer disclaimed any attempt
to establish. If a low order of intellect and great ignorance arising either from
slowness of apprehension or a neglected education are to excuse a homicide, we
shall have a rule which will give far greater Impunity to crime than it now pos-
sesses. Every man must be held accountable for the consequences of his acts,
consciously and delll)erately performed, unless he can show that he is in that
condition which stamps him as an irresponsible being, and the proof indicated in
the offer made no approach to this."
1 liooneyw. State, 10 Tex. (App.) 620 (IMl)
» See Fain v. Com., 78 Ky. 183 (1879).
* 33 Ind. 543 (1870).
* State V. Simms. 71 Mo. 638 (1880).
> 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<l confessed to throwing It over, but said limt It died hi a lit, using language
Indicating an unsound mind. It appeiiivd fn.ui lh(> 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
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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
<i
> 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<I. He said to her tliat he wanted to see
her mother; she asked " What for? " and he replied, "Nevermind, I
want to see your mother." Tlie deceased, wlio was upstairs, heard the
sounds und hallooed down, '• Henrietta, who is that down there? " and
witness answered, " Mamma, just think ; it is that Willie Sindram." De-
ceased said, " What does he want in the house now? He has no right
in the house now." Tlie i)risouer tlien said: " Come down here and I
will show you wiiat I wani," speaking as the witness expressed herself
very saucy, crossly, angrily; witness then went part of the way upstairs
and looking back, saw the prisoner pulling out a pistol from his pocket
slowly, witness then called out, " Mamma, run; he has got a pistol ; he is
going to kill you." Deceased then opened a window which was in a
landing at the head of the first fiight of stairs, and called " "Watch,
police," out of the wimlow; the witness was at that time part of thewa}'
up the stairs, and the i)risoner ran up the stairs, pushing her on one side
and fired at deceased as she was calling out of tiie window. The ball
went througlj one of the panes of tlio window. Deceased then crouched
in the corner and the prisoner advanced upon her, and putting the muz-
zle of the pistol within three inches of her head, fired the second shot,
which proved fatal. On cross-examination tlie witness testified that no
words passed between deceased and prisoner except as before stated, and
<'xcei)t that when witness hallooed to deceased that the prisoner had a
pistol and was going to kill her, deceased said to him, " What do you
rn« ►V»)(ATIO\ — VIOLENT Tinil'llU.
805
DclilKTiitioii iiiiil I'rciiKMlitatiiiii.
)micitlc was
ur siidckn
ivas subject
Such proof
omitted the
of his char-
time which
just closed
lied for the
Lo the effect
up to that
aud, had re-
expressions
ly aiul make
J he came to
I the hall by
:ified that he
mtcd to see
;ver mind, I
s, heard the
here? " and
ram. ' ' De-
lias no right
1 here and I
scd herself
vay upstairs
n his pocket
listol ; he is
•h was in a
I "Watch,
t of the way
on one side
The ball
}n crouched
ng the muz-
econd shot ,
fled that no
stated, and
soner had a
hat do you
want to do anythini^ t'» me fur, I never di<l anything to ymi." Knieline
Smith, another witness on tlie i)arl of tiie prosftMition le.ililied tluitshe
was upstairs and lieard the conversation in the hall, betwei-n lleiu'ietta
Crave arid tlie prisoner, on the morning of the killin^f. All this witness
heard deceased say, was, " AVIiat do you want with me." She did not
iiearthc prisoner say anytliini^ in reply. Slu> 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<!r must be found by the jury, fnmi the evidence
of the acts and deliberations of the criminal, or the circumstances of
the case, and the theory that eccentricities of rh iracter and inordinate
passion can render a sane man incapal)le of committing an offence which
involves deliberation is wholly inadmissible.
Some exceptions were taken t'> 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 <lisclose or
disprove the fact of its having existed at any time after the disease
Itself had passed away. We venture to say tiiat no precedent can be
found for such a charge, and none ouglit to be established.
It is quite impossible for us to say that no harm was done to the
prisoner by this charge. It may have controlled the jury (as it seems
to have impressed the court), in disposing of the prisoner's only possi-
ble defence against an otherwise clearly establislied offence. We are
compelled, therefore, to reverse the judgment and order a new trial,
under the well established rules governing the review of .criminal trials.
Daniels, J., concurred
Conviction reversed and 7iew trial ordered.
EVIDENCE -IRRELEVANT ON QUESTION OF RESPONSIBILITY-DEC-
LARATIONS OF DECEASED- DRUNKENNESS -DELIBEPATION.
Warren v. Commonwealth.
[37 Pa. St. 45.]
In the Sicpreme Court of Pennsylvania, 1860.
Hon. Walter II. Lowrie, Chief Justice.
" George W. Woodward, ')
" James Thompson,
" William Strong,
" John M. Read,
whether he did not move Ire cr«cury\v .rd^Sr ' '*'•""'' ^^;hcn out of work.
therois„oprooforact«an„toxLcio„^.:;r;rr:;t:;r^r^^^^^
~i?c^evT,wr f .°' ^r^^,^^ - '""' f'"^""'^'- '"'•"'^ ""li<='<^d f-^r the murder of hit
^^.fc. ev.dcn.-c ,.f her ac'. and declarations on the .san.e day are irrelevant.
3. Deliberation as affected by drunkenness.
> 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 an<l unmanageable, unless it had been
shown that he had partaken of it in sufficient quantities to produce the
effect? The consequences fiowing from tlie ordinary uso of intoxicat-
ing liquors amounted to nothing utiless it was snown that they were the
cause that produced the effect. The proof offered was intended to es-
tablish a certain relation between cause and effect. The effect of in-
toxication might have been established by well known theory, but it was
put upon experience in regard to the prisoner — that it usually produ( ed
certain results upon him. It was not shown to have produced that
effect in the case in hand. The effect was offered as a substitute for
both cause and effect. There was no proof of intoxication, excepting
as inferential from his acts proved. But if allowed to be proved in
this way, it could always be, by violent acts, in any one. This is not
812
FA'IDENCK AXl) I'UACTICE.
Warren v. ('oininoiiwealth.
to be thought of. When the prisoner was arrested, a few hours after
the commission of the crime, not a single witness spoke of him as in-
toxicated. In the absence of i)roof of tiiis kind, the testimony, the
substance of this bill of exception, was irrelevant, and properly over-
ruled by the court.
We have carefully scrutinized the answer of the learned judge to the
points put on the trial by the prisoner's counsel, and we discover no error
whatever in them. They were clear, and presented the law of the case
broadly and fairly. To the argument that the manner of killing was
evidence of intoxication or insanity from " some otiier cause," while
the court very properly told the jury that " l)arbarity, indifference to
consequences, and a life of drunkenness, it seems to us, are not ele-
ments from which a jury could safely draw so grave a conclusion as
that the prisoner, from ' some other cause,' was unable to form a wilful,
deliberate and premeditated design to take tlie life of the deceased,"
yet he added: " It is for the jury to draw conclusions for .heraselves.
J'he facts are for the jury, absolutely and conclusively." This gave
the prisoner a full and fair chance under the arguments of counsel,
which would, no doubt, have been effectual to have saved him if there
had been ground from which to infer insanity from any cause.
We need not notice at length the answers to any of the other points,
further than to say we have carefully examined them, and find nothing
wrong in them. We will briefly notice the answer to the eighth point.
It would have been error to have answered that point in the affirma-
tive, for the reason given by the court. It assumed that there was proof
of provocation, and that " acting on a mind shattered by dissipation,"
says the point, and " long-continued indulgence in strong drink, to such
an extent as to render the prisoner unable to master himself, and form
a cool and deliberate purpose to kill ; " then it concluded with a prayer
to charge that " the prisoner cannot be convicted of murder in the first
degree." " If any doubts," it further adds, " are in the minds of the
jury as to the fact, then theii- verdict must be for the lighter grade."
This was an assumption of a state of the case that did not exist under
tho proof, and it would have been wrong to have affirmed the point.
For this reason we need not discuss the merits of the proposition, but
we must say that the doctrine that if " any doubts " are in the mind of
the jury on the point of deliberation, their verdict should be for murder
in the second degree, is going a step beyond the rule. If reasonable
doubts exist, this should be so. It is not every doubt, however slight,
that is to have this effect. Nor was there any proof of provocation, to
EVIDENCE OF ACTS SHOWING SANITY.
813
United States v. Shult^
Jurs after
im as in-
nony, the
erly over-
ge to the
V no error
the case
lliiig was
I," while
e 10 nee to
not ele-
usion as
a wilful,
ceased,"
mselves.
his gave
counsel,
if there
1' points,
nothing
point,
affirm a-
18 proof
>ation,"
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 ^\ e<lnesday mornin-.- before the act, which was done on the follow-
ing Frnhiy ni-j.t. He can.e on the morning previous, and stoi.ped a
the hotel where witness lived ; he seemed very tremulous, could not use
one hand, anu had to be helped at the supi)er table. The next morn-
ing, just before the prisoner left, while the witness was at breakfast he
came up behind him stealthily, seized his cup of coffee, and drank it
Witness did not think the prisoner was in his right mind. He had no
other reason for coming to that conclusion, except his takin<T the coffee
m the manner he described, his tremuh.usness, and the wil.hiess of his
eyes ; but from these things, he did think so. Several witnesses testi-
hed that on the way to the jail, he begged the persons about him not to
hurt him, or that he should not be hurt. At other times he asked them
to hang him. Dr. Parker testifx'd that he resided at the South IMills in
Camden County ; that he was called to attend the prisoner about two
weeks before the homicide; that the prisoner had been drinkincr verv
hard, and had delirium tremens and inllammation of the stomach"; that
he talked incoherently, gave inconsistent answers to his questions', and
made foolish remarks. The witness gave it as his opinion that the pris-
oner was then insane. The i>risoner 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<l. C. H. Brothers
staled that he was the jailor to whose custody tln' prisoner was coinniit-
ted on tin; niixht of the homicide ; that ho was perfectly rational that
nlujlit ; Imt that next day. and for si'veial days, he was out of his inind ;
that he talked straiifTely and incoherently. After a few days he became
better and continueil (ptite rational.
'I'he State in reply introduced the opinions of .several witnesses, that at
the time he was taken, the prisoner was (piitc .ane ; and many conver-
sations were proved io show the fact. On the Sunday before, it was
proved that he was rational.
Jt was insisted by the prisoner's counsel, that the presumption of
sanity did not arise in this state of the facts ; ))ut that the prisoner was
entitled to the contrary i)resumption of insanity; and that it devolved
on the State to show that the prisoner was sane when the act was done.
Ui)on this i)oint his iionor charged the jury " that to hold the prisoner
responsible for his act, it should apju-ar that at the time of its jjcrpetra-
tion, he was sulliciently rational to distinguish right from wrong, and
to know that what he was doing was in violation of the laws of God and
man, " That the general presumption is that all |)ersons are sane, until
something is shown to the contrary. When derangement or partial in-
sanity is shown, and there arc lucid intervals, it is still necessary for
one relying on insanity to show th:it the act charged was done during
this paroxysm of insanity." To this instruction the prisoner's counsel
excepted.
There was a verdict finding the prisoner guilty of murder. Judg-
ment of the court was pronounced, and an appeal to this court taken by
the defendant.
The Attorne>/-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-
ron<f, and
r God and
iaiie, until
partial in-
!ssary for
ne d urine:
's counsel
r. Judg-
^ taken bv
ling from
'e of sueli
?s of this
our hands
a punish-
idood the
;ase, and
in whatever form, if at the time the prisoner romn)its the act his mind
is then capable of distiii-iuishinir between moral riuht and wront:, ho is
an m-countable beinj;, and comes within die operation of the law. The
prisoner, a fortnight before the perpetration of the offence, hud hvou in a
state of delirium tremens, from which he was relieved by his i)hyHci:ui.
who cautioned him against in;liil<>ing 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 <iuestion, as to the policy or e.\|)ediency of admitting such evi-
dence in legal investigations presents many and very great difficulties;
it is wrong to exclude what may lead to truth, and yet such evidence
would in numberless cases lead to falsehood, and scieen tlie guilty, in
defiance of truth. On this account, we find it in some degree, an open
question in the legal authorities. Thus far the wa}' seems to be clear;
in order to render it admissible, the species^of insanity alleged, and that
which is offered to be proved in respect to the members of the family,
must be of the same character ; and the instances to be proven, must
have been notorious, so as to be capable of being established by general
rei)utation, and not left to depend upon particular facts and proof, about
which witnesses may differ, and the consequences of which would be to
run off into numberless and endless collateral issues ; so that in trying
the question of the insanity of one, the supposed insanity of a half
dozen would be drawn in. In this case, the testimony of the prisoner's
mother, in regard to his alleged insanity, is very vague and unsatisfac-
tory, so far as it tenus to show the character and kind of insanity with
which she supposed her son to be atflicted. Was it temporary in its na-
ture, like mania a potu? or fixed derangement? So is the evidence
which was offered as to the uncle and brother. Was that notorious, or
only supposed to exist by a few? W^as it vi<nu'a a 2^otu, or of a perma-
nent type ; and of the like character, so as to tend to show an heredi-
tary taint? On account of this vagueness we forbear to express an
opinion.
Fer Curiam. Jndgmetit ri'rcr.wL
;isfactory
ibility of
le, which
824
e>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<l according to the meaning of the court, the latter
branch of the sentence which contains the nllejied error is not justly
chargealtle with error. The court had said, the only remaining C|Ucstion
is ujioii the insanity of the prisoner, that he is presumed to be sane, and
the burden is on him to prove to your satisfaction that he is insane.
Then the objected sentence follows: ''You cannot, however, infer in-
sanity from the heinous and atrocious character of the crime, or to con-
stitute it as an element in the proof of actual insanity." The court did
not mean to say that when proof of insanity is given, the horrid and un-
natural character of the crime will lend no weight to the proof ; but
meant only that the tcrrilile nature of the crime will not stand as the
proof itself, or an element in the proof of the fact of insanity. There
is a manifest difference between tiirJ, which is actual evidence of a fact,
and tha'^ whicr niercly lends weiLiht to the evidence which constitutes
the proof. Thit: is all the court meant That part of the charge con-
tained in the thirtieth assignment i: not objectional when read with its
context, and properly understood. The court did not say that the jury
must find insanity on the da}' of the purchase of the poison in order to
acquit. On the coiitrr.ry, th: jury were instructed in several parts of
the charge that the insr.nit;)- must have existed at the time of the com-
mission of the offence, The paragraph containing the sentence objected
to was employed in presenting the matters of fact relied upon bj' both
sides as evidence upon the question of epileptic insanity previous to the
time of the poisoning. The fact of sanity or insanity on the day of the
purchase of the poison had a very direct bearing on the fact of insanity
when the poison was administered. Hence the court properly submitted
the fact of sanity or insanity on both days as bearing directly upon the
issue, but not as both necessary to an acquittal.
MENTAL CONDITION OF RELATIVES.
83;{
llagttii V. Slutc.
