that it is proper to express an opinion upon it, in order to prevent a repetition of the error upon another trial. By the provisions of the Utah Code of Criminal Procedure, already referred to, the charge of the judge to the jury at the trial must be reduced to writing before it is given, unless the parties consent to its being given orally, and the written charges or instructions form part of the record, may be taken by the jury on retiring for deliberation, and are subjects of appeal. The object of these provisions is to require all the instructions given by the judge to the jury to be reduced to writing and recorded, so that neither the jury, in deliberating upon the case, nor a court of error, upon exceptions or appeal, can have any doubt what those instructions were; and the giving, without the defendant's consent, of charges or instructions to the jury, which are not so reduced to writing and recorded, is error. Feriter v. State, 33 Ind., 283; State of Missouri v. Cooper, 45 Mo. 64; People v. Sanford, 43 Cal., 29; Gile v. People, 1 Col., 60; State v. Potter, 15 Kan., 302.

The bill of exceptions shows that the presiding judge, after giving to the jury an instruction requested in writing by the defendant upon the general burden of proof, proceeded of his own motion, and without the defendant's consent, to read from a printed book an instruction which was not reduced to writing, nor filed with the other instructions in the case, but was referred to in writing in these words only: "Follow this from Magazine American Law Register, July, 1868, page 559;" and that to the instruction so given an exception was taken and allowed. This was a clear disregard of the provisions of the statute. The instruction was not reduced to writing, filed, and made part of the record, as the statute required. If the book was not given to the jury when they retired for deliberation, they did not have with them the whole of the instructions of the judge, as the statute contemplated. If they were permitted to take the book with them without the defendant's consent, that would of itself be ground of exception. Merrill v. Nary, 10 Allen (Mass.), 416.

For these reasons the judgment must be reversed, and the case remanded with instructions to set aside the verdict and order a new trial.

§ 3158. When insanity will excuse crime; how insanity ascertained.- Where a person, charged with crime, cannot discriminate between right and wrong, he is not a proper subject of punishment; and this fact can be best ascertained, not by any medical theory, but by the acts of the individual himself. Does he commit the offense by embracing the most favorable opportunity, in the absence of witnesses, and under circumstances likely to avoid detection; and if he steals money, does he account for the possession of it in an honest way; and does he, under apprehension of arrest, endeavor to elude the officers of the law? United States v. Shults,* 6 McL., 121. See SS 3103, 3116, 3118.

§ 3159. Although a person is laboring under partial insanity at the time of the commission of a crime, yet if he still understands the nature and character of the act and its consequences, and has a knowledge that it is wrong and criminal, and 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 deserve punishment, such partial insanity is not sufficient to exempt him from criminal responsibility. United States v. Holmes, 1 Cliff., 98.

3160. Accused presumed sane.- Every person, on trial, under a criminal charge, is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his criminal acts, unless the contrary is proved to the satisfaction of the jury. Ibid. See 3104, 3117,

3121.

§ 3161. Murder; drunkenness.- A prisoner is not guilty of murder, if, at the time of committing the act, he was in such a state of mental insanity, not produced by the immediate effects of intoxicating drink, as not to have been conscious of the moral turpitude of the act. United States v. Clarke, 2 Cr. C. C., 158. See $$ 3122-23.

§ 3162. Accused insane at time of trial; inquiry.— Upon a motion for a new trial, after a verdict of guilty in a trial for perjury, based upon the suggestion that at the time of the trial the defendant was of unsound mind, the court ordered a jury to investigate the matter,

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and directed them that the question to be determined was whether the prisoner, at the time of his trial, was so far of unsound mind as to be incapable of comprehending the nature of the charge against him, and of properly presenting his defense. United States v. Lancaster, 7 Biss., 440.

§ 3163. Upon a motion for a new trial, based upon the insanity of the prisoner at the time of his trial, the burden of proof of insanity is on the prisoner. But he is to have the benefit of any reasonable doubt on that subject. Ibid

§ 3164. Drunkenness is no excuse or palliation for the crime of murder. United States v. Cornell, 2 Mason, 91. See §§ 3122–23.

