responsible insane person may know those things, but was the act done as the result of an insane delusion, or was it committed under an influence or power which the accused could not resist by reason of his unsoundness of mind?

2. Although the accused may have known what he was doing, and that what he was doing was contrary to the law of the land, yet if, when he performed the act, he really believed that he was thereby producing a public benefit, and was actuated by an insane delusion that he was carrying out an inspiration of divine origin or approval, and would not have done the act but for such insane delusion, then the accused is not guilty of the crime charged against him, and the jury should find him "not guilty, by reason of insanity."

3. Insanity constitutes a defense if, by reason of it, the accused, at the time of committing the act charged, did not know what he was doing; or, if he did not know that what he was doing was contrary to law; or, if the act would not have been done by him but for reason of the insanity.

4. The only evidence in the present case tending to show an irresistible impulse to commit the homicide, or that the accused acted under the pressure of an insane delusion in doing the act, is found in the conduct and words of the accused as detailed in evidence. The question whether the free agency of the accused was destroyed by a conviction on his part that the death of the President was required for the good of the American people, and that he was divinely inspired to remove him by death, is one of fact to be determined by the jury from all the evidence in the case, and such evidence includes the acts as well as the words of the accused. But such conviction, if it really existed, could not afford any excuse when the party knew what he was doing, and that it was contrary to law, unless it was the product of an insane delusion, and he was impelled to do the act by such delusion. Such delusion may exist as to a divine requirement, or as to an inspiration from God. No mere delusion, unless it be the product of an unsound mind, nor error of judgment, nor even the fixed belief that what is prohibited by the law is commanded or approved by divine authority, can exempt the accused from responsibility for breaking the law, if at the time he knew what he was doing and that it was contrary to law, and he was not acting under an insane delusion. To have such effect, the committing of the act charged must have been the result of an insane delusion of such force as to deprive the accused of the degree of reason necessary to distinguish between right and wrong in respect of the act, as sane people generally judge of such conduct. The delusion must have been such that at the time of committing the act he either did not know what he was doing, or, if he did, he must have acted under a controlling conviction that the act was right. Although he may have known that the act was contrary to the law of the land, yet if he did it under the insane delusion that it was commanded to be done by God, such knowledge on his part would not make him liable to punishment.

5. Whether insanity exists or has existed at any time with the prisoner, and the degree of insanity, if any existed or has existed, are questions of fact to be determined entirely by the jury from the evidence.

6. If the jury find from the evidence that the prisoner was of unsound mind at the time of the doing of the act charged against him as criminal in this case, then it is also the duty of the jury to find whether said act was the result of such unsoundness of mind of the prisoner.

7. The punishments of the law are intended for rational persons, and no one but a rational person can commit the crime of murder.

8. Insanity may be interposed as a legal defense in any prosecution for an otherwise criminal act, and, it such defense be established by the evidence, it takes away the criminality, and the act ceases to be a crime in contemplation of law.

9. If the jury have a reasonable doubt as to the san

ity of the accused at the time of committing the act charged against him as a crime, they should give him the benefit of that doubt, and should find him not guilty, by reason of insanity."

10. The jury are the sole judges of the credibility of witnesses, and have a right to take into account, in weighing the evidence, any apparent feeling or interest manifested by witnesses on the stand, their manner of testifying, their compensation or want of compensa tion, and any other circumstances connected with their testimony which the jury may think would influence them.

11. If the jury believe, from the evidence, that the prosecution have willfully suppressed evidence of the mental condition of the accused during two weeks next following the shooting of President Garfield, which it was in their power to have produced on the trial, the jury have a right to take that fact into consideration, as raising a presumption that such evidence, if produced, would have been unfavorable for the prosecu

tion.

12. If the jury shall believe, from the evidence, that the prisoner was of sound mind, or not so insane as to be irresponsible for the act, at the time of shooting at the President, on the 2d day of July, 1881, and that he then unlawfully and willfully, but without malice in fact, in the District of Columbia, shot at and thereby injured the President, of which shooting and injury the person so injured subsequently died in the State of New Jersey, and within the United States, then the prisoner is guilty of the crime of manslaughter, and the jury should so find.

13. The jury are instructed to find a separate verdict upon each count in the indictment, and, inasmuch as it is charged in the first, second, fourth, fifth, seventh, and eighth counts of the indictment in this case, that the death of the President took place in the county of Washington, in the said District of Columbia, and there is no evidence of such fact, therefore the jury are directed to find the accused not guilty upon each of said counts, separately.