I lio cir-
tlie ixiisou.
ets sutend-
th liiplnsivc
'vidciice of
isfiiiity. !ui<l
1)0 said of
iind unsub-
y. Stand-
takoii ill its
;, the hitter
> 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 <liargo as to rradonuble
tloubt specially with regard to the issue of liis sanity.
V!. Quantumof Proof. — The evidence of insanity to warrant an aciiuittul Rhoulrt be huJII
ciently clear to convince the niinUn and coiibcieiiccb of the jury.
3. Medical Experts who have heanl the whole of tlie cviilcncc, or to whom the whole of
the eviden(M! has been hypothelically staled, may give an opinion as to ilio ^anilvof the
prisoner at the time in (|ue>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 <ts to the conchisiunsto be clraicn from the testimony of a
particular witness, and it is settled, that exports of all classes may be
asked as to a hypothot' al case. But if the facts on which the bj'poth-
esis is based fall, the . nswer falls also. Nor can an expert be asked as
to an hypothesis liaving no foundation in the evidence in the case, or
resting in statements made to him In' persons out of court." ^
In People v. Jnurston, we find a miunber of authorities collated
and cited upon this subject, which as there given we reproduce. It is
there said : " The general rule laid down by Phillips - is, ' The opinion of
medical men is evidence as to the state of a patient whom they have seen.
Even in cases where they have not seen the patient, but have heard the
symptoms and particulars of his case described by other witnesses at
the trial, thoir opinion on the nature of such symptoms has been prop-
erly admitted. Thus on a question of insanity medical men have been
permitted to form their judgment upon the representations which wit-
nesses upon the trial have given of the conduct manner, and general
appearance exhibited by the patient.' Upon the discussion which took
place in the English House of J^ords in 18 1.'^, in consequence of the ac-
quittal of McXaghtcn for the nuirder of Mr. Drummond, the following
question amongst others, was propounded to the judges in relation to
the defence of insanity, viz. : Can a- medical man, conversant with the
disease of insanity, who never saw the prisoner previous to the trial, but
who ivas present (hirn)ij (ho irhole trial and the examination of all the
1 Wliar. ( r. Kv., ^t■(•t. 41S.
^ 1 Ph. oil Ev. 290.
EVIDKXCE OF EXPERTS.
837
link's on tlio Siil)jcct.
guish right
jndant, " I
withdrawn
, tlie court
jased upon
rule thus :
roseeution,
the case as
' the jury,
at because
erts being
nd jury of
rely be es-
ndisputcd,
be drawn
imony of a
es may be
le bypoth-
j asked as
ic case, or
8 collated
ice. It is
opinion of
have seen,
leard the
tnesses at
icen prop-
lave been
vhich wit-
d general
hich took
)f the ac-
followiufj
ilation to
; with the
trial, hut
of all tho
mtnesses, be asked his oi.inion as to the state of the prisoner's mind at
the conunissiou of the allego<l offence, etc. ? To this question an ulllrm-
ative answer was given. ' Tlie form of the question above given cle;nly
mdifates that the medical witness must licar llie whole evidence in order
to qiudify him to give an opinion. So, in Jiex v. Searle,'' it was hehl tliat
a medical man tcho had heard the trial may be asked whether the facts
proved show symptoms of insanity. Here again tlie medical witness
must have heard the whole of the evidence."
So in ^fcXu(J!Uen\s Caser^ it was held that a medical m:ui Hn, had
been present in court and heard tlie eviilence m:,y be asked whether the
farts stated huthe witnesses, supposing them to he true, show a state of
miiid incapable of distinguishing between right and wrong. Here
again, it is quite apparent tliut the wilness heard the whole ol'' the evi-
dence tending to prove insanity. So. in Chitty's Medical Juiispru-
dence,-' the rule is laid down thus: '• The opinion of medical witnesses
who have seen the alleged lunatic, is unquestionably admissible, and
though they have not seen the lunatic, yet their opinion, after hearing all
the evidence, whether or not a person having so acted, and evinced such
delusions, ought to be deemed a lunatic, it seems, is .admissible." The
conclusion is thus summed up: " It would seem to be a just inference
from the reason of the rule that the medical witness should be in pos-
session of all those facts tending to prove insanity before he should
give an opinion negativing insanity. His opinion on half the facts of
the case on which the jury are to decide the cause must be utterly
worthless, for it may well be that the same witness, with all the facts
before him, would pronounce a very different opinion."'^
In Lake v. People,^ it is said : "Although the opinions of experts are
admissible evidence, yet it must be on a given statement of facts ; and
the facts on which the opinion must be admitted must be all the facts
relied upon to establish the theory which it is supposed these facts sus-
tain. Every witness would otherwise come to a different conclusion,
and the same witness, testifying on one-half the facts, might give as his
opinion that they indicated sanity, while the other half would satisfy
him of the prisoner's madness."
We thj k the true rule is as summed up in Sharswood's note 1 to p.
27,7 of Russell on Crimes : "As to medical experts, they may state their
opinion upon the whole evidence, if they have heard it all, or upon a
I i^ Enp. Com. Law, 29.
s 1 M. & n. 75.
» 10 CI. & Fin. 200.
1 II. .350.
135.
•' People V. Thuriton, 2 Park. Cr. 134,
1 Park. Cr. 657.
• 9th ed.
838
EVIDENCE AM) rKACTICE.
Wel)l) V. State
hypollietit'al statement wliicli is in conformity with the wliole evidence."
All authorities ngree tiiat it is IniKlniissiMe to permit an expert to give
his opinion u\)()n aiiytiiing short of the whole evidence in the case,
v.hether lie has personally heard it or it is stated to him hypothctically.'
'• The pro|)er mode of eliciting this opinion is, in sul)stanco, this: Pre-
mising that the expert shall have attended the whole trial, and shall have
heard all the testimony as to the facts and circumstances of the case,
and that he is not to judge of the credit of the witnesses or of the truth
of the facts testifli'd by others (which are questions for the jury), the
proper question is this : ' If the symi)toms and indications testilied to hy
the other witnesses are proved, and if the jury are satisfied of the truth
of them, whether in his opinion the party was insane? ' " -
We find Dr. Stone's evidence set out in the statement of facts as fol-
lows: '' Dr. Stone, for defence (expert), t(?stilied that he had heard all
the testimony in the case, and said that, not i)eing a juror, he asked the
court to excuse him from rejilyiiig to the question whether the testi-
mony estahlislied in his mind the sanity or insanity of the accused at the
time he killed Foster; and the court excused him from answering.
That he had heart! no evidence of the insanity of the accused that could
not be explained l)y other causes, such as indulgence in drink or de-
bauchery. Fiom the evidence of Pool alone, he would not have con-
sidered Webl) insane. lie lielieved the mind of Webb, at the time the
l^articular offence charged was connnitted. to have been more or less
distracted from some cause, but not to that extent as to relieve him en-
tirely from responsil)ility."
The witness hud heard all the testimont/ in the case, and did not be-
lieve defendant insane. Tiiis opinion, founded upon the whole testi-
mony, must have included, and did include, the evidence of the witness
Pool. If it did, then how could any injury result to defendant by ask-
ing — and that, too, upon cross-examination — the opinion of the wit-
ness upon the testimony of Pool alone ? We confess we cainiot conceive.
It would have been otherwise if the ex|)erthad not heard and formed his
opinion upon the whole case, fen' in that case the question and answer
would have been not only improper, but illegal and inadmissible.
One of the ffi'ounds of the motion for new trial was that defendant
was misled and taken by suri)rise at the testimony of Dr. Stone ; be-
cause after all the testimony of the witnesses who were examined was
heard, defendant's counsel withdrew with the experts, Dr. Stone
I See also lU'ilflold'rf addition to sect 5, 3
Grucnl. on Ev.
- So(> 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: " Y<iu have seen from
the dcllnlticin of murder, in a former part of
this charge, that one of the ingredients of
this crime is that the person guilty of the
homicide must ho of ' sound mind and dis-
cretion.' Tlio law is that no act done in a
state of insanity can he imnished as an of-
fence. On tlio trial of every eriminal action,
when the facts have been jiroved which eon-
stituto the olfence, it devolves upon the
defendant to establish the facts or circum-
stances on which he relies to excuse or
justify the act charged against him. Kvery
lierson charged with crime is presumed to
be sane — that is, of sound memory and dis-
cretion. If, under the law of this charge and
the testimony of the witnesses, the guilt of
the defendant has been established beyond
;i reasonable doubt, it devolves on the de-
fendant to establish Iiis sanity at the time of
committing the act, in order to excuse him-
self from legal responsibility.
" That is to say, the burden of proof to es-
tablish his plea of insanity devolves upon
the defendant, us every iiersoii is presumed
to be of sound mind untd the contrary is
shown by proof. If the State has, as before
explained, proved the facts which constitute
the olfence charged in the bill of indict-
ment, your next inquiry will be, has the
defendant established by proof his plea of
insanity, or has it been established by proof
from any source? If he has, the law excuses
him from criminal liability, and you should
acquit him. The question of insanity of the
defendant has exclusive reference to the act
with whicli he is charged, and the time of
the commission of the same. If he was sane
at the time of the commission of the crime,
he is amenable to the law. As to liis mental
condition, with reference at the time to the
crime charged, it is peculiarly a (juestion of
fact, to be decided by you, from all the evi-
dence in the case, before the act, at the
time, and after. A learned judge has laid
ilown a rule which I give you in charge;
that is, he says: ' A safe and reasonable test
ill all cases would he, tliat whenever il
should appear, from all the evidence, that at
the time of doing the act the prisoner was
not (if sound mind, but allVcted with insan
ity, and such allection was the elUcicnl
cause (if the act, and that he would not have
done the act but for that allection, he ought
to be ac(|uitte(l.' For, in such a case, reason
Wduld be at the time dethroned, and the
power to exercise judjrmcnt would be want-
ing'. I'.ut this unsoundness of mind or af-
fection of insanity must be of such a degree
as to create an uncoutroUabb^ impulse to do
the act charged, by overriding the reason
and judgmeiit and obliterating the sense of
right and wrong, and depriving the accused
of the power of chuosing between right and
wrong as to the particular act done.
Whether tlie insanity be general or partial,
whether continuous or periodical, the de-
gree of it must have been sufHciently great
as lo have controlled the will of the accused
and to have taken from him the frecdoni of
moral action. When reason ceases to have
dominion over a mind proven to be diseased,
it then reaches the degree of insanity where
criminal responsibility ceases, and account-
ability to the law, for the purpose of punish-
ment, no longer exi.sts. Whether that degree
of insanity existed at the time of the alleged
homicide, with the defendant, is the impor-
tant (question on this issue for your consider-
ation and decision ; it being purely a question
of fact, to be determined by you from the
testimonf. If it was true that the defend-
ant took the life of the deceased, and at the
time the mental and physical machine had
slipped the control of the defendant, or if
some controlling mental or physical disease
was in truth the acting power within him,
which he could not resist, and he was im-
pelled without intent, reason or purpose, he
would not be accountable to the law. If, on
the other hand, he was of sound mind, capa-
ble of reasoning and knowing the act he was
committing to be unlawful and wrong, and
knowing the consequences of the act, and
had the mental power to resist and refrain
from evil, his pleas of insanity would not
avail him as a defence. You will remember,
in the definition of murder in the first part
:
SPECIAL CHAHCJK MIST BE GIVEN.
845
Krwiii V. KtatP,
K)mmittc(l
be case of
» in charge;
isdiiablc test
vvhciiuvcr it
I'lx'f, Hiatal
• lisiinur was
with iiisiin
Iio ollicicnt
I'll not liave
n. lie ought
"a.sL', reason
eil, and the
1(1 Ijo want-
iiiiiil (If af-
<;li a degree
i|iiilse to do
tlie leasoii
10 sense of
lie accused
n right and
itet done.
I or partial,
;il, the de-
eiilly great
lie accused
'recdoni of
>e8 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 <prMc)l."
'I'lic iirisdiicrapiit'iiN'il. IIri;r, .l.,il('livero(l
ii li'iij?lliy uiiiiiion.whicli iiK'ludcs llio vi'asDiis
for lii.s (lisseni in Ifcib v. Stute. 'J'hi- dllicr
juiljfi'x coiicurrcil in iim i-r^iiij; IIil- (•u>'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.<i(init!/. Insanity cannot civ ««■ crime,
from the f;i<'l that, if in.iaue, there i.i no irinn-
to be e.C(ii.-!e<l. These observations apply to
the second. Now to the third ; " I'lea in the
nature of ii plea to the jurisdiction." This
plea never draws In issue the (/uilt of the
prisoner. I'lider this plea, sanity or insan-
ity irmdil be tlu; issue, separate and inde-
pendent from IIh! (|uestlon of guill, lo be
deteriuineil. IJiit the court has juri.-idirtidii
of the crime, if any has beitii committed ; and
how iire we lo sever the one from the other?
Shall we tirst try the question of sanity and
then that of guilt? Not so, for on the thresh-
old we are met with the fact that under llie
plea of not guilty, evidence on the iiuestiou
of sanity can be introduced. lieliold what
darkness and confusion surround the (jues-
lion of sanity — a subject arinuid which
gather more vagaries and inconsistencies
than infest any other question in the whole
range of criminal juriiiirudence.
Jiut what sliall bu said upon the proposi-
tion tliat the plea is " in the nature of a mo-
tion to change the venue?" if there is the
faintest, the most remote, analogy existing
between the i)lea and a motion to change
the venue of a case, we frankly confess our
Inability to trace it. We had thought the
object of a motion lo chiinge the venue was
to remove a cause from the (bounty in which
the indictment was found to some other one
for trial, and that the ground for removal
was based upon the fact that an impartial
trial could not be had in the prober
(;ounty — lh:it in which the indictment vviis
found. To what court or county shall it be
taken? Will not the same reasons for the
change be found in the court or county to
which it is transferred? Most inuiuestion-
ably they will. These conclusions being
true, the case could only find a court of last
resort in the tribunal of heaven. This would
defeat the ends of human justice, since the
5
i
I'.i i;i)i:.\ (»r ritooi'.
S17
Dlssi'iitiii^j; ()|iliil()ii t)t Hurt,, I.
I intPiit l(^
II the liisi
an of till'
>, 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<iii.-
Ic ami indi'
Kuill, to III'
;juiis()ictiiin
luiltuil ; iiinl
I the other?
' sanity ami
the tlii-eisli-
it umler tlie
lie (iiiestiou
I'liolil wlial
il the (lues-
und which
nsi.-itencie>
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 c<incentrate attention up<iii this
parent error, from whose fruitful loins have
spriiiii; all of these ill-considered stuleiiu^nta
upon this i|uesiiou of sanity. In jurispru-
dence nothing can be more valuable than
these statements of principle. On the olher
liand, liastily conceived and unhappily
w<irdcd enunciations not infrecjucntly o|)eii
the Hood gales of liligalion, with its vast at-
tendant expeiiso, and lead to judicial mur-
der under all the forms and solemuitiea of
the law.
Tliefallacy of this fundamental error can
b«! inadu more fully to appear by comparing
two iiropositions: —
1. SanUy is an inherent , intrinsic element oj
crime.
'1. Sanity is not an inherent and intrinsic
clement, but is extrinsic and independent of
tho crime.