§ 3165. Intoxication is no excuse for crime, when the offense consists merely in doing a criminal act without regarding intention. But when the act done is innocent in itself, and criminal only when done with a corrupt or malicious motive, a jury may presume from the intoxication that there was a want of criminal intention, and that the reasoning faculties did not act. But if the mind act, a state of partial intoxication affords no grounds of 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. The question to be determined is whether the accused knew what he was about. United States v. Roudenbush,* Bald., 514.

§ 3166. Drunkenness is no excuse for an attempt to murder, but the intoxication of the prisoner is a fact proper to be considered by the jury in forming their opinion of the intent with which the acts were done. United States v. Bowen, 4 Cr. C. C., 604.

§ 3167. The artificial, voluntarily contracted, and temporary madness produced by drunkenness is rather an aggravation of than 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. Drunkenness is no excuse for crime. Nothing is more easily counterfeited, and no state is so irregular in its operation. United States v. Forbes,* Crabbe, 561.

XXXIII. REMOVAL OF CAUSES.

1. From one Federal Court to Another.

SUMMARY Not required to send original indictment, § 3168; too late to object that a copy was sent, § 3169.— Libel in District of Columbia, § 3170.— Passing upon sufficiency of indictment, § 3171.- Arrest on copy of indictment, §§ 3172, 3173.— Offense committed in a territory, § 3174.- When warrant of removal may be refused, § 3175.— In what cases a removal is authorized, § 3176.

§ 3168. Under the act of congress providing for the removal of pending indictments from the district to the circuit court, it is not necessary that the original indictment be sent to the circuit court, but an exemplified copy of the record including the indictment is sufficient. When found, the indictment becomes a part of the records of the court, and is to be proved by an exemplification. United States v. McKee, § 3177-82.

§ 3169. When an indictment found in a district court is transmitted to the circuit court for trial, and the defendant goes to trial without objecting that a copy was sent up instead of the original, he cannot make that objection after his conviction under such indictment. Ibid. $3170. It seems that the offense of libel in the District of Columbia is an offense against the United States for which the offender may be there indicted as at common law and punished. In re Buell, $ 3183-87.

$3171. Where an offender is arrested in another district than that in which the offense is committed, upon an indictment found against him in such place, the district judge, before ordering his removal, has a right to pass upon the sufficiency of the indictment, and order the discharge of the prisoner if it is fatally defective. Ibid.

§3172. A certified copy of an indictment, if uncontradicted, is sufficient evidence upon which to warrant the arrest and commitment for examination of a person sought to be removed from one judicial district of the United States to another for trial. United States v. Haskins, SS 3188-91.

§ 3173. It is not required that the defendant be confronted with the witnesses on a preliminary examination. And it is held that a copy of an indictment is sufficient evidence to authorize a committing magistrate out of the district to cause the accused person to be bailed for trial in the district in which the indictment was found. In re Alexander, § 3194.

§ 3174. A person indicted by a grand jury in a territory for an offense against the United States, and for whose arrest a warrant has been issued by the marshal of the United States for the territory, if found within one of the states, may, under the thirty-third section of the judiciary act, upon affidavit, made before the district judge of the United States in that state, setting out the finding of the indictment, and that it is still pending, and upon an authenticated exhibition of the indictment, be arrested on a warrant issued by such district judge, and upon examination committed or bailed for trial before the court to which the indictment was returned; and if bail be not given a warrant for his removal to the territory may issue. United States v. Haskins, § 3188-91.

§ 3175. Where a district judge is applied to for a warrant of removal, and it appears from the indictment on which the warrant is asked that the act alleged does not constitute an offense against the United States, or that no trial can be had in the district to which the removal is sought, it is his duty to refuse the warrant. In re Doig, $$ 3192-93.