14. Inasmuch as the evidence is uncontradicted in this case that the wound was inflicted upon the President by the accused, on the 2d day of July, A. D. 1881, in the county of Washington, in the District of Columbia, and that the President subsequently, and in the month of September, A. D. 1881, died of such wound in the State of New Jersey, the jury are instructed that, by reason of these facts, the accused is not guilty of the crime of murder charged in the indictment, and the verdict must be "not guilty," unless the jury shall find him guilty of manslaughter, as charged in the twelfth prayer of the defense.

Arguments to the court on these points were made by Messrs. Davidge, Corkhill, and Porter for the prosecution, and Reed and Scoville for the defense, accompanied by some sharp criticisms on each side with reference to the conduct of counsel on the other. The District Attorney took occasion in his argument to examine the question of jurisdiction. On the 10th of January, after the close of the arguments, Judge Cox proceeded to state his views on the prayers submitted on both sides-first giving his attention to the question of jurisdiction. He said that at an early stage in the case he had expressed a preference to hear that question discussed in a preliminary form by way of demurrer, or motion, or plea, because a determination of it adversely to the jurisdiction would have spared all the labor and trouble of the trial. Counsel, however, had the privilege of making the question at any stage of the case. The jurisdiction of the court had been publicly discussed and seriously

challenged, and he had felt it incumbent on him not to ignore a question so vital to the rights of the accused. He had deemed it his duty, therefore, to investigate the question thoroughly. After a very exhaustive review of the English and American authorities, he expressed his conviction that the English authority was decidedly in favor of jurisdiction where the blow had taken place, and that in this country there was a strong array of authority in the same direction. He felt at liberty to adopt and announce the doctrine (which conformed to common sense), that the jurisdiction was complete where the fatal wound had been inflicted, and that, therefore, the place of death was immaterial. Consequently, it would be improper to grant the thirteenth instruction prayed for by the defense, because the offense charged might be tried and conviction might follow under those counts of the indictment which averred the death to have occurred in the District of CoJumbia. For the same reason the fourteenth instruction relating to jurisdiction had to be denied. When it became his duty to charge the jury in the case, it would be his effort to expand and illustrate so much of those instructions as he considered correct; but, for the present, he merely desired to express his opinion sufficiently to guide the counsel in their arguments to the jury. He then proceeded to consider the first and second prayers of the prosecution in connection with the third, fifth, sixth, and eighth prayers of the defense.

The first instruction asked for by the prosecution-namely, that "the legal test of responsibility where insanity is set up as defense for alleged crime, is whether the accused at the time of committing the act charged knew the difference between right and wrong in respect of such act"-he regarded as correct. He reviewed at great length the questions involved in the McNaughton case, and quoted from testimony given by Lord Justice Fitz James Stephen before a parliamentary committee which had before it, in 1874, a bill to define the law of insanity. He referred to this, he said, simply to show that the answers of the judges in the McNaughton case had not since been regarded as clearly establishing the proposition that a mere capacity to know the law of the land subjected persons to criminal responsibility. Since the McNaughton case a number of homicide cases had been tried at nisi prius in England, and he had not been able to find one in which a knowledge of the law of the land had been laid down as a test. In the United States there were numerous cases that applied to a knowledge of right and wrong in regard to the particular case, but the instructions had been in the most vague and general terms. He would therefore state his own views, which he did as follows:

To a sane man an act, whether morally wrong or not, is wrong if it is in violation of the law of the land. It can not be right for him, although he may think

that independently of the law it would be. It can not be right for him, although he may think it is right commit it in violation of the law. But, while a sane notwithstanding the law, and that he may rightfully man is responsible for opinions contrary to law if carried out in practice, an insane man is not held to the same responsibility. He may know the law of the land, but in his delusions he may insanely believe that it is not the law for him, but that he is acting under a higher authority which supersedes it. If, therefore, I am to rule upon this proposition as presented, I grant it only with a qualification, and I give as a substitute therefor my own (marked No. 1), as follows:

No. 1. The legal test of responsibility where insanity is set up as a defense for alleged crime is whether the accused at the time of committing the act charged knew the difference between right and wrong in respect of such act. Hence, in the present case, if the jury find that the accused committed the act charged in the indictment, and at the time of the commission of his crime knew what he was doing, and that what he was doing was contrary to the law of the land, he is responsible; unless, in consequence of insane menlaboring under such defect of reason as to be incapatal delusions or other form of mental disorder, he was ble of understanding the obligation of the law of the land and the duty and necessity of obedience to it, and of understanding that his act was wrong because it was in violation of the law.