The last proposition contains a monstrous
fallacy, the fruits of which are visible in so
many of tlie text -books, and which are fol-
lowed out ill many of the enunciatioiis in
the adjiiilicatcd cases. 11 sanity is an inhvr-
e«< clement of crime, no well-ordered mind
can stop short of the conclusion that the
State must carry its burden and prove il.
Keeling the force of this, writers have treated
it as au extrinsic matter, separate and dis-
tinct from the question i)f guilt, and hence
those strange and incomprehensible ex-
pressions above referred to.
Let us pay our respects to thia last propo-
sition, and see if from a bare touch it will
not cnjmble to dust. " Sanity is extrinsic."
Therefore the prisoner is to be tried for the
act, and the question of intent or malice is
not drawn in issue. This for the Bini|ile
reason that an issue formed upon the (jiies-
tion of intent or malice irresistibly includes
that of sanity: fuviliere can be no intent or
malice without sanity. Therefore it follows,
from this erroneous position, that the jury,
in viewing the act soiiglil to he punished,
must strip it iif the intent which promptcil
it, and look alone to the act. To this we
enter our solemn |irolcst.
We now invite attenti<iii to what wo believe
to be the true position, which is that sanity
is an in'icrent, inlriimic and necesfary clement
of crime. Is this a correct propohilion'f' Is
it not a self-evident iiroposition? If murder
can be committed wilhout intent or malice,
then tho jiroposition is false; if not, it is
true. I!ut wo do know, if it be iiossililo to
know anything, that, to (sonstitule murder,
the act tif killing must be attended, not only
with the tH/p«^ to kill, but with w«/((r/ and
we also know, with the same degree of cer-
tainly, that there can be no intent or inali<'e
without s«hj7//. It therefore follows, bi'yoiid
any shadow of doubt, that sanity is an iri-
lierenl, intrinsic and necessary ingredient
of crime.
We now return to the first proposition
stated at the beginning of this opinion,
which is as follows: " When the plea of in-
sanity is interposed, is tlie burden of proof
on the State to show sanity, or is it on the
defendant to prove insanity ':•" We have
thus stated the proposition because we lind
it so slated in the books, but it is not a prac-
tical one. There is no such plea known to
our Code as applicable toatri:ilof a crimi-
nal cause. We have four jileas — two special,
and the pleas of "guilty" ai.d "not
guilty" — and this pic i of "not guilty" is
a denial of every mat-: ;.l allegation in tho
indiclmont. L'nder r ii.ueiice to establish
llie insanity of the defendant, and every fad
whati.'ver tending to aci|uit him, may be in-
troduced. It follows that under this plea
tlio defendant denies every constituent
element of the oflence charged, and this
plea of " not guilty " is the same as if the
defendant had denied siieciUcally each ele-
ment of the crime, charged.
Tills leads us to the consideration of the
charge in this case, which is niurder, and is
dcliiied thus: " Kvery iierson with a sound
memory and discretion who shall unlaw
fully kill any rcasonalile creature in being,
within this state, with malice aforethought,
eillier express or implied, shall be deemed
848
EVIDENCE AND I'UAt'TlCE
Krwln r. State,
Wliitlow, the injuivd inaii, \v;is standing in the <loor of a saloon, in
which he was employed, in Fort Wortii, when ho was approached by the
appellant, wiio asked him for a drink of whisjvey. Whithjw refnsed
him tlie whiskt-y, telling him that he had drunk enougii. Continuing
guilty of murder." From this Uellnlliou it
follows that, to coliKtiluto the oll'oiic.e, thu
shiyur muHt bo "of houihI iniml and discru-
tion;" a " ruu^onublo creature" must he
chiiii, and the slayer must ho uctuiitfd by
"malice." Wo liavo then, llrst, "sound
memory" in tlie slayer; second, a " reason-
able creature" nlain; and the slayer
lirompled by " malice." These constitute
murder, nnd nothing less than all of these
can constitute niurdor. Uy what principle
of logic, reason or justice can either of
these elements be eliminated from the of-
fence? from this it follows that an indict-
ment cliar)?intf this olfenco onibraces all the
above elements, whether speciUcally named
or not; an<l though the indictment omits to
charge lliat the defendant was of " snunil
memory," yet charging "malice," samtii l.s
necessarily in'sludeil. The problem which
equals murder is composed of three mem-
bers: rir.st, "sound memory" of slayer;
second, " rea.sonablo (ireature " slain; and,
third," malice " in the slayer.
Let us see if we can eliminate from this
problem one of these members, and leave
every element of I he offence in the i)roblem.
There can be no malice without sanUj/;
hence, " malice " includes saniti/. Wo
therefore have first, a " rcnsonable crea-
ture" slain; second, a malicious slayer —
murder. Hence, the charge in the indict-
ment, that the killing was with "mali<!c
aforethought," charges the slayer to be of
"sound memory and discretion." If this
conclusion is not correct, we most unhesi-
tatingly assert that the indictment is woi'th-
Icss ; for wo have found, under our (;ode,
■saniti/ to be an element of murtler, nnd, by
well settled rules of criminal pleading, an
indictment which fails to cmbraco in its al-
legations all of the constituent elements of
the olFcncc is fatally defective. The author-
ities api)roach nearer to unanimity upon
this question than any other known to us.
If the above analysis bo correct — and we
think it is — it devolves upon the .State to
Iirovo every »«/terent element of the ofFence;
and as we have found saniti/ to bo such an
element, it rests upon the State to prove
saniti/. Still holding with a firm grasp the
proposition that sanity is an in/teren^ element
of the otfoncc, and as there Is m thing
in law as scpai'ating I he elements of an of-
fence so as toca>t 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)<ire, evidence. Sanity being the nor-
mal condition of m.'in, he j)rc.iHniea that to be
the condition of the \irisoiier. With the
parents or relatives of tlie prisoner be is not
aciiuainted. He is not aware of the fad
that perhaps some of tlie iirisoner's blood-
relatives are now inmates of an asylum for
the insane. Though his locks are bleacliot
by the winters of ages ; though lie has never
l)cen charged with prejudice, and though
Ills evidence is supported by the laws of
nature and corroborated by the experience
of man, yet he is soinewiiat «)'6j7;v(r(/. He
places the prisoner in the normal condition
of man, wliicli is sanitij, and demands of him
the same conduct whether sane or insane.
He never heard of inmnit y , because he speaks
alone from the laws of nature, and insanity
being an exception to the natural rule, tliey
are unacriuainted. With the prisoner's Ian.
guage, conduct or misfortunes he has noth-
ing to do, and of them he is entirely ignorant.
Yet he liolds himself with an iron gras)) to
the laws of nature and the experience ot
man. Is he omnipotent? How many wit-
nesses are necessary to measure arms with
this Titan? Does he jiartako of the kingly
character, and can "ho do no wrong?"
Upon the testimony of one witness alone,
the piisoner may be legally convicted and
executed. Can ibis geiilleman's evidence
accomplish nion? In no case can he ac-
complisli more than can bo elfected by the
evidence of one witness. We do not mean
the evidence of any witness. Can the evi-
dence of one witness ever be an over- match
lor him? In some 'jases it legally and justly
can; In others the testimony of Rcorcs will
not siillb'e, this depending always upon the
<'liaracter of the witnesses, their means of
knowledgf, and tlie/(;(7» siri>ni to.
Having emlcavored to become soincwhat
iic<iuaiiiled Willi the witness presumption, we
now <lesire to call special attention to a \cry
reiiiarkiildn feature of bis character. It is
conceded by all that his evidence is relied
upon, anil is absolutely neces-^ary to con-
vict, in a great many cases in which the
t/uestion nt sanity \s not involved. It is al>o
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<in of
innocence is to stand until it is overcome by
proof, but also from the form of the issue in
all criminal cases tried on the merits,
whiili, being always a general denial of the
crime charged, necessarily iinpo-es on the
Government the burden of showing alllrm-
atively the existiMico of every inatenal in-
gredient which the lawre<iuircs in order to
constitute the offence. If the act cliarged
is justillable or excusable, no criminal act
has been committed, and tlio allegations in
the indictment are not iiroved. This makes
a broad distinction in the application of tlie
rule as to the burden of proof in (Mvil and
criminal cases. In the former, matters ol
justillcation or excuse must be specillcally
pleaded in order to be shown iu evideuce.
850
EVIDENCE AND PRACTICE.
Erwin v. State.
"While Whitlow and Paddock were talking, the appellant asked Whitlow :
"Are 30U going to give me tliat drink?" to which question Whitlow
answered, "No! " Appellant drew his pistol, and said: " G — d d — n
you, you have been back-capping me all the time, and I'll give it to you
and the defendant is therefore, by the form
of his |)lca, obiiged to aver an affirmative,
and iliereby to assume the burden of estab-
lisliuig it by proof; while in the latter all
such matters are open under the general
issue, and the affirmative — viz., proof of the
crime charged — remains, in all stages of the
case, upon the Government."
The quotation being ended, Judge White
proceeds; " As thus enunciated, we believe
the doctrine to be correctly asserted, and
we know of no decision of any of the courts
in this State which has ever contradicted or
contravened it."
We ask special attention to the doctrine
enunciated by Judge Bigelow, and which is
alErmed by our own judge in the opinion
above quoted from, which is as follows:
"The ]/urden of proving «'ery essential ele-
ment necessary to constitute the offence is
with the Government, and this remains, in
all stages ot the case, upon the Government."
This rule applies only to the burden of proof
of the necessary ingredients of the offence,
and, as Judge White further and properly
states, "when distinct substantive matter
is relied upon by the defendant to exempt
him from punishment and absolve him from
liability, then that is matter foreign to the
issue as made by the State in her charge
against him, and the burden of proving it,
in reason, common sense, and law, should be
upon the defendant." The italics are ours.
From the above we deduce these rules: —
1. The State must prove every necessary in-
gredient ot the offence, and, so far as they
(the ingredients) are concerned, the burden
of proof never shifts.
2. When distinct, extrinsic matter is re-
lied on by the defendant, tlie burden 1p on
him to prove it to the satisfaction of the
jury.
To these rules we give our hearty assent.
But the grand, fundamental question here
again presents itpclf: "Is sanity a neressarj/
element of crime? " We have said all we de-
sire to say (in this question.
We now propose to return to that plausi-
bli' iMtsition of the other side: " The evi-
dence .'showing the act to have been done by
the defendant, and sanity being iiresumcu
by the law, the burden shifts to the defend-
ant." Those who occupy the other side
plant themselves upon this proposition, and
ask with plausibility and a preat show of
victory : " Will not the prisoner be convicted
if he fail to introduce evidence of his insan
ity?" We admit that he will, and justly.
But suppose the evidence shows that the de-
fendant killed the deceased intentionally,
with a deadly weapon, and here closes.
Will not the prisoner be convicted if he fail
to introduce evidence in excuse or justifica-
tion f Let us take another ca.«e : The State
proves by a number of unimpeachable wit-
nesses that the deceased was brutally mur-
dered by some one in the perpetration of
rape, and witness after witness has sworn to
the identity of the prisoi er as being the per-
petrator of the foul dee !, and, in addition to
all this, the State proves, by a number of
witnesses, facts strongly tending to prove
the presence and guilt of the prisoner. If
the case closed here, would not the prisoner
be in very great danger of losing his life f
Can presumption make a stronger case than
this ? Bear in mind that the above facts
constitute the case before the court, and the
judge should charge the law applicable to
the case as made by the facts. Kow suppose,
in this case, the State having clobed, the
prisoner proves, by a number of his neigh-
bors, that he was at another place at the
time the offence was committed, and auds
fact upon fact in support of their evidence in
favor of an alibi. This would be quite a dif-
ferent case from *he f!r«t, but tlie case. Now,
suppose the judge should split the last case
just where the State closed (notwithstand-
ing t/ie rose as made by all the evidence), and
charge that the burden of proof shifted to
the prisoner to prove his alibi. Would that
be held sound law in this State? By no
means, and for the simple reason that if the
prisoner vas not there he is not guilty. An
alibi strikes at the very heart of the propo-
sition of guilt, and every particle of evidence
in its supi)ort, though negative in its charac-
ter, is a direct attack upon the theory of his
presence at the i)lace of the crime; and, if
not there, lie is ni)t guilty. And here we
would call attentiiin to another source of
confusion (in our jurlgment), which is that
many judges fall into the error of viewing
BURDEX OF PROOF.
851
Dissenting Opinion of Hurt, J.
Whitlow:
n "Whitlow
^—d d— n
e it to you
now," and immediately fired tlie ball, striking Whitlow in the arm, from
which wound he was confined to his bed for two weeks. Paddock
started to appellant, but the latter presented his pistol and held him at
bay. The city marshal approaching about this time, the appellant left,
s other side
liosition, and
reat show of
be convicted
of his insan
I, and justly.
8 that the de-
intentionally,
here closes.
Bted if he fail
! or justifica-
y. The State
tachable wit-
brutally niur-
irpetration of
has sworn to
icing the per-
in addition to
a number of
ing to prove
prisoner. If
t the prisoner
ling his life t
ger case than
above facts
nurt, and the
!)plicable to
ow suppose,
closed, the
)f his neigh -
ilacc at the
d, and aaUs
evidence in
quite a dif-
case. Now,
the last case
ut withstand-
idence), and
of shifted to
Would thiit
ate? By no
n that if the
guilty. An
f the propo-
> 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«<tre in its very
nature; and, as to any of these, the burden
.^erer shifts.
">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?j<e,p.
835, recently decided by this court.
The law presumes every man to be sane,
and that presumption alone will of itself
sustain the burden of proof which is de-
volved upon the State in every criminal
case, 80 far as sanity is involved, until it is
rebutted and overcome by satisfactory evi-
dence to the contrary. Naturally, and in
fact, the burden to rebut this presumption
rests with and is upon the defendant; and
he should bo able to show his insanity
clearly, and to that extent that the minds
and consciences of the jury can say that on
account of his insanity ho was guiltless of
entertaining the criminal intent essential to
responsibility for the crime charged. This
is not only required by the general rule of
854
EVIDENCE AXD PRACTICE.
Erwiu V. State.
Ball & McCart, for the appellant.
JI. Chilton, Assistant Attorney-General, for the State.
Hurt, J. — Erwin, the appellant, was convicted of the offence of
assault with intent to murder. His defence was that he was insane at
the time of the assault ; that he was suffering under a species of insan-
ity known as delirium tremens. The evidence raises the issue as to
whether the defendant was, at the time of the assault, in a drunken
frenzy, or laboring under the disease known as delirium tremens. If,
therefore, delirium tremens is such imbecility of mind as will excuse the
defendant, or, to speak more in accord with legal principles, defeat
guilt, then it was the duty of the court below to charge the jury thereon
in a clear and pointed manner.