§ 3176. A warrant for the removal of a person accused of a crime from one federal district to another is authorized only where the offender has been first arrested and committed for want of bail in a bailable case. Where a person is arrested in another district from that in which the crime is committed, he is first to be taken before the proper officer, who is to examine as to the crime alleged to have been committed. If there is not probable cause of the defendant's guilt he is entitled to be discharged. If there be found reasonable cause for holding the accused to answer, upon tendering sufficient bail he is entitled to be discharged. Only on failure to furnish bail, if the case is bailable, can he be committed. United States v. Shepard, SS 3195-99.

[NOTES.-See $$ 3200-3208.]

UNITED STATES v. MCKEE.

(Circuit Court for Missouri: 4 Dillon, 1-10. 1876.)

STATEMENT OF FACTS.- McKee was indicted for a conspiracy with other persons to defraud the United States of the taxes on distilled spirits. The indictment was found in 1875 in the district court for the eastern district of Missouri, and McKee having appeared was arraigned and pleaded not guilty. At the same term an order was duly entered on the record of the district court trans-. ferring the case to the circuit court, and McKee appeared in that court in January, 1876, and withdrew his plea of not guilty and demurred to the indictHis demurrer being overruled he again pleaded not guilty, was tried and found guilty. The case comes before the court on a motion in arrest of judgment, the grounds of which appear sufficiently in the opinion of the court. Opinion by DILLON, J.

ment.

The objection relied on is that the circuit court acquired no jurisdiction over the defendant and the case, because under the order of the district court remitting the indictment, the original indictment was never transmitted to this court, but only a certified copy thereof. It is also contended by the defendant, that, if the presence of the original indictment is not a jurisdictional requisite, yet, inasmuch as the statute contemplates that the defendant shall be tried upon the original, and not upon a copy, he has not been legally convicted, and judgment should be arrested. Both of these objections fail if the statute does not require the original indictment to be transmitted with the rest of the record and the order of remission.

$3177. Under Revised Statutes, section 1037, it is not required in a criminal case that the original indictment be sent up from the district court to the circuit court, when under that statute a case is transmitted from the former to the latter court.

When this question, which is new, and has never been decided, was first started, it occurred to us that the language of the statute (R. S., sec. 1037), viewed in connection with other statutes as to the removal of causes from

state to federal courts, contemplated that the indictment, that is, the original indictment, and all recognizances, processes and papers — in a word, the original files should be transmitted to the court to which the case is sent. Subsequent reflection and examination have satisfied us that the language of the section, taken altogether, shows that it was the purpose of congress to authorize the transfer from the one court to the other of a criminal case — of the whole case, and all the proceedings in the same, and this is the burden and object of the statute, and not the particular form in which the record of the one court should be sent to the other. The case originated in the district court. The indictment and other proceedings therein were part of the records of that court. An indictment, when found by a grand jury, and presented to and received by the court, passes into and becomes a part of the records of the court. 1 Bish. Cr. Pro. (2d ed.), sec. 36; State v. Gibbons, 1 Southard (N. J.), 40.

§ 3178. An indictment when found becomes a part of the records of the court, and its existence and contents must be proved by an exemplification of the records and not by the production of the original paper.

The indictment being the original accusation of the grand jury, and a part of the records of the court to which it is presented, is always before the court, and in that court it is, perhaps (under the practice in this country), the best evidence of its existence and contents. But in other courts the practice and law are settled that the existence of an indictment and its contents may be shown by exemplification of the record of the court in which it is found, and it is not necessary, if, indeed, competent, to produce the original indictment. Porter v. Cooper, 6 Carr. & P., 354; Rex v. Smith, 8 Barn. & Cress., 341; Bishop v. State, 30 Ala., 34; Roscoe, Crim. Ev. (7th Am. ed.), 165; Harrall v. State, 26 Ala., 52; Major v. State, 2 Sneed (Tenn.), 11; Vail v. Smith, 4 Cow., 71; 1 Greenl. Ev., sec. 502.

§ 3179. The English practice in the removal of an indictment to a superior

court.