I have prepared instruction No. 2, which embodies all that I think is correct in the remaining instructions asked for by the Government, and in the first four instructions asked for by the defense. It is as

follows:

No. 2. If the jury find that the defendant committed the act charged, and at the time thereof knew what he was doing, and that what he was doing was contrary to the law of the land, it constitutes no excuse, really believed that he was producing a great public even if it is true, that when he committed the act he

benefit, and that the death of the President was required for the good of the American people; nor would such excuse be afforded by the fact that in the commission of the act he was controlled by a depraved moral sense, whether innate or acquired, or by evil passions or indifference to moral obligations. And even if the jury find that the defendant, as a result of his own reasoning and reflection, arrived at the determination to kill the President, and as a further result of his own reasoning and reflection believed that his said purpose was approved, or suggested, or inspired by the Deity, such belief would afford no excuse. But it would be different, and he would not be responsible criminally, if the act was done under the influence and as the product of an insane mental delusion that the Deity had commanded him to do the act, which had taken possession of his mind not as a result of his own reflections, but independently of his own will and reason, and with such force as to deprive him of the degree of reason necessary to distinguish between right and wrong as to the particular In such case, even if he knew that the act was a violation of the law of the land, he would not be responsible if his reason was so perverted by the insanity that he was incapable of understanding the obligation of the law of the land, and that the act was wrong under the obligation of that law and wrong in

act.

itself.

Judge Cox continued as follows:

In this connection I add the words "wrong in itself," because I can conceive a case in which one might believe, insanely, that the law of the land provided no punishment for murder, and yet the person might be perfectly aware of the moral enormity of the crime. I would be unwilling to pronounce such a person irresponsible.

I have omitted from this instruction one important feature of that asked for on the part of the defense.

It is expressed in the first sentence of the first prayer, in these words: "Or was it committed under an influence or power which the accused could not resist by reason of his unsoundness of mind?" It can not be denied that some of the most respectable courts in this country have recognized it as possible that a man may be driven against his own will to the commission of an act which he knows to be wrong by an insane, irrepressible impulse within him, overriding his own will and conscience; and those courts maintain that, as under such circumstances the will to do wrong (which is the very essence of criminality) is wanting, he ought not to be held criminally responsible. They, therefore, hold that the test of the knowledge of right or wrong ought to be qualified by the further condition whether the person had the power to choose between doing or not doing the act. The question is a dangerous one alike for courts and juries to handle, and I do not intend to express an opinion upon it, further than the facts of the case require. Those facts seem to relieve me from the necessity and the responsibility of discussing it generally. If we struck out of this case all the declarations and testimony of the defendant himself, we have no light whatever on this subject. There are circumstances, such as his actions and conduct, which, his counsel may argue, of themselves indicated some aberration, and are corroborative of and explained by his testimony. But of themselves they would have afforded no indication of the particular motive or special form of delusion that actuated him. Of this we have no indications except in the declarations, oral or written, of the defendant himself. But he has never claimed that he was irresistibly impelled to do an act which he knew to be wrong. On the contrary, he always claimed that it was right. He justified it at the time, and afterward, in his papers, as a political necessity and an act of patriotism, and whether he claimed inspiration early or late, he has claimed that the act was inspired, and therefore right. He has used the words pressure " and "inspiration" interchangeably, as it were, to express the idea. This has no meaning unless it be that he was under an insane delusion that the Deity had inspired and commanded the act. He has certainly not separated the idea of pressure and impulse from the conviction of inspiration and right and duty.

The defendant has asserted no form of insanity which does not involve the conviction that the act was right, and I feel sure that I am not transcending the privilege of the court when I say that there is no evidence in the case outside of his own declaration tending to prove irresistible impulse as a thing by itself and separate from this alleged delusion. Therefore, the case does not seem to me to present or call for any ruling on the hypothesis of an irresistible impulse to do what the accused knew to be wrong and what was against his will. Whether there is such a thing as irresistible insane impulse to commit crime, and whether it has existed in any particular case, are questions of fact and not of law. In this case, I think, there is no testimony showing that it can exist by itself as an independent form of insanity, but rather the contrary. There is, however, testimony tending to show that such impulses result from and are associated with insane delusions, and especially with an insane delusion as that the party has received a command from the Deity to do an act. But if such an insane delusion exists, so as to destroy the perceptions of right and wrong as to the act (which is substantially the defendant's claim), this of itself is irresponsible insanity, and there is no need to consider the subject of impulses resulting from the delusion. On the other hand, if there were no insanity, but a mere fanatical opinion or belief, the only impulse that could have actuated the defendant must have been a sane onesuch a one as, in the most favorable view of it, a mistaken sense of duty-which impulse the law requires him to resist and control.