That it is a species of insanity rendering the party incapable of the
commission of crime, there is no longer any doubt. Messrs. Wharton
& Stille, in their admirable work on Medical Jurisprudence, are very
clear and emphatic on this point. They say : " If a man who, laboring
under delirium tremens, kills another, is made responsible, there is
scarcely any species of insanity which, on like principles, would not be
subjected to tlie severest penalties of criminal law." ^
A party laboring under this species of insanity, not being responsible
for his acts committed while thus diseased, and the evidence in this case
tending to form this issue, it was the duty of t!ie learned judge, in his
charge, to have clearly and pertinently set forth the princii)lo3 of law
applicable to this defence. This was not done in that clear and distinct
manner required by the now well settled principles of law. 2
The charge of the court upon the only issue in this case, that upon
Avhiehthe defendant relied for an acquittal, to wit, insanity, is as follows :
"You are further instructed that where a defendant is accused of crime,
placed on trial, and the plea of insanity is interposed, the inquiry the
law, but is implied in the statute, which re-
<iuires that " when the clelendant is acquit-
ted on the ground of insanity, the jury shall
so state in tlieir verdict." Code Cr. Prac,
art. T2'2. It is unnecessary to determine
Avhethertlie defendant sliall establish his
insanity beyond areasonable doubt or by a
preponderance of testimony; all that is re-
quirod is, that he shall establish il to the
satisfaction of the Jury, who are the juilges
of the fact. Commonwealth r. Eddy, 7 Gray,
5S3; Ortweinr. Commonwealth, 76 Pa. St. 414;
lllawley's Am. Cr. Law, 283, 297; Lynch v.
Commonwealth, 77 Pa. St. 205.
As to reasonable doubt, it the charge
applies this to the whole case, this will sat-
isfy the demands of the law.
Reversed and remanded.
1 Wharton & Stille's Med. Juris , vol. 1, p.
302.
2 Burrcll V. State, 18 Tex. 713 ; Marshall
V. State, 40 Tex. 200; Lindsay i'. State, 1 Tex.
(App.) 327 ; Lopez v. State, 42 Tex. 298 ; Sutton
V. state, 41 Tex. 513; Miles v. State, 1 Tex.
(App.) 510; Pught'. State.a Tex. (App.) 539;
Richardson I'. State, 7 Tex. (App.) 48(5; Fran-
cis V. State, 7 Tex. (App.) 501; O'Connell v.
State, 18 Tex. 343; Vincent v. State, 9 Tex.
(App.) 203; Whalcy v. State, 9 Tex. (App.)
305; Henry v. State, 9 Tex. (App.) 358.
)ffence of
insane at
of insan-
>sue 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 l<nowledge, were held admissible
for the purpose of showing the state of nund of the deceased toward the pri.s-
oner at the time, and this tendency to show some real grounilfor the prisoner's
feeling toward the deceased.' Preparations made by a person to commit the
crime are relevant on the question of sanity and premeditation.* IJut omitting
to attempt to escape after a crime is not conclusive evidence of insanity.''
§81. Insanity cannot be Proved by Reputation. — The insanity of the pris-
oner cannot be proved by the testimony (jf witnesses that he was generally re-
garded as a man of unsound mind, and tiiat his reputation was that of a ''.erson of
unsound mind before the connnission of the alleged offence." Therefore evidence
offered by the accused that "his father was reputed in the neighborhood where
he tlwelt tu be at times insane " is properly rejected.'
§ S2. Previous and Subsequent Insanity. — The insanity must be shoAvn to
exist at the time the deed was done — previous or subsequent insanity is no ex-
cuse.* But it is obvious that in very many cases the insanity of the prisoner at
the instant of the commission of the offence can only be established by evi-
dence tending to prove that he was insane at some period before or afterward.
Therefore evidence of the mental condition of theprisoner both before and after
the act is admissiljie.'" " I'revious or subsequent insanity is no defence, unless
it existed at the time tlie act was done. Yet we cannot reject evidence to
prove insanity either before or after the act, for such evidence is proper to be
weiglied by the jury in coming to a conclusion whether insanity existed at the
time tlie act was ilone." •'
In Vance v. Commomcealth,^'^ it was held that where a prisoner's defence is
insanity, evidence to prove insanity before the act was connnitted is proper with-
out first proving the insanity rt< the time of the commission.
Where ther? L- a question of the prisoner's sanity at the time of the trial,
which is submitted to the jury, who And him sane, when he is afterwards put on
trial for tht ■'rae, all evidence as to his sanity at the time of the trial is inad-
missible which does not go to prove his insanity at the time of the commission
1 Choice .. Stnte, 31 Ga. 424 (1860).
" State V. West, 1 lloust. Cr. Gas. 371
(1873).
3 Com. t'. Wilson, 1 Gray, 337 (18o4).
4 Cole's Trial, 7 Abb. Pr. (N. S.) .321 (1868).
* Lake v. People, 1 Park. 495 (ia54).
6 r.rinkley v. .State, 58 Ga. 296 (1867) ;
Choice f. State, 31 Ca. 424 (1860).
■ State V. Hoyt, 47 Conn. 518 (1880).
e State v. Hays, 22 La. Ann. 39 (1870).
» People V. March, 6 Cal. 543 (1856).
10 Russell V. State, 63 Miss. 367 (1876) ;
State V. Felter,26 Iowa, 67 (1868).
11 McAllister r. State, 17 Ala. 434 (1850) ;
McLean v. State, 16 Ala. 672 (1849).
12 2 Va. Cas. 132 (1818).
PREVIOUS AXU SIDSEQUENT INSANITY.
8G1
rresuinplioii <>f ('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<es it i)rol)al)le tliat tlie intoxication continued and existed at llie time
the alleged criminal act was done. 2
In Warren v. State,'^ tlie |)risoner was on trial for murder, tlie defence relied
on being insunity and mental hallucinations and delusions. The court cliaiged
the jury almost in the language of Mr. tireenleaf.' Tliis cliargi; tlie Court of
Appeals approved. I{ut tlie trial court refused to give tliis instruction which
■was iisked l)y tho defendant. "That In deteniiiniiig tlie insanity of tiie
defendant at the time of the killing of M. (If tlie defendant did kill M.),
the jury are autliorized to look at all the facts and clreiiiiistanccs in
evidence before them relating to the question of defendant's sanity — tliat is,
all the facts and circumstances relating to llie defendant's mental condition
after and since the killing, as well as the facts and circumstances relating to
defendant's mental condition before tlie killing." On appeal, it was luld that
this instruction should have been given. " Testimony," said Wiiiri;, C. J.,
"that defendant had exhibited evidences of insanity since the iioiiiiciih- and up
to the time of trial, as well as before the killing, had been adduced and prop-
erly laid before the jury, and the jury should have been instructed that they
were to consider it, along and in connection witli tlie otlicr testimony, in arriv-
ing at their conclusion, for It is a rule of law, that evidence of the state of the
mind of the party both before and after the act done is admissible In determin-
ing the question of sanity."
In Sullivan v. People,'' the prisoner had confessed to the crime charged, but
an effort was made to avoid tlie force of the confession by showing that he was
insane when lie made it, though sane when the crime alleged was committed.
In the Supreme Court the record stated simply that there was evidence that he
was insane some thirty-six or forty-eight hours after the time of tiic confes-
sion, and other evidence that he was not insane. It was held in the Supreme
Court that as there was no evidence that he was insane at the time of the con-
fession, the rulings of the trial court on the question of sucli insanity, the
burden of proof, and the nature of the evidence on the subject, ^vere immaterial
and could not be assigned for error.
It is error for the court to instruct tlie jury to take into consideration the
physical appearance of the prisoner at the trial in deciding as to his .sanity at
the time of the crime."
§ 82 a. Continuance of Insanity — Presumption. — Insanity once proved to
exist, is presumed to continue until a lucid interval is shown.' In iState v.
Fann,** it was conceded that the prisoner was violently insane shortly before tlie
homicide, and was then of unsound mind, but it was insisted that at the time
1 Sliultz V. state, 13 Tex. 401 (18.55).
2 Pierce v. Stale, 5:? Ga. Sno (lS7t).
3 !)Tex. (App.) 019 (1880).
4 2 Greenl. on F^v., sect. ;!72.
6 31 Mich. 1 (1875) ; Aconression made when
insane is no evidence of guilt. People v.
"Wreden, 59Cnl. 341 (ls81).
'"> Bowden v. People, 1-2 IIuii,S5 i;i'^'77).
■ Stater. Spencer, 21 N.J. (L.) I'.Ki (184<i) ;
Iladtleld's Case. Slate v. Jolmson, 40 Conn.
130 (1873) ; State r. P.rown, 1 IIou.st. Cr. ('as.
5:11)1,1878); but see People r. Sniitli, 57 Cal.
130 (1880).
i^ 8-2 X. C. 031 (1880).
8fi2
KVIDKNCE AND PUACTICK.
Notes.
of till' cojiiinlsslon of the offence, he hud ii lucid interval iind was respoiislhk'
for his acts. The i)rlsoner asked the foMowinfj instruction: "If the Insanity
of tile prisoner shortly before the homicide, he admitted or found by the jury,
before tiie jury can convict the State must jirove beyond a reasonable doubt
that at tile linuMif (lie iiomlcidc tiie prisoner liad a lucid Interval, and was in
such a nieiital condition as to mal<e hlni responsible for ids acts." This tlie
court refused, but told the jury that If the insanity of tli(( prisoner shortly
before the crime were found by them, then It was the duly of tlie State to show
not beyond a reasonable doubt, nor by a preponderance of evideu(!e but t(j the
satisfaction of the jury tiiat at the time of the homicide lie had such a lucid Inter-
val. On appeal this ruiiiiy wasapproved : " In an indictment for ninrder." said
nii.i.AHi), J., " the two constituents of tlus criiiie, to-wit, a voluntary killliii^
and malice afon'thought, must be proved by the State, as it makes the charjje;
and as the accused is presumed to lie innocent until liie contrary is shown, liotii
of these elenieiits must be proved. Tlie killinj; lieiiin shown, then the otiier
Ingredient, malice, Is? al.so proved as a fact in the eyes of the law, not by evi-
dence adduced, but by a presumption that the law makes from the fact of tlie
kllllnjr, and these two essential facts belnu; thus established, the legal conclusion
tliereon is, that the offence charged Is murder.' Hut the impllcatlou of malice
made by the law and taken as a fact, Is not conclusive on the party accused, but
may be rebutted. He may show, If he can, by his i)roofs, that there was no
malice prepense, and thereby extenuate to manslaughter, or make a case of
justlllable or excusal)le homicide, or a case of no criminality at all by proof of
insanity at the time of tlie act comniitted, disabling him to know right from
wrong.' The burden lies on the accused to make these proofs, If he
can; otherwise the conclusion of murder, on a malice Implied, will con-
tinue against him and will call for, and in law, oljlige u conviction by
the jury. And in the making of such extenuating or acquitting proofs,
the law puts on him the onus to do so, not excluding all reasonable
doubts, but merely to the extent of satisfying the jury. There are
respectable authorities which hold that mental competency of the accused is
one of the constituent elements of the crime imputed, and that when that Is
controverted, it must be shown beyond a reasonable doulit in the minds of the
jury. ]?iit such is not the law of this State. The doctrine with us is well
established, tliat when there is a voluntary killing as is admitted in this case,
the law presumes malice, and makes the crime murder, unless as j. ■• ■
explained, tlie accused can and does repel the same by evidc " < ' lis own or
by legal inferences from the surrounding and attending cir( > 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<iuit him on that
ground, but not on the fanciful ground that
though they believe he was then sane, yet as
there may be a reasonable doubt of such
sanity, he is therefore entitled to an aci|Uit-
tal. 3. A person, though drunk, may be cap-
able of deliberation and premeditation, and
if the jury believe that he wilfully, mali-
ciously, deliberately and premeditatedly
killed the deceased, they ehould find him
guilty of murder in the first degree, though he
was intoxicated at the lime of the killing. 4.
If a person who has formed a wilful, deliber-
ate and premeditated design to kill another,
in pursuance of such design makes himself
drunk in order to nerve himsolf to the deed,
and then meets the subject of his malic*,
when he is so drunk as not to be able to de-
liberate on and prcnieditati^ the murder, and
kills liim, he is guilly of munlcriii the first
dcgroi!. .'"). A jjcrson, whether an habitual
drinker or not, cannot voluntarily make him-
self so drunk as to become on that account
irrc^sponsiblc for his conduct during such
druiikfiincss. IIu maybe iierfectly uncon-
scious of wliat li(? does ; and yet he is respon-
sible. He may be incapable of express
malice; but the lawimiilies malice in such
cases from the nature of the instrument used,
the absence of provocation, and other cir-
cumstances under which the act is done. 0.
If a person kills another without provocation
and through reckless wickedness of heart,
but at the lime of sodoinghiscondition from
intoxication is such as to rentier him incap-
able of doing a wilful, deliberate and pre-
meditated act, ho is guilty of murder in the
second degree. 7. Where a statute estab-
lishes degrees of murder, evidence of drunk-
enness is relevant. 8. As between the two
offences of murder in the second degree and
manslaughter, the drunkenness of the of-
fender is not relevant; the killing being vol-
untary, the offence is necessarily murder in
the second degree, unless the provocatir)n
was of such a character as would at, common
I
874
EVIDENCE AND PRACTICE.
Notes.
§ !)8. Habeas Oorpus — Ball. — In United States v. Lawrence,^ the prisoner,
having been eoniinitted for trial for an assault with intent to Ivlli the President
of the United States (General Jackson), the court refused to issue a habeas cor-
1 4 Oranch C. C. 518 (IftW),
law reduce the crime to manslaughter; for
which latter oifcnce a drunken man ia aa re-
sponsible as a sober one.
In State v. Smith, 49 Conn. 376 (1881), the
following points were determined : 1. It is no
«rror to refuse to charge that in murder in
the first degree, the Jury must llnd that the
act was done while the prisoner was in full
possession of his reasoning powers, unim-
paired by anything affecting his mental con-
dition. A lower condition of the mental
faculties would be suiBcicnt. 2. It is wholly
a question of fact for the jury whether intox-
ication existed to such a degree as to inca-
pacitate the prisoner for conceiving and
executing a wilful, deliberate and premedi-
tated intent to liill. 3. It is not error for the
-court, having instructed the jury that intox-
ication might destroy the mental capacity to
form a spcciflc intent to kill, to refuse to in-
struct them that if the prisoner was so intox-
icated that his drunken condition was
observable, it was a matter of " extreme im-
portance " on tlie question of his capacity to
form such an intent. 4. It is no error for
the court to refuse to charge that threats
made by an intoxicated person are entitled
lo very little consideration in determining
the que&tion of his intent. It is wholly a
matter for the Jury, and the court is not
bound to say any thing about it.
In Hart v. People, decided in the Supreme
Court of Nebraska, in 1883, it was said : " The
better rule we think, and the one adopted
by this court in the case of Wright v. People,
4 Xeb. 407, is in effect that if one accused of
crime h.is the mental capacity to distinguish
right from wrong in respect to the particular
•act charged, he is responsible." Hart r. Peo-
ple, 14 Neb. 375 (1883).
In Ford v. State, decided by the Supreme
Court of Alabama in 1883 (16 Rep. 647) , it was
held that where insanity is interposed as a
defence in criminal cases, it must be estab-
lished to the satisfaction of the jury by a
preponderance of the evidence, and a rea-
sonable doubt of the defendant's sanity,
raised by all the evidence, does not authorize
an acquittal.