And in England it is settled that the finding of an indictment in another court cannot be proved by the production of the original by the clerk of the court in which it is found, but it must be proved by a record regularly drawn up containing a copy of it. Rex v. Smith, 8 Barn. & Cress., 341; Roscoe, Crim. Ev. (7th Am. ed.), 165. In England indictments found in inferior jurisdictions may be removed, with all the proceedings thereon, at any time before trial, into the king's bench, to have their validity determined and to prevent a partial and insufficient trial in the court below. 1 Bl. Com., 320, 321; 1 Chitt. Cr. L., 371 et seq. The English books always speak of the "removal of the indictment" and the "delivery of the indictment" to the higher court, but in point of fact the original indictment remains in the court in which it is found, and only the record of it and the proceedings of record touching it are sent to the higher court. The removal is effected by the writ of certiorari, which issues out of the king's bench, directed to the judges or officers of the inferior court in which the indictment is pending, and commands them to certify "all and singular the said indictment," etc. 1 Chitt. Cr. L., 387. Notwithstanding the command of the writ is to certify the indictment, the writ is executed by transmitting "the record of the indictment" and the other proceedings of record thereon - and not the original indictment (1 Chitt. Cr. L., 394; id., 334), where it is expressly said that the "copy of the indictment" is transmitted to the superior court. In The State v. Gibbons, 1 Southard (N. J.), 40, 44, the original indictment was sent to the supreme court, and it was held to be im

proper and insufficient. The chief justice observed: "When the grand jury return into court and present an indictment, an entry is made in the minutes of such presentment, stating against whom the same is, and for what crime; and then the indictment itself passes to the files of the court, there to remain until it becomes necessary to make up the record, and then to be affiled among the rolls. In all cases where a certiorari is presented, whether before or after plea pleaded, it is essential that the proceedings, so far as they have gone, be enrolled, and that that roll, and nothing else, be certified to the upper

court."

The removal of a criminal case in England after bill of indictment found, by certiorari, from an inferior to a superior jurisdiction, for trial by jury and judgment, is quite analogous to the remission provided for by the statutes of the United States from one of its courts to the other. The English books invariably speak of the "removal of indictments" by certiorari (see Chitt. Cr. L., ch. 10, p. 371), when, in fact, the removal is not of the original, but of the record duly certified, which includes a copy of the indictment. The command of the writ is to "send the indictment," which is obeyed by sending the record of the indictment. The trial is had upon the copy or record thus returned. So, when our statute provides for the remission of the indictment, it may well be construed to mean an exemplified copy or record of the indictment, to be sent with the other records pertaining to the case. It is just as important or as little important that the original bill of indictment found at the sessions should be in the king's bench for the trial of the defendant thereon by a jury as that it be in the federal court to which a criminal case has been sent by the court to which the indictment was originally presented. It is essential to the jurisdiction of the district court that the indictment should have been presented to it by a grand jury impaneled in that court, and these facts ought to appear of record therein. If that court acquired no jurisdiction before the order remitting the indictment, the circuit court could acquire none in consequence of the filing of the order of remission.

Undoubtedly, all the record relating to the case remitted, including recognizances taken in open court and entered of record, and all the proceedings of record, should be transmitted to the court to which the remission is ordered, as well as the indictment. All these other facts of record must go by exemplification or certified copy, and if so, why not in the same manner the indictment and process? This is the usual way of transmitting or sending the record in a case from one court to another; and the practice contended for by the defendant of sending away the originals would compel the court in which the indictment was found to part with its records and leave them incomplete. And the books show that unless the statute requires the original papers to be sent, the practice is to send exemplifications or certified copies. Very little aid is to be had from the decisions of the state courts construing special statutes on the subject of changes of venue in criminal cases. They all concur in holding that when the statute authorizes the trial to be had upon the record copy of the indictment instead of the original, this may be done. Harrall v. State, 26 Ala., 52; Major v. State, 2 Sneed (Tenn.), 11; Bishop v. State, 30 Ala., 34; Reynolds v. State, 11 Tex., 120; Ruby v. State, 7 Mo., 206; Bramlette v. State, 31 Ala., 376.

§ 3180. Quare: As to trial on a copy of a lost indictment.

Whether the defendant may be tried or sentenced upon a copy of a lost indictment is not a question before us, and in respect of which there may be doubt