In connection with the medical testimony tending

to show that these impulses are always or generally associated with some insane delusion, if there are facts tending directly to show the existence or absence of an irresistible impulse, they may perhaps furnish some evidence of the existence or absence of insane delusion. But I think, in view of the undisputed features of this case, it would only confuse and perhaps mislead the jury to give them any instruction directly upon the subject of irresistible impulse, and that this particular case does not call for any qualification for the general rule adopted, as I have mentioned, as the test of responsibility.

The twelfth instruction is drawn with reference to section 5342 of the Revised Statutes. I do not understand that statute to create any new species of manslaughter. It uses the common-law definitions of both murder and manslaughter, and (perhaps in view of the doubts I have already spoken of) applies them to two cases where the mortal wound was inflicted in one jurisdiction and the death occurred in another. The terms "malice" and "maliciously," used in the statute, would have no meaning except by reference to the common law. We know that the term “malice," in the definition of murder, does not require that proof shall be given of any special hatred or ill-will to the deceased, but that the deliberate intent to kill, from whatever motive, constitutes all the malice that the law requires to be shown, and that the term "without malice" in the definition of manslaughter means simply without premeditated intent, as where the killing occurs in the heat of passion or sudden quarrel. All this I will explain to the jury when it becomes necessary to charge them. But the instruction-in its use of the phrase "without malice in fact "-might convey the idea to the jury that if the killing was done from the motives declared by the prisoner, and if he had, as he says, no personal ill-will toward the President, it was not murder. It is objectionable on this ground, and every object that could be properly sought under this head will be attained by the explanations which I have indicated to be made to the jury. It becomes important, in the first place, to settle the rules of evidence by which the jury is to be guided in weighing the proofs.

In reference to the question on whom rests the burden of proof where insanity is relied on as a defense, three different and conflicting views have been held by three different courts. According to one view it is incumbent on the accused to establish the fact of his insanity at the time of commission of the alleged crime by evidence so conclusive as to exclude all reasonable doubt of it. But this view derives so little support from authority that it may be passed over without comment as inadmissible. Another view is that the defense of insanity is an affirmative one, which the party asserting it must establish to the satisfaction of the jury by at least a preponderance of evidence. That is to say, the evidence in favor of it need not be so conclusive as to leave no room for reasonable doubt, but it must have more weight with the jury than the evidence against, so that they would feel justified in finding the fact as they would find any fact in a civil suit, in which all questions of fact are decided according to the weight of the evidence. Still another view is that the sanity of the accused is just as much a part of the case of the prosecution as the homicide itself, and just as much an element in the crime of murder, the only difference being that as the law presumes every one to be sane, it is not necessary for the Government to produce affirmative evidence of the sanity, but that if the jury have a reasonable doubt of the sanity they are just as much bound to acquit as if they entertained a reasonable doubt of the commission of the homicide by the accused. After a careful examination of the authorities, some of which are mere dicta, and others not well considered or even consistent statements of opinions, I am satisfied that the best reasons and most weighty of them sustain the views which I now proceed to state. I have examined all the authorities with great care over and over again.

three days. It was devoted largely to portraying and denouncing with scathing invective the character of the accused as revealed by the evidence, and demolishing the defense of insanity. It described the prisoner as a monster of iniquity, animated by selfish motives and vengeful feelings, presuming at first on the protection of a political faction to be benefited by his deed, whose moral standard he assumed to be as low as his own, and resorting when this dependence failed to a pretense of divine inspiration and irresistible pressure. The address was frequently interrupted by the most bitter and violent interjections from the prisoner, and occasionally by heated objections from the counsel for the defense, who claimed that the speaker went beyond the evidence. The only check which the court found occasion to administer was to prevent a reference to expressions of public opinion, intended to counteract the prisoner's often reiterated assertion that the American people sympathized with him, and demanded his acquittal.