In Carter v. State, decided by the Supreme
Clourt of Georgia in 1876, it was held that the
presumption of siiaity must be overcome by
a preponderance of the evidence. Carter v.
State, 56 Ga. 463 (1S76).
In lieff. V. Davit, 14 Cox C. C. 563, tried be-
fore Stephen, J., in April, 1881, the rule that
insanity resulting from drunkenness may be
a defence was recognized. The prisoner
(who had previously been drinking heavily
but was then sober) made an attack upon his
sister-in-law, Mrs. Davis, threw her down
and attempted to cut her throat with a knife.
Ordinarily he was a peaceable and good-
natured man, and on friendly terms with her.
At the police station after his arrest he said :
"The man in the moon told me to do it. I
will have to commit murder as I must be
banged." He was examined by two medical
men who found him suffering from delirium
tremens, resulting from over indulgence in
drink. According to their evidence he would
know what he was doing, but his actions
would not be under his control. In their
Judgment neither fear of punishment nor
legal nor moral considerations would have
deterred him — nothing short of actual phy-
sical restraint would have prevented him
acting as he did. He was disordered in his
senses and would not be able to distinguish
between moral right and wrong at the time
he committed the act. Under proper care
and treatment he recovered in a week, and
was then perfectly sensible. For the defence
it was submitted that he was of unsound
mind at the time of the commission of the
act, and was not responsible. Steimien, J.,
charged the jury as follows: " The prisoner
at the bar is charged with having feloniously
wounded his sister-in-law, Jane Davis, on
the 14th day of January last with intent to
murder her. You will have to consider
whether he was in such a state of mind as to
be thoroughly responsible for his actions.
And with regard to that I must explain to
you what is the kind or degree of insanity
which relieves a man from responsibility.
Nobody must suppose — and I hope no one
will be led for one moment to suppose —
that drunkenness is any kind of excuse for
crime. If this man had been raging drunk,
and had stabbed his sister-in-law and killed
her, he would have stood at the bar guilty
of murder, beyond all doubt or question.
But drunkenness ia one thing, and the dis-
ADDENDA OF LATE GASES.
875
Cases too Recent to Report.
pua for the purpose of inquiring as to his sanity, and for that cause «' to dis-
charge him from imprisonment in the common gaoi and to secure the public
peace by proper restraint." In Zembrod v. State,^ the prisoner was charged
IM Tex. 519(1860). .
eftscs to which drunkenness leads are differ-
ent things, and if a man by drunkcitiiess
brings on a state of disease which causes
such adcgroo of madness, even for a time,
which would have relieved him from respon-
sibility if it had been caused in any other
way, then he would not be criminally respon-
sible. In my opinion. In such a case the man
is a madman, and is to bo treated as such,
although his modness is only temporary.
If you think ho was so insane — that it his
insanity hud been produced by other causes
he would not bo responsible for his actions —
then the mere fact that it was caused by
drunkenness will not prevent it having the
effect which otherwise it would have had of
excusing him from punishment. Drunken-
ness is no excuse, but deliriumtrtmens causoi
by drunkenness may be an excuse if you
think it produces such a state of mind as
would otherwise relieve him from responsi-
bility. A person may be both insane and
responsible for his actions, and the great
test laid down in McX.ighten's Case was
whether he did or did not know at the time
that the act he was committing was wrong.
If he did, even though he were mad — he
must be responsible ; but if his madness pre-
sented tliat then he was to be excused. As
I understand the law any disease which so
disturbs the mind that you cannot think
calmly and rationally of all the different
reasons to which we refer in considering the
Tightness or wrongness of an action — any
disease which so disturbs the mind that you
cannot perform that duty with some moder-
ate degree of calmness and reason, may be
fairly said to prevent a man from knowing
tlint what he did was wrong. Delirium tre-
mens is not the primary but the secondary
consequence of drinking, and both the doo-
tors agree that the prisoner was unable to
KSontrol his conduct and that nothing short of
Actual physical restraint would have de-
terred him from the comraission of the act.
If you think there was a distinct disease
caused by drinking, but differing from
drunkenness, and that by reason thereof he
did not know tliat the act was wrong, you will
find a verdict of not guilty on the ground of
insanity; but if you are not satisfied with
that, you must find him guilty either of stab-
bing with intent to murder, or to do grievous
bodily harm."
The Jury returned a verdict of not gallty
on tlie ground of insanity, and ho was
ordered to be detained during the Queen's
pleasure.
The ruling In Webb v. State, 9 Tex. (App.)
400, and King v. .State, Id., 515, on the legal
test of insanity was afOrmed by the Court of
Appeals of Texas in the case of King v.
State, 13 Tex. (App.) 283, decided in 1882.
In People v. Camel, 2 Edm. Sei. Cas. 200
(1831), Edmonds, J., charged the Jury that
" the insanity which was to excuse crime
must be not the mere impulse of passion, an
idle, frantic humor, or unaccountable mode
of action, but an absolute di.s;)osscssion of
the free and natural agency of the human
mind. To warrant a conviction the jury
must be satisfied that the prisoner had the
capacity to form an intention, and dnvi.se the
means of executing it." And see I'cople v.
Russ,2 Kdm. Sel. Cas. 420 (1817). This 8ec-
ond volume of Judge Edmonds' decisions
was not published till the fall of 18^3.
In McDougal v. State, 88 Ind. 24, decided
by the Supremo Court of Indiana in 1883, it
was held: 1. The prcsumptionof sanity ope-
rates as evidence in behalf of the State, and,
if the other eviden<;e on the part of the State
docs not OTC'throw it, the State may rest
upon it as suflicient. 2. When the pica of
insanity is in, the question of sanity or in-
sanity is before tiie Jury and is to be passed
upon by them whether the defendant has
introduced any evidence upon the subject
or not.
ZoLLARS, J., delivered the opinion of the
court as follows : Upon an indictment charg-
ing murder in the first degree, appellant
was tried, convicted and sentenced to suffer
death. The facts in the case, as shown by
the evidence on the part of the State, are
substantially as follows : —
Appellant, with bis wife and children,
resided in Jeffersonville on the day of
September, 1882 ; the wife of appellant was
away from home at work. Having been ab-
sent for awhile in the evening, appellant re-
turned at about eight o'clock, brought an axe
in the house, and holding it up said to his
daughter, a girl of fourteen, " Look at this;
4
87r,
EVIDI'.NCK AND ritAfTKE.
Notes.
with iminU r. Tlic killiiiii was provt-d. On iiii iipplicatlnn for hail a miinhcr of
witnesses testilled to acts antl dei'larations of Ills, hullcallve of iMsanil\. In thu
Suprunit' Court It was said: " The appellant may be mi 11 ty of a capital ofTciicu
i
:a
i
this Is whnt I am goiii^r to kill ymir tiiDllicr
Willi when ^^ll' conii's Inmir." He liiiil liucii
iiKikiii^; lliieatH (hat lie would kill his wifo
for four or llvo years. Ho Icfl the axu in
the lioiiao iind wii ; ahspi\t afftiiii until nine
o'elock. Upon hin return, the ilaiiKlitiM' hav-
ing? retired, he sjieiil an hour in conversntioii
Willi her. Nolliin^' seems to Iimv< been sjiid
in this eonversa; ion in t'l'lalion to hi.-< wife.
She returiK'd hone' til ahout ten o'elock.
Uiion lier return, appellant asked her why
chc had not waited foi him to aeeoinpany
her to TowuBviile. Sho 'inswered; '•! did
wait until six o'elock, nml 'houjrhl you was
not eoiniiijf." Jle said, " ^'oi, were ashamed
toffowilh me." To thisshe a'lHwered, ".Vny
one would bo ashamed to K'> 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(7<A«<ime
of the alleged killing. Now, while it is true
that it was not material whether the defend-
ant was insane at any other time, if ho was
sane nt that time, yet his condu>rt, 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<oning which might, perhaps,
seem to support this view. The difference
between a bare preponderance of evidence
and tliat which is next less might be said to
be infinitely small, and tha' what is infinitely
small cannot be wciglicd or appreciated.
But such considerations are too refiuod.^
OPTNIONS ON INSANITY.
879
Experts and Ordinary Witnesses.
§ 100. Opinions on Insanity — Experts. — The sanity or insanity A the prisoner
Is proved by the evidence of persons acquainted with him or of medical experts
whose opinions are founded on observation, or examination, or upon a hypo-
thetical case stated to them In court.* For the rules on this subject see my book
on Expert and Opinion Evidence.*
The rule as to the presumption of sanity has
its practical application in imposing the bur-
den of proof upon him who sets up insanity.
This is all. The presumption is not to be
weighed against any measurable amount of
evidence. The judgment, v e think, must be
reversed and the case remanded for another
trial.
Seevers, J., filed the following dissent
from the opinion of the court on these
points: 1. I do not believe the instruction
set out in the fourth paragraph of the fore-
going opinion is erroneous. The material
Inquiry was whether the defendant was in-
sane at the time the homicide was com-
mitted. His acts and conduct at that time,
therefore, were material as bearing on this
quest on. It is immaterial whether defend-
ant was insane prior to the homicid.c if he
was not insane then. The acts and conduct
of the defendant prior to the homicide,
bearing on the quebtion of his insanity at
the time of t:'e homicide, are not excluded
from the consideration of the jury, unless it
can be said to have been ■ le by Imphca^
tion. But If this is so, the i ruction is not,
therefore, erroneous. But in my opinion no
such Implication can bo drawn. 2. This
court has held, in more than one adjudged
case, that when the defense is insanity the
burden is on the defendant to establish such
defense by a preponderance of the evidence ;
and this, and no more. Is the tho-.ight of the
instruction set out in the sixth piragraph of
the foregoing opinion. By the use of the
word 'probable' the court meant this, and
no more, and so the jury, I think, under-
stood the Instruction. It seems to me-
that the reasv. ning of the foregoing opin-
ion upon the ^ oints above mentioned is
refined, technical, and without substantial
merit. The court plainly stated that insanity
must be establisiied by a preponderance of
the evidence, and they could not h ve under-
stood that any other rule was am ounccd in
the instruction. I think it is ui fair to the
court, and not required by the c; se, to resort
to dictionaries for a definition of the word
' probable,' when the connection in which
the WO' 1 is used is taken into consideration.
When ihe instruction as a whole is consid-
ered, I am unable to conclude that the word
in question as used was prejudicial. RoTH-
KOCK, J., concurred in this dissent.
In Flanig xn v. People, 86 N. Y. 554, it was
held that vol-jntary drunkenness was no
defence to a crime.
1 Holcomb V. Sticte, 41 Tex. 125 (1874) ;
McClackey v. State, 5 Tex. (App.) 320 (1S78) ;
Gehrke v. State, 13 Tex. 568 (1855) ; McAllis-
ter f. State, 17 Ala. 434 (1850); Armour r.
State, 63 Ala. 173 (1879) ; People v. Thurston,
2 Park. 49 (1852) ; It. v. Francis, 4 Cox, 67 ;
R. V. Searle 1 M. & Rob. 75 (1831); R. v.
Wright, Russ. &Ry.4.56 (1821) ; Clark r. State,
12 Ohio, 4*> ; 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 jii<lgment of the law. A
madman cannot make a rational defence, and as to punishment, furiosus
solo furore puniter. ■'•
The statute s explicit that " no insane person can be tried," but it
does not statt- in what manner the fact of insanity shall be ascer-
tained. That is left as at common law, and although in the discretion
of the court ther modes than that of a trial by a jury may be resorted
1 ?, Id., ssx.
a C. 10.
2 4 Bla. Com. 24.
* p. 205.
•IHalc P. C. 34, 35; 4 Bl. Com. 396-6; 1
Chii. Cr. L. (ed. 1841), p. 761; 1 Uuss. on Cr.
(ed. 1845), p. 14; Shelf, on Lunacy, 4C7— 8;
Stock, on Non. Conip. 35—0.
TRIAL OF rUESENT INSAMTV.
885
Cliallcnjro of Jurors.
Ig-
' »' 3
to, still, in important cases, that is regarded as the most discreet and
proper course to be adopted J
At common law the only regular mode of redress for errors occurring
on criminal trials was by motion for a now trial, in the court where the
trial was had, unless the error was in some matter which formed a part
of the record, wlien it might be reviewed, after judgment, by writ of
error. Bills of exception, by which questions of law, made and decided
on such trials, may be brought up and reviewed in a higher court, were
unknown to the common law, although now allowed by a statute of this
State. But the statute is limited to exceptions taken on the tiial of the main
issue, and does not reach such as are made on the trial of a preliminar}-
or collateral question. The words are " on the trial of any indictment,
exceptions to any decision of the court may be made by the defendant,
in the same cases and manner '^'ovided by law in civil cases." - A trial
of the qjiestion of present Insanity is not a trial of the indictment, but
is preliminary to bitch trial. The object in such a case, issimpl}' to de-
termine whether the person charged with an offence and alleged to be
insane, shall be required to plead and proceed to the trial of the main
issue of guilty or not guilty. The statute does not authorize exceptions
to be taken on such preliminary trial ; and if errors occur, they must
be corrected, if at all as at common law, by the court which committed
them. For this reason, none of the exceptions taken by the prisoner's
counsel on the trial of the preliminary issue in th's case can be regarded
as regularly before us ; nor could they, if held to be well taken, consti-
tute a ground for reversing the judgment of the court below.
This part of the case might here be dismissed ; but I choose not to
do so lest an implication should be supposed to arise that in the opinion
of this court the preliminary trial was conducted throughout with regu-
larity and according to law.
On the preliminary trial the counsel for the prisoner claimed the right
to challenge jurors peremptorily, as it is conceded to exist on the trial
of the main issue. This the court refused to allow, and, it seems to me,
correctly. Peremptory challenges are allowed in favorem vit(je, and at
common law are restricted to the main issue, in which the life of the
party is in jeopard}', and cannot be made on the trial of any collateral
issue whatever. 3 To the like effect is the statute, which secures to
" every person arraigned and put on his trial for any offence punishable
' See the authorities last rcfeiTcil t(i.
Also 1 Hawk P. C. by Curwood, p. 3, and
note, Steph. Cr. L. 3, 4, 280, 334.
8 2 K. S. 7:}6, § 21. See also 3 Id., 849.
2 2 Hale's r. C. 267, c. 35 ;Bar. Abr., Juries,
E. 9; Foster's Cr. L., 42; 4 r.l. Com. ;!,')3, 390;
Co. Lit. 156 b.; King r. Kadcliffe, 1 W. BL
3,0,
880
INSANITY AT TRIAL OR AFTER COXVICTION.
Froemiin «. People.
with death, or with imprisonment in a State prison ten years or any
longer time," the right, '' peremptorily to challenge twenty of the per-
sons drawn as jurors for such trial." ' This preliminary trial was not a
"trial for any offence " whatever, and there was no error in refusing to
allow peremptory challenges to be made. Challenges for cause are al-
lowable on the trial of preliminary as well as final issues. This was
conceded, and several of tliis description were interposed on belialf of
the prisoner. I pass by these without particular examination, as this
class of challenges Avill again be presented for consideration before the
case is closed, when such suggestions will be made as are deemed per-
tinent to this, as well as other parts of the case.
An objection was made to the oath as administered to some of the
triers of challenges to jurors drawn for this preliminary trial. The
oath was thus: " You do solemnly swear that you will well and truly
try and well and truly find, whether the juror is indifferent between the
People of the State of New York and the prisoner at the bar, upon the
issue joined." This form of oath was not administered in every in-
stance, the qualification at its close, made by the words " upon the issue
joined," being sometimes omitted, as it should have been throughout.
The oath as given in books of approved credit and authority contains no
such limitation, but requires the triers to find whether the juror is or is
not indifferent between the parties to the controversy. ^ And jurors
should be so. It is not enough that they are indifferent upon the par-
ticular issue to be tried. An actual and thorough impartiality in re-
gard to the parties is required ; for no one who labors under prejudice,
malice, or ill-will towards another can be in a fit frame of mind to act
impartially where his rights are in question.
In Brittain v. Allen,^ the defendant challenged a juror for cause, to wit,
hostility between the juror and the party challenging. The challenge
was overruled and the juror was sworn. On a motion for a new trial,
Henderson, C. J., said : "' It seems that the judge disregarded all kinds
of hostility but that which related to the particular suit then to be tried.
I think that the law is otherwise. The juror should be perfectly im-
partial and indifferent ; causes apparently very slight are good causes
of challenge, and that which is good cause for quashing the array, is
good cause of ciiallenge to the polls. I mention this, as most, at least
many of the cases, are challenges to the array. If the sheriff be liable to
I
1 2 R. S. 734, sect. 9.
- Tr. Per. Pais, 205; 1 Chit. Cr. L. 549;
Bac. Abr., Juries, E. 12, note; Clark v. Os-
trander, 1 Cow. 441, note (13 Am. Dec. 546) ;
Anonymous, 1 f*alk. 152.
a 2 Dev. V'l.
TRIAL OF PKE8ENT INSANITY.
887
Challenges — Triers — ( )ath .
546);
the distress of either party, or if he be his servant or counsellor, or if
he has been godfather to a cliild of eitlier of the parties, or either of
them to his ; or if an action which implies malice as assault and btittery,
slander, or the like, is depending between them, these all are causes of
principal challenge.* From these cases, particularly the one whicli
states a suit pending which implies malice, it appears that general hos-
tility, by which I mean that which is not confined to the particular suit,
is cause of challenge. From these causes, the law of itself implies a
want of indifference, which the defendant offered to show. I think he
ought to have been permitted to do so, and if he succeeded, that the
juror should not have been sworn. For this cause, and for this only,
there should have been a new trial," So in the case at bar, the oath
only required the triers to find indifference between the parties " upon
the issue" then to be decided. In other rcsi)ects, if the clause is sus-
ceptible of any meaning, the juror, although a sworn enemy of the pris-
oner, might still be found by the triors to be a competent and i)roi)er
person to pass upon the question then to be decided. This wouhl he in-
tolerable, and an oath which requires, or will admit of such a construction,
cannot be correct. There is no precedent for one in this form ; as will be
seen on looking at the authorities already referred to. At the very best,
the clause objected to is unmeaning or ambiguous. But an oatii should
be plain, explicit, and free from all ambiguity. If this clause does not
necessarily affix an improper limitation to the obligation which the
law seeks to cast upon the trier by the oath administered to him, it is
very liable so to be construed and understood as to have that effect.
In charging the jury on the preliminary issue, which, we have seen
was on the fact of present insanity, the court said, " The main question
with the jury was to decide whether the prisoner knew right from
wrong ; if he did, then he was to be considered sane."
The statute before cited is emphatic that '' no insane person can be
tried." In its terms the prohibition is broad enough to reach every
possible state of insanity, so that if the words are to be taken literally,
no person while laboring under insanity in any form, iiowever partial
and limited it jnay be, can be put ui)on his trial. But this the legisla-
ture could not have intended ; for although a person totally bereft of
reason cannot be a fit subject for trial or punishment, it by no means
follows, that one whose insanity is limited to some particular object or
conceit, his mind in other respects being free from disease, can justly
claim the like exemption. This clause of the statute should receive a
1 Bac. Abr., Juries, E. 1.
88H
INSANITY AT TUIAL Oii AFTER CONVICTION.
rrecmun v. People.
reasonable interpretation, avoiding on tlie one hand what would tend to
give impunity to crime, and on the other seeking to attain the humane
object of the Legislature in its enactment. Tiie common law, eciually
with this statute, forliids the trial of any jierson in a state of insanity.
This is clearly shown by authorities which have been referred to, and
which also show the reason for the rule, to wit, the incapacity of one
who is insane to make a rational defence. The statute? is in afllrmance
of this common law principle, and the reason on which the rule rests,
furnishes a key to wiiat must have been the intention of the Legislature.
If, therefore, a person arraigned for a crime is capable of understand-
ing the nature and object of the proceedings going on against him ; if
he rightly comprehends his own condition in reference to such proceed-
ings, and can conduct his defence in a rational manner, he is, for the
purpose of being tired, to be deemed sane, although on some other sub-
jects his mind may be deranged or unsound. This, as it seems to me,
is the true meaning of the statute ; and such is the construction put by
the English courts, on a similar clause in an act of Parliament.
By the .'5!) and 40 George IIL^ it is enacted that " if any person in-
dicted for any offence shall be insane, and shall upon arraignment be
found so to be by a jury lawfully impanelled for that purpose, so tiiat
such person cannot be tried upon such indictment, it shall be lawful for
the court before whom any such person shall be brought to be arraigned
to direct sucli finding to be I'ccorded, and thereupon to order such per-
son to be kept in strict custod\' till his majesty's pleasure shall be
known."- The question upon this statute is the same as upon ours,
that is, is the alleged offender insane. Russell says: •' " If a prisoner
have not at the time of the trial, from the defect of his faculties, sufli-
cient intelligence to understand the nature of the proceedings against
him the jury ought to find that he is not sane, and upon such finding, he
may be ordered to be kept in custody under this act." For this
he refers to the case of Bex v. Di/non,* before Mr. Justice Parke, in
1831. In that case the prisoner was indicted for murder, and on being
arraigned stood mute ; a jury was then impanelled to try whether she
did so by malice or by the visitation of God, and they found she did so
by the visitation of God. The judge thereupon examined on oath a
witness who was acquainted with the prisoner, and who swore that she
could be made to understand some things by signs, and could give her
The witness was then sworn to interpret and make
answers by signs.
1 Ch. 94, sect. 2.
- 1 Rus>s. 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)
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1.0
I.I
11.25
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- lis llilio
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1.4
1.6
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'/
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'<i by whioii to bound the
inquiries nuule of tliese witnesses ; on the contrary, I tliink it quite clear
that the court regarded the preliminary verdict as decisive of the ques-
tion of present insanity, and therefore limited the witnesses to the time
when that verdict was rendered. In giving reasons for his opinio;'
that the prisoner was insane, Dr. Van Epps spoke of an interview with
him since the Cth of July, when he " was stopped by the court, who
then remarked (an objection having been made by the counsel for the
People) that the question of jjresent sanity had been tried and a verdict
rendered on the Gth of July instant, and that the question of the pres-
ent sanity could not then be again 'tried;" that the question now
was as to the sanity of the prisoner when the deed was done the pre-
ceding March, " and that the evidence of insanity must be confined to
facts before and at the time of committing the act, and up to the Gth of
July instant, wl.i'u the verdict of sanity was rendered." Dr. Hun,
another of these witnesses, had first seen the prisoner on the 15th
of July. The prisoner's counsel " proposed to prove by this witness
that, in iiis opinion, the prisoner is and was insane at the time of the
commission of the crime. This was objected to by the counsel for the
People, on the ground that the verdict on the preliminary issue, ren-
dered on the sixth day of July instant was and is conclusive that the
prisoner was sane on tliat duv ; and that the same cannot be contra-
dicted by evidence." The court did not pass directly upon this offer
and objection ; although the ground stated by the counsel for the People
is understood to have been precisely that which the court acted upon.
This witness was asked if he had made a personal examination of the
prisoner since his arrival at the court, which was on the ISth of July,
"with reference to the state of his mind." To this the counsel for the
People objected, and the court refused to allow the witness to give an
answer. He was then asked if it was his opinion, founded upon per-
sonal examination since the Gth of July, that the prisoner was insane
on the twelfth of March when the homicide was perpetrated. This was
objected to by the counsel for the People, and the court sustained the
objection. The witness was then asked his opinion, founded en such
examination, as to the prisoner being insane at the time when the (lues-
tion was put. This was also objected to and excluded by the court.
I
OnXIOXS ox IXSAXITY.
895
opinions of MtMJical Mm.
Dr. McNanghton was examined under like restrictions. "The court
decided that the witness should not testify as to any examination made
by liira of the prisoner since the sixtii day of July instant," and par-
ticularly " instructed the witness that lie should, in any future testimony
to be given by him upon the trial of this cause, exclude all knoAvledge
or information gained by him of or about the prisoner by or from any
personal examination made by him of said i)risoner, since the said sixth
day of July instant." These references to points decided and views
expressed by the court clearh' show, in my opinion, that the court re-
garded the preliminary verdict as absolutely conclusive for all purposes,
in this case, that the prisoner on and after the sixth of July was in a saue
state.
The views of the court upon this part of the case were, in my opin-
ion clearly erroneous. In strictness the verdict on the preliminary issue
was not before the court and jiuy on the trial of the issue of guilty or
not guilty, nor was it, in any respect, material to such trial. But if it
should be regarded as a fact in the case, of which the court and jury,
while engaged in the trial of the main issue, might take notice, no such
consequence as that deduced by the court would follow from it. The
only obje -t of the preliminary trial was to ascertain the mental condi-
tion of the prisoner, in order to determine whether he should then be
tried on the indictment. This, I repeat, was the only object of that
trial, and the result at which the first jury arrived could have no possi-
ble bearing or just influence upon the trial of the main issue. The
indictment was not to be tried jMecemeal, but at one time, and by a sin-
gle jury. If, therefore, the opinion sought to be obtained from those
medical witnesses was otherwise competent and proper, and that seems
to have been conceded, it is perfectly clear that the preliminary verdict
constituted no obstacle to its reception.
I am not about to inquire how far, or under what circumstances, the
opinion of medical witnesses may be admissible on the question of insan-
ity, although in general, nothing is better settled than that such evidence
is competent.' And I entertain no doubt that such a witness should be
allowed to express an opinion in regard to the mental condition of a
person alleged to be insane in the month of March, although the opinion
may have been founded solely on an examination made in the succeed-
ing July. In most cases, undoubtedly the opinion would be more sat-
isfactory and convincing, when based on observations made at or about
1 1 Phil. Ev. 2!iO; Shelford on Lun. iJ', 07-73; 1 Greenl. Et., •^ect. 44u.
896
INSANITY AT TRIAL OK AFTER roXVICTION.
J'roL'iimu V. Pt'oplo.
the time to which the inquiry relates. But this is not decisive against
the reception of such evidence, though founded on examinations made
at a later period. The competency of the testimony is one question,
and its effect another. The first is for the court, and the latter for the
jury. It will sometimes, undoubtedly, be found, and i)erhap3 not un-
frequently, that the mental malady is such that an examination would
disclose beyond all peradventure to a sidlful physician, what must have
been the condition of the patient for months or years before. The late-
ness of the time when the examination was made, as well as the char-
acter of the malady, are certainly to be considered in determining the
degree of consequence which should be given to the opinion of the wit-
ness, but unless the intervening time is much greater than from March to
July, that can furnish no solid objection to the admissibility of the evi-
dence. If I could, therefore, adoi)t the suggestion that the sixth of
July was taken by the court as a reasonable limitation to inquiries of
this description. I should still be unable to agree that the court had a
right to impose any such restriction upon the witnesses. It was com-
petent for such witnesses to state what their opinions were, whether
founded on examinations before or during the trial ; and these opinions
might not only extend to the mental condition of the prisoner at the
time when the homicide was perpetrated, but they might be brought
down to the very time when the witness was speaking. The latter
would be admissible, not b(!cause the present insanity of the prisoner
would necessarily control the verdict, but because it tended to fortify
the conclusion that insanity existed in the preceding March. But, al-
though sucli are my yiews upon this part of the case, it is not supposed
that the court excluded the evidence of the opinion of these witnesses
in consequence of the lateness of the period when their examinations
had been made. The evidence was shut out, as I understand the case,
because the verdict on the preliminary issue was supposed to constitute
an insuperable bar to its reception. This, as before said, was, in ray
judgment, erroneous. Upon the whole case, therefore, I think the
judgment of the court below should be reversed, and a new trial or-
dered.
Whether the prisoner was or was not insane at the time of the homi-
cide or the trial, is not a question before "is on this bill of exceptions,
and no opinion on that subject is intended to be expressed or intimated.
Judgment reversed.
INSANITY AT TRIAL.
807
Unitc'il States v. Liincastcr.
insanitt at trial— inquiry— blirdkn of troof — right to
open and cluse.
United States v. Lancaster.
[7 Blss.440.]
In the United States Circuit Court for the Northern District of Illinois.
Bclorc Hon. Henry W. Hlodgett, District Judge .
1. Upon an Inquisition of Insanity una indtion for a new trial after verdict of guilty
ol perjury, the ((ueslion i.s tlio .-anii' as if raiscil when the prisoner was called to ])lcad.
The (luestion to be decided is, whether the defendant was incapable of comprehending
the dftngcrouB position ia wliich ho was placed, and of taking intelligent measures to
meet it.
2. Burden of Proof. — The burden of proof of insanity is upon the defendant, yet he .s\iouId
have the benetlt of any reasonable doubt.
8. Practice — Opening and Closinfr. — In an inquisition of insanity the counsel for the
prisouer should opcu and close the case to the jury.
Mark Bamjs, United States Attorney, for the United States.
Leonard Swett, for defendant.
Blodgett, J., cliarged the jury as follows: On the fourteenth of
February last, Alvin N. Lancaster was put upon his trial in this court,
on an indictment for the crime of perjury. The trial resulted in a ver-
dict of guilty, and a motion was made for a new trial. One of the
grounds for this motion was based upon the suggestion that at the time
of his trial the defendant was of unsound mind, and therefore unable to
properly plead to the charge or conduct his defence. This suggestion
was sustained by such affidavits and other proofs as, in my estimation,
made it necessary to the ends of justice that tlie facts should be investi-
gated by a jury. And you have been impanelled to inquire into and
pass upon the question.
There is no controverted question of law in the case, and the inquiry
involves only a question of fact, of which you are the proper and sole
judges. The question is, was the prisoner, at the time of his trial, so
far of unsound mind as to be incapable of comprehending the nature of
the charge against him, and of properly presenting his defence. The
testimony is m.iterial to be considered only so far as it tends to throw
light on this question, and naturally divides itself into two classes: 1.
The testimony of witnesses wlio have known the prisoner for a longer or
shorter time, and have detailed facts in regard to his histor3% his
business enterprises and his domestic and financial troubles. 2. The
57
898
INSANITY AT TKIAL OK AFTKK CONVICTION.