Immediately upon the close of Mr. Porter's address, at 3.15 P. M., on January 25, 1882, Judge Cox delivered his charge to the jury. After speaking of the rights which were guaranteed to accused persons, he proceeded:

Every accused person, he said, was presumed to be innocent until the accusation was proved. With what difficulty and trouble the law had been administered in the present case, the jurors had been daily witnesses. It was, however, a consolation to think that not one of those sacred guarantees of the Constitution had been violated in the person of the accused. At last the long chapter of proof was ended, the task of the advocate was done, and it now rested with the jury to determine the issue between public justice and the prisoner at the bar. No one could feel more keenly than himself the great responsibility of his duties, and he felt that he could only discharge them by close adherence to the law, as laid down by its highest authorities. Before proceeding further, he wished to notice an incident which had taken place pending the recent argument. The prisoner had frequently taken occasion to proclaim that public opinion, as evidenced by the press and correspondence, was in his favor. Those déclarations could not have been prevented, except by the process of gagging the prisoner. Any suggestion that the jury could be influenced by such lawless clattering of the prisoner would have seemed to him absurd, and he should have felt that he was insulting the intelligence of the jury, if he had warned them not to regard it. Counsel for the prosecution had felt it necessary, however, in the final argument, to interpose a contradiction to such statements, and an exception had been taken on the part of the accused to the form in which that effort was made. For the sole purpose of purging the record of any objectionable matter, he should simply say that anything which had been said on either side in reference to public excitement or to newspaper opinion was not to be regarded by the jury.

The indictment charged the defendant with having murdered James A. Garfield, and it was the duty of the court to explain the nature of the crime charged. Murder was committed where a person of sound memory and discretion unlawfully killed a reasonable being in the peace of the United States with malice afore thought. It had to be proved, first, that the death was caused by the act of the accused, and, further, that it was caused with malice aforethought. That did not mean, however, that the Government had to

prove any ill-will or hatred on the part of the accused toward the deceased. Wherever a homicide was shown with deliberate intent, it was sufficiently proved to to have been committed without lawful authority and have been done with malice aforethought, and malice was not disproved by showing that the accused had no personal ill-will to the deceased, and that he killed through mistaking him for another, or (as claimed in him from other motives-as, for instance, robbery, or this case) to produce a public benefit. If it could be shown that the killing occurred in a heat of passion or under provocation, then it would appear that there was no premeditated attempt, and therefore no malice aforethought, and that would reduce the crime to manslaughter. It was hardly necessary, however, to say that there was nothing of that kind in the pres ent case. The jury would have to say either that the defendant was guilty of murder or that he was inno assassin must have a reasonably sane mind-in tech-. cent. In order to constitute the crime of murder, the nical terms, he must be "of sound mind, memory, and discretion." An irresponsibly insane man could not commit murder. If he was laboring under a discase of the mental faculties to such an extent that he did not know what he was doing, or did not know it was wrong, then he was wanting in that sound mind, memory, and discretion that was a part of the definition of murder. In the next place, every defendant was presumed innocent until the accusation against him was established by proof. In the next place, notwithstanding this presumption of innocence, it was equally true that a defendant was presumed to be sane, and to have been so at the time the crime was committed-that is to say, that the Government was not bound to show affirmatively, as a part of its proofs, that the defendant was sane. As insanity was the exception, and as the majority of men are sane, the law presumed the latter condition of every man, until some reason was shown to believe to the contrary. The burden was, therefore, on the defendant, who set up insanity as an excuse for crime, to produce proofs in the first instance to show that that presumption was mistaken, so far as it related to the prisoner. Crime, therefore, involved three elements the killing, malice, and a responsible mind in the murderer. After all the evidence was before the jury, if the jury, while bearing in mind both those presumptions-that is, that the defendant is innocent till he is proved guilty, and that he is sane till the contrary appears-still entertained what is called a reasonable doubt on any ground, or as to any of the essential elements of the crime, then the defendant was entitled to the benefit of that doubt and to an acquittal.

It was important to explain to the jury here in the best way that the court could what is a reasonable doubt. He could hardly venture to give an exact definition of the term, for he did not know of any successful attempt to do so. As to questions relating to human affairs, a knowledge of which is derived from testimony, it was impossible to have the same kind of certainty that is created by scientific demonstration. The only certainty that the jury could have was a moral certainty, depending on the confidence which the jury had in the integrity of witnesses, and in their capacity and opportunity to know the truth. If, for example, facts not improbable in themselves were attested by numerous witnesses, credible and uncontradicted, and who had every opportunity to know the truth, a reasonable or moral certainty would be inspired by that testimony. In such a case doubt would be unreasonable, or imaginary, or speculative. It ought not to be a doubt as to whether the party might not be innocent in the face of strong proofs of his guilt; but it must be a sincere doubt, whether he had been proved guilty. Even where the testimony was contradictory, and where so much more credit should be given to one side than the other, the same result might be produced. On the other hand, the opposing proofs might be so balanced that the jury