United Slali'S v. Laiicaslcf,
testimony of professional men who have given special attention to the
invcstigntion of mental and nervous iliaeases, and who, by reason of
their skill and attainments, are deemed in law qualified to jjive an opin-
ion as experts, or persons of skill upon the (piestion before you.
You have heard from the various witnesses who have known the
defendant, some of them for many years, many facts in regard to his
previous life ; his business, his temperament, and various vicissitudes
and incidents in his career ; Ir.d successes and failures, and the alleged
changes which, it is claimed, Iwivc taken place in him, and from which
you are asked to infer that he has become insane. There are no special
contradictions or discrepancies in this testimoii)'. The witnesses who
have been called on both sides agree in many of the substantial matters
of fact.
It may be considered as conceded that defendant now is about fifty
years of age; that for many years previous to 1S73 lie had been an
extensive and successful operator in real estate, and had accumulated a
large amount of proj)erty, his property being estimated as worth, in
1873, over and above incumbrances, from $150,000 to $250,000; that
he possessed unusual capacity as a l)usiness man — was promjjt and rapid
in his conduct of negotiations and business affairs, and always exhibited
a 'luick and irascible temper and a somewhat imperious, jealous and
exacting dispositign ; that in 1809 he lost his wife, and in 1870 his
children died, and he showed immediately after his bereavment great
grief, and h .d a very demonstrative way of displaying it. Sometime in
the summer of 1873, a Miss Warren, of New York City, brought some
suits against him for the collection of about $12,000, which she claimed
he owed her. He resisted this claim, and insisted that it was prosecuted
for purposes of blackmail, and charged all persons who took part in its
prosecution as conspiring against him. And it seems to have become
an almost fixed habit to indulge in violent denunciations of, and threats
toward, all who had any part in the i)rose(ulion of these suits. His
property has melted away, and he is now impoverished, and instead of
being wealthy, is really a poor man. These facts are admitted, or at
least not disputed.
Other facts which may be said to be proved but are not admitted:
that his mind is engrossed in trifles ; he has become indifferent to busi-
ness ; has acted in a strange and unusual manner; become eccentric
in his conduct; and, although indicted for a grave crime, did not ap-
pear to realize his danger, and made no preparation for his defence, al-
though often urged to do so by his friends. Eminent medical men.
TKIAL OK rUKSKNT I.NS.WnV
8l)I»
Opinions of Mnlical Mm.
from cxarainatioiis and from knowledge of the man, give an opinion, us
a mutter of skill, tlial lie is insane.
From all this group cf facts, you are asked to deduce tiie roncliision
that the priscmer was, at the time of trial, insane, the theory Iteing that
the proof shows that since the deiilh of his children, his mind has heen
giving way, until he is now and was at the time of his trial, actually in-
sane, or so far in tlie incipient stages of insanity as to render him
incapable of properly appreciating and meeting the peril in which lie
was placed.
On the part of the Government it is contended, and supported by the
evidence of eminent medical men, that wiiile they do not deny many of
the facts testilied to, they deny that they necessarily or fairly establish
the allegation of insanity, but insist that all the incidents and facts
stated in the testimony, only show him to be a man of violent passions,
who has given way in latter years to a sort of ungovernnble rage to-
ward those wiio were endeavoring to enforce the collection of a valid
debt from him; tlw-t he was always quick tempered and jealous, and
has oiiiy exhil)ited to an aggravated degree his natural character toward
those whom he disliked, and is simulating or putting on the a[)i)carance of
insanity to avoid sentence.
The real question, as I have before said is, whether the evidence
satisfies you that thi^; man's mind had so far broken down and lost its
texture that he was at the time of his trial incapable of comprehending
the dangerous predicament in which he was placed, and taking intelli-
gent measures to meet it? Did he realize tiie gravity of the offence with
which he was charged, as he would if in the possession of his ordinary
mental faculties? Not that he should have been so much affected by it
as some other men would, if he had been in possession of his ordinary
mental vigor and coherence of ideas.
All the evidence tends to show that he was at one time, and not many
years ago, a man of clear mental perceptions, understood the ordinary
obligations which one man owes to another and to society, and while he
may have been shrewd and sharp at a bargain, and perhaps exac.'ting in
enforcing what he deemed a le<xal or business advantage over those with
whom he was dealing, yet there is no proof but that he recognized the
ordinary moral and legal obligations of business, and was as truthful
and upright as ordinary men in their dealings. And I think it may be
considered as proven, that in the last two or three years, since the loss
of his children, to some extent, and since the commencement of his
troubles with Miss Warren in a more palpable degree, his most intimate
friends have noticed a marked change in his manner, conduct, and habits
of thought.
yuo
INyAMTY AT TlilAL OK AI'IKK CONVICTION.
Ullllfd Sliiti> 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 a<lmi.-4slblo in
evidence on his trial for the offence, as tending to show that he may have been insane
when the offence was committed.
4. Plea of Not Guilty — Evidence.— Under a plea of not guilty, evidence of the pris-
oner's insanity both before and after the commission of the offence is admi.ssible.
Appeal from the Count}- Court of Placer County.
The defendant was indicted for an assault with intent to commit a
rape. The indictment was found December 6th, 18Go. When the case
wa3 called, April 3, 18G6, ui)on a sujigestion that the defendant was
then insane, a special jury was emi)anclled to try that question, who
found the defendant was insane at tlie time. The case was then
postponed. The defendant was afterwards ariaijined for trial in Sep-
tember, 18G6, and convicted. The defendant appealed.
J. Hamilton, for ai)pellant.
J. G. McCulloitgh, Attorney-General, for the People.
Sanderson, J. — As to the grounds upon which it is claimed that the
verdict of the jury, which was called at a previous term of the court to
inquire into the sanity of the prisoner for the purpose of determining
whether his trial upon the indictment ought to proceed at the term or be
postponed, should have been admitted in evidence, the brief of counsel
does not seem to be very explicit ; but as tlioro is some reason for sup-
posing that the verdict was offered for tlie purpose of showing that the
defendant was still insane and therefore that his trial ought to be fur-
910
INSANITY AT TltlAL Olt AFTEIl CONVICTION.
People V. Fiirri'll.
ther postponed, and also for the purpose of showing that he was insane
at the time the supp sed offence was committed, and therefore not guilty,
we shall so assume.
An act done by a person in a state of insanity cannot be punished as
a public offence, nor can a person be tried, adjudged to punishment or
punislied for a public offence wliile insane.' Where a defendant is called
or trial, or brought up for judgment, if there is any reason to suppose
that he is insane, the question must be submitted to a jury, either of tlie
regular panel or of anotlier to l)e summoned for that purpose. ^ If
the jury find the defendant insane the trial or judgment, as the case may
be, must be postponed until he becomes sane.-' To authorize this
proceeding there must be some foundation for supposing that the de-
fendant is insane. Such was not the case here, however, so far as
we can learn from the record. Tlierc was no suggestion to that effect
before tlie trial was commenced, eitlier by counsel for defendant or for
the People. Nor is it suggested that anything occurred subsequent!}-
'jalculated to inspire doubts as to the sanity of the defendant. On the
contrary, tlie record shows that wlien the case was called at a previous
day of the term for the purpose of ascertaining whether it was ready for
trial, and for the purpose of appointing a day for trial, the defendant
and lus counsel being in court, the latter stated that the ph3'sical and
mental cor.^utivin of the defendant had so improved as to justify him in
proceeding to trial at that term, and that the case was accordingly set for
trial. Nothing further seems to have been said or done in relation to the
matter until at the \ rial the verdict in question was offered on behalf of the
defendant. As alrea ly intimated, the views of counsel in this connection
are not very clearly stated in his brief, but from what is said we infer
that he intends to claim that it was error for the court to proceed to the
trial of the case without having first instituted some sort of judicial in-
quiry into the present sanity of the defendant, which would have
resulted in a formal reversal or vacation of the previous judgment of the
court that he was insane ; or in other words that the verdict and judg-
ment of the previous term to the effect that the defendant was then
insane operated as a bar to any further proceedings until formally
vacated upon a further proceeding of some sort confined to the consid-
eration of the same question. If such was the law, the projjcr time to
make the question wns before the trial was commenced. But such is
not the law. The statute requires no such proceeding.
1 Sect. 583 of an act concerning proceed- * Sect. 5S4.
ings in urimiual cases. ^ Sect. 580.
INSAMTV AT TKIAL
911
Ailinis.sitiii of Vonlict on Second Trial.
At the previous term, upon the finding of the jury tliat the defendant
was insane, the court made an order committing liim to the custody of
the officers of tlie insane asylum, pursuant to the i)rovisions of section
five hundred and eighty-nine. It is provided in the five Imndrcd and
ninety-first section that when tlie defendant has I ecome sane tl e person
or persons to -vvliosc custody he may liave been coh^'.iitted sliall ^ive tlie
sheriff and district attorney of tlie proper county notice of the fact, and
that the sheriff shall thereupon proceed, Avithout delay, to talvc him from
the custody of such persons and place him in the proper custody until
lie be brouglit to trial or judgment. Whether tliis course was pursued
in this case the record failed to show, but the presumption is that it was.
But whether it was or not is of no consequence, for in either event the
result would be the same. When a defendant once proved insane is
calleu for trial a second time, if there is any doubt as to his sanity, and
the People demand a trial, the court i)roccc'ds as at first, and trios the
question of sanity anew, and so on to the end, as often as occasion
may require. Of course, at all such trials the question is as to present
insanity of the defendant, and at all trials after the firstthe inquiry may
commence with the proposition that he was insane at tlie time the
former verdict was rendered admitted, for of that the verdict is conclu-
sive, or which amounts to the same thing, the former verdict may be
given in evidence as tending to prove the present insanity, for havinnf
been found insane at the previous trial, the presumption is tlial; he is'
still insane, unless his insanity was accidental or temporary in its nature,
or occasioned by the violence of disease.^
But the verdict was competent evidence upon tlie question whether
the defendant was insane at the time of the comniission of the supposed
offence, especially in view of the statement of counsel, that he proposed
to accompany it with other evidence upon tliat point. In the proof of in-
sanity under a plea of not guilty, though the evidence must relate to the
time of the act in question, yet evidence of insanity before and after
that time is admissible.^ The verdict was conclusive that the defendant
was insane at the time it was rendei-ed, and therefore admissible as tend-
ing to prove that he may have been insane at the time the offence was
committed. The verdict was rendered some time after the act was
committed, it is true, and may not have been entitled to much weight as
evidence ; but that is a different question, and no rule can fix, with
precision, the limits of time within which evidence of subsequent insan-
ity on the score of competency shall lie received and beyond which it
1 1 Greenl. on Ev., sect. 42.
• 2 Greenl. on K?., sect. 690.
:a2
INSAMTY AT TUIAL OK AITKU COXVK TION.
(iiiiliiT V. Slate
ahall be rejected. It appears from the testimony in the case that the de-
fendant is liable to spells of insiinity of greater or loss duiation vrhen
under the influence of unusual excitement, arising from injuries to his
head, sustained while serving in the army. To prove this condition
was to give evidence tending to prove insanity at the time alleged, or at
any given time, and for tiie pur[)ose of proving that condition it was
competent to pi-ove periods of insanity at dales remote from each other
and from the particular date in (luestion. Where the insanity sought to
be proven is of a temporary character or interrupted l)y lucid intervals,
which is apt to be the case where it results from jjcrsonal injuries acted
upon by casual and exciting causes, a wider range on the score of time
should be allowed to the testimony than in cases where the insanity is
of a more contiinious and permanent c" aracter, and therefore its pe-
riods of commencement and termination more clearly dclined and readily
ascertained. But from the nature of the case no fixed rules as to the
period of time over which an inciuiry of this character should be ex-
tended, can be established, and hence the particular conditions of each
case must be allowed to iix the limits. To allow a wide range is cer-
tainl}' in keeping with tlie humanity of the law, which always prefers the
escape of the guilty to the i)unishmentof the innocent.
[Omitting a ruling on another ciuestion.]
Judgment reversed and new tried ordered.
INSANITY AT TRIAL — EFFECT OF DISCHARGING JURY — " ONCE IN
JEOPARDY."
(iRURER V. State.
[;i W. Va. (J'Jti.]
In the Court of Appeals of West Virginia, January Term, 1869.
lion. Jamks II. Brown, President,
" Ei>wi\ 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, an<l if the
prisoner pleads to the indictment, the omission of tiie court to institute the
preliminary inquiry cannot be assigned as error, though from the facts as set
ouc in the record, there may be strong grounds for the belief that the prisoner
was insane at the time of the trial. *
When the judge is satisfied that the plea of insanity at trial is false lie may
iironounce sentence without empanelling a jury to try the issue. ■'
In Texas when an affidavit is made by a fespectable person that the prisoner
has become insane, a jury must l)e empanelled to try tliis issue, and this, though
the party making the affidavit is unknown to those in court.* And it is error
not to do so, which is not cured by trying the plea of insanity after trial and
conviction.
Tli'i laws of Iowa provide that when a prisoner appears for arrangement, trial,
jadgment, or any other occasion, when required, if a reasoiial>le 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 <Tror: .•vhl.'ii(;c not ciimiilalivr. p. ,s(;;i.
AtllUavit of (IcfciKliinl for coiiIIiiiiiukc not iiiliiiis^il)|r on trial, j). s7i,
(.'UNTINrANCK ri|" SAMTV nl{ INSAMIV
.S>«' 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<l
deliberate intent to kill, he cannot be guilty of murder in the first di-
gree. But where drunkenness does not exist to this extent, the jury
may consider it with all the other facts to see (1) whether the purpose
to kill was formed in passion produced by a cause operating upon a
mind excited by liquor — not such adequate provocation as to reduce
the crime to manslaughter, — but it may reduce it to murder in the
second degree; (2) whether the purpose was formed with deliberation
and premeditation, for a drunken man may be guilty of mui'der in tlie
first degree. Gartioriyht v. State (Tonn.), p. (i52.
Upon a trial for murder in the first degree or an assault with intent to
commit murder in the first degree, drunkenness to any extent is rele-
vant. Though it may not i)e so excessive as to render the prisoner
incapable of deliberating, yet it may have excited him and produced a
state of mind unfavorable to premeditation and deliberation. Lancat^ter
V. State (Tenn.), p. (J58.
Where a murder is done by some kind of wilful, deliberate and premedi-
tated killing other than by means of poison or lying in wait, the degree
of the offence is not lessened by proof that at the time it was com-
INDEX.
931
)(i sliowu.
prisoiur's
I proof of
m passion
8 is niaii-
t iutoxicii-
he heat of
e prisoner
:'.),p. (;24.
1 of power
prevent ti
l), p. (]S«.
kenness of
y cue ^\^]u>
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>. <i<!0.
Under a statute establishing degrees of the crime of murder, and providing
that wilful, deliberate, malicious and premeditated killing shall be
murder in the first degree, evidence that the accused was intoxicated
at the time of the killing is competent for the consideration of tlie jury
upon the question whether he was in such a condition of uund as to i)e
capable of premeditation. Hoyt v. People (U. S.), p. Cdl.
A person who designing a honucide drinks to excess, and 'then eonnnits it,
is guilty of murder. But drunkenness brought on by sensual or social
gratification with no criminal intent may reduce an unprovoked homi-
cide from murder to manslaughter. Smith v. Com. (Ky.), p. Od!).
Drunkenness may, under peculiar circumstances repelling malice, reduce
the grade of the crime from murder to manslaughter. Blimm v. Com.
(Ky.), p. (uo.
Deliberation as affected by drunkenness. Warren v. Com. (Pa.), p. SOU.
DKLAWAHE.
Test in, p. I'SI
Burden on Prisoner, p. 514.
DI'lLIBERATION.
.S'ee Dkgreks ok C)umk.
DELIKIUM tremens;.
See, also, Drixkknxess.
If a person suffering under delirium tremens, is so far insane as not to
know the nature of his act, etc., he is not punishable. U. S. v. McGlue
(U. S.), p. 55.
Voluntary intoxication does not excuse or palliate a crime, tlirough insan-
ity —mania a potu or delirium tremens may. Carter v. .state (Tex.),
p. 588.
Delirium tremens is a species of insanity. Erioin v. .State (Tex.), p. 845.
Delirium tremens is usually the result of a disuse of intoxicants by an
habitual drunkard, but it may ensue from casual drunkenness. Id.
DELUSIONS.
One who commits a crime under the influence of an insane delusion is pun-
ishable, if he knew at the time that he was actiug contrary to law.
State V. Metoherter (la.), p. 102.
Notwithstanding a i)arty accused did an act which was in itself criminal,
under the intluence of insane delusion, with a view of redressing or
revenging some supposed grievance or injni-y, or of producing some
public benefit, he is nevertheless punishable if he knew at the time lie
was acting contrary to law. McNanhten's Case (Eng.), p. 150.
A party laboring under a partial delusion must be considered in the same
1)32
INDKX.
DKLUSK >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 <m reasonin.ix and reliectioii are not insane (h-
lusions nor within the law regarding them. Id.
The court instructed the jury: "If the defendant has an insiine delusion
upon any one subject, l)ut connnits crime upon some other matter not
connected witli that particular delusion, lie is equally guilty as if he hail
no delusion, and was iterfcctly sane." Held, proper. tState v. Gut
(Minn.), p. 18'J.
The law as to insane delusions, p. ','>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. 7<!5.
Effect of drunkenness on confessions, p. 7ti5.
Relevant on question of knowledge, p. 7(15.
Relevant to explain threats, p. 7(!i!, 87-1.
Relevant on question of provocation, p. 707.
Relevant on question of self-defence, p. 7(!7.
Drunkenness created by third party to cau.se crime, p. 7(J8.
ECCENTRICITIES.
Evidence not offered to prove insanity, l)ut solely as bearing on the ques-
tion of intent, deliberation, and premeditation, that the conduct of the
prisoner prior to the homicide was characterized by eccentricities and
peculiarities causing criticism with reference to his mental capacity, is
inadmissible. Sindram v. People (N. Y.), p. 802.
ELECTIONS.
See Intent.
ENGLAND.
Test of insanity in, p. 210-231.
Burden of proof on prisoner, p. 522.
EROTOMANIA.
Irrelevant on charge of murdering a man, p. 782.
ERSKINE.
His argument in Hadfleld's Case, p. 201.
EVIDENCE.
See Relatives, Insanity in; Prior Insanity; Experts; Acts and Con-
duct; Husband AM) Wife; Deci,ar.vtion's.
Irrelevant, confusing, or misleading questions based on the defence of In-
sanity, should not be permitted. Dejarnette v. Com. (Va.),p. 18.
A jury is not authorized to tind a prisoner insane because some cause existed
Avhich might tend to produce Insanity. Sawyer v. State (Ind.), p. 7!}0.
EXCITEMENT.
See, also, Adultery.
Insanity, when pleaded in defence of a criminal act, such as homicide, must
be clearly sliown to have existed at the time of the commission of the
act. Therefore, evidence of a witness to show a state of mental excite-
ment in the accused, produced by the insulting (language and threats
used towards him by the deceased, his wife's paramour, at the time of
the killing, is not admissible to show insanity. State v. Graviotte (La.),
p. 785.
EXPERTS.
See, also. New Trial.
Proper form of questions to, p. 2().
!t;;i;
INDKX.
KWEHTH — Continued.
Kxpcrts arc not allowed to ifivt- tiu'ir oiMiiions on tin' lahU', whore its fuels
are eontrovcrtcd: l)iit counsel may pnttothein a state of facts, and ask
their opinions tliereon. ^'. ,S'. v. MrAilue (!'. S.), p. iH.
Medical witnesses who have no i)ersonal l<nowle(l;;e of the i)rlsoner cannot
l)e allowed to give an opinion formed from the testimony in the case,
and his condnct on the trial, as to his sanity at the time of the act-
State V. Felter (la.), p. D-'.
Books of science are not adniissil)le in evidence, limdley v. Slate (.Ind.),
p. 115.
The evidence of an expert should not l)e discredited merely becau.se he ex-
pects to have his expen.ses paid by the party calling liim. Id.
Where an accused person is supi)osed to be insane, a medical man, wlio lias
been present in court and heard tlie evidence, may be asked, as a mat-
ter of science, wliether the facts stated by the witnesses, supposing
them to be true, show a state of mind incapable of distingnishing be-
tween right and wnmg. McNagliteiCs (Jane (Kng.), p. 150.
i'he opinions of medical men on the state of ndnd of the prisoner are ad-
m'ssible, thongh they liave not personally examined him. Com. v,
h'->i ■ -> (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 <lof<'iH-(' clfarly ri'c-
oirnized in tlio clmrge of tlic court. I'euplK v. Cummins (Midi.), p.
(Mo.
On a trial f<<r tlicft tlu- (lefence being tlie propensity to sti'all<no\vn as lilep-
tomania, and tliere being evidence tending sustain to it, tlie court
should charge tlie jury speclllcally on this point. A submission of the
usual tost of the prl.soner's ability to distiiiguisli between right and
wrong is insuHlcieiit. Louney v. iState (Tex.), p. 7(;!i.
It is proper for tlie court to direct the attention of tiie jury to the defence
of insanity, and Instruct them that it siiouid lie carefully and intelli-
gently scrutinized. Sawyer v. iState (Ind.), p. 7'.»0; and .seep. 8()7.
Oil a trial for murder certain letters written by the prisoner after tlie lioni-
icide were introduced in evidence, in commenting upon which in his
charge the court .said : "They exhibit a reckless de|)ravlty of nature,
destitute of remorse or regret, the reckless spirit of a des|)erado."
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 tliese letters exhibited a "liigh order of intel-
ligence," but afterwards withdrew the words " high order of." Held,
no error. Sindram v. People (N. Y.), p. 802.
Where the court instructs the jury on the general issue of guilt that the
prisoner is entitled to the benetlt of any reasonable doubt, it is not error
to refuse to charge as to reasonable doubt specially with regard to tiie
issue of his sanity. Webb v. State (Tex.), p. 835.
The defence being delirium tremens, and there being evidence tending to
establish it, the court should charge specially the principles of law
applicable to this defence. Irwin v. State (Tex.), p. 845.
However slightly the evidence may tend to establish a defence, the court
should charge the law applicable to that defence. Id.
Judge need not specially detiue the various types of insanity, p. 8<!(!.
Duty to instruct on insanity plea, p. 867.
INTENT.
On a trial for assault with intent to commit rape, if the j)risoner was so
drunk as to be incapable of forming an intent to ravish, he should be
acquitted. State v Donovan (la.), p. i!78.
One wrongfully taking the property of anotlier, but too drunk to entertain
a felonious intent, cannot be convicted of larceny. Wood v. Statf
(Ark.), p. {i80.
In a prosecution for breaking and entering a dwelling house with intent to
commit larceny, the drunkenness of the |)risoner at the time is admissi-
ble in evidence on the question of Intent. State v. Bell (la.), p. (182.
Drunkenness cannot excuse or justify crime, but It may be shown in order
to determine whether any crime or a particular crime has been com-
mitted at all. Scott V. State (Tex.), p. liS<>.
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<ill Ijy tiie intiaiis used Ids
voluntary intoxication will l)e no protection, althouiih ids mental facul-
ties were tiiereby so obscured as to malie him incapable of jnd<|in<; be-
tween right and wrong, hi.
A person cannot Ik; guilty of larceny whose ndnd cannot comi)rehend all the
essential ingredients of tlie offence, and recognize tiieir existence.
Therefore an instruction that one who knows he has been taking proi)-
erty not his own is sane enough to commit the crime of larceny is error.
People V. C'ommiiis (Mich.), p. Wo.
It is no defeniu; to an indictment for illegally voting more tlian once at tlie
same election that tlie (irisoner was so drunk when he gave his second
vote that he did not know what lie was doing and did not know that he
had alreatly voted. Stute v. IVelcli (Minn.), p. i;!)7.
The act of voting more than once at the same election is not a crime unless
done knowingly and with wrong intent. Tlierefore a person charged
with this crime may show that he was intoxicated at the time he (!om-
mitted the act, not as an excuse for the crime, but to enable the jury
to determine whether his mental condition was such tliat lie knew lie
was committing an ofiEence. People v. Harris (Cal.), (). 701.
Mere intoxication is no extenuation or excuse for crime ; but it may be con-
sidered by the jury upon the (luestion of intent or malice. Kelly v.
State (Miss.), p. 70(>.
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 l<nc\v tiie l)ill to l)e counterfeit. Pi<imnn v. State (().), p. I'JO.
LAUCENY.
.S'ec Intk.nt; C^ArAciTY ro (^)M.\iir Crimk.
L.VW AND FACT.
Insanity a questiou of fact for jury, p. HM.
Finding of jury conclusive, p. H\',H.
LOUISIANA.
Burden of proof on prisoner, p. 517.
MAINE.
Test in, p. '2ii2.
Burden on prisoner, p. i)\7.
MALICE.
On the question of malice, evidence of the prisoner's intoxication is ailinis-
siblf. ShannahaJi v. Com. (Ky.), p. 557.
Intoxication does not necessarily disprove the existence of malice in the
commission of a criminal act. State v. Johnson (Conn.), p. OO'J.
C;i an indictment for murder in the first degree, which by statute requires
the existence of actual malice, tlie fact that the prisoner was intoxi-
cated at tl'c time is to be considered as tending to prove that such
malice did not exist. Id.
In murder in the second degree, whicli rests upon Implied malice, the jury
may find the existence of malice, although the prisoner's condition at
the time of tlie crime disproves express malice. Id.
On an indictment for maliciously stabbing with intent to kill, it was in
evidence tliat the prisoner was intoxicated at the time of the act. The
judge refused to charge the jury that intoxication " is a circumstance
proper to be taken into consideration by them, and should have its
just weight in determining tlie malicious intent." IMd, not error.
Nichols v. State (O.), p. ()(!7.
MASS.VCHUSICTTS.
Test in, p. 2!52.
Burden on prisoner, p. 517.
MICHIGAN.
Test in, p. 233.
Moral insanity disapproved, p. 300.
Burden on State, p. 527.
MINNESOTA.
Test in, p. 233.
Burden on pri.soner, p. 518.
FNDKX,
•.•41
•MISSISSIl'lM.
Test in, p. :.';)!!.
Uiirdt'ii on State, |). yjl .
MISSOUKF.
Test in, p. l'a;i.
Burden on prisoner, p. oIH,
MORAL INHAMTV.
See, iilsd, Insank oi{ Uncon i uor.i.Aiti.K I.mimi.sk.
A person wlio is possessed of a sound mind is liable for a rriiiiiiial net,
though committed under tiie impulse of passion or revenge which may
temporarily dethrone reason and control the will, StntP v >stifkl<''/
(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. St<ii^
(Ala.), p. ;i5i'.
Mental or moral insanity, however recent, to such an extent as to destroy
free agency or moral responsibility, on boiTif: establlshetl by satisfac-
tory evidence, will excuse. Krielw Com .' k; .), ;!7!i.
Moral insanity criticised, Coyle v. Com. (I'a.), p. 441; Cnnninghmn v.
State (Miss), p. 4 7(i.
Moral insanity or irresponsibility for crime from inability to control the
will from the hatiit of indulgence, has no foundation in the law.
Choicvw State (Ga.), 5;]!».
Moral insanity is now as well understood and established as intellectual in-
sanity. Smith V. Com. (Ivy.), j). 070.
MOTIX'K.
Si'f I'HKSlMI'riON.
J»42
INUKX.
NKBKASKA.
Tost in, )).1.';;4.
Hiirdt-n on Stat*-, p. :yJ7.
NKW HAMrSIIIHK.
No tost in, p. ;UI .
Burden in State, j). .")L'7.
.\i;VV JICUSKV,
'IVst in, p. 2;U.
Biinlen on i'risoncr, p, .IN.
NKW YORK.
Test in, p. 2;U.
Bunlcnon prosecution, i). J2!i.
NEW TRIAL.
See, also, Nkwly Discuvkkkd Kvii>i: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. 8<!0.
SLEEPLESSNESS.
Sleeplessness and nervous restlessness are relevant on the (|uestion of in-
sanity velnoH. Bosicell v. State (Ala.), p. o52.
SOMNAMBULISM.
F. and W. entered togetlier at night a public room of a hotel, sat down and
went to sleep. W. awoke .shortly after and called to S., one of tlie por-
ters, for a bed for himself and F. W. then attempted to awalien F. by
slialcing him, but failinjr, asked S. to wake him up. S. thereupon shook
F. with great force and succeeded in awakening him. While S. was
holding him by the coat collar, and telling him to go to bed, F. drew a
pistol from his jiocket and shot S., killing him. F. then went out of the
room with the pistol in his hand, his manner being that of a frightened
man, saying that he had shot some one but did not know whom. F.
«lid not know nor liad he ever seen S. before. On his trial for the niur-
INDEX.
1>47
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<r
^oeffner v. State
(loiiitf tlie act
h affection was
t have done it,
•filing between
i person from
)ulse to do tlie
ised of ability
nsible for tlie
r
scernment ta
sciousness of
5 (Tenn.), p.
and Avrong of
:;Ga.), p. o3!t.
t and wrong,
prisoner was
le particular
State (Tex.)>
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.
<tl2.
Insane person cannot be tried, p. 910.
Nor can intoxicated person, p. i)18.
UNCONTROLLABLE IMPULSE.
See INSANK Impulse.
UNITED STATES.
Tests in Courts of, p. 270.
VERDICT, INSANITY AFTER.
If after verdict, but before sentence, a prisoner becomes insane, it is good
ground for staying the sentence ; aliter where the insanity is the same
as has been passed on by the jury. State v. Brinyea (Ala.), p. 349.
Where the jury have found that the prisoner was not insane at the time of
the act, and after verdict present insanity is alleged, the trial of this
plea by a jury is not of right, but rests in the discretion of the court..
Laros v. Com. (Pa.), p. 824.
I.VDKX.
!»:.,">
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