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become virtually insane. If such persons are aware of this infirmity, and nevertheless voluntarily take the stimulant, their subsequent insane condition, if it be only special and temporary, is no defence. But what if they are not aware of this tary," is peculiarity of their constitution ? Or how is it if such tioned by susceptibility, instead of being constitutional, so that they temperacan have notice of it, is exceptional, induced by some peculiar temporary debility or disease? Is a man, who, under such abnormal conditions, is maddened by a quantity of wine, which on former occasions he wisely and soberly used as a mere tonic, to be regarded as making himself voluntarily mad ?' This question is elsewhere fully discussed. It is enough now to say that the tendency both of argument and authority is to answer the question in the negative. And a fortiori in this case where the stimulant is given through the mistake or misconduct of others.


7. Practice in Cases of Insanity. § 56. The mode of examining witnesses called to testify as to sanity is examined in detail in another work.”

At present it may be sufficient to recapitulate the following conclusions :

may give (1) Non-experts as well as experts may be asked opinion whether in their opinion a party whom they had the observa

tion. opportunity to observe was at the time drunk.

(2) Such being the case, we must also hold that as to conditions equally patent to the lay mind—e. 9., stupor, dementia, amentia, paralysis—a non-expert as well as an expert may give his opinion.

(3) When acts of doubtful signification are put in evidence by a non-expert, he is not entitled to give his opinion as to their effect, since this is a matter of which the jury are as qualified to judge as he is.


See State t. Johnson, 40 Conn. 143-4, 216, 1826, remarks by Parke, 136, 1873.

J., and see infra, & 373. * 1 Whart. & St. Med. Jur. 2 211. 5 Whart. Cr. Ev. & 417. See Com.

* Roberts v. People, 19 Mich. 401, v. Brayman, 136 Mass. 438, 1884. 1869; Rogers v. State, 33 Ind. 543, Upstone v. People, 109 Ill. 169, 1870; but see Choice v. State, 31 Ga. 1883; State v. Lewis, 20 Nev. 333, 424, 1861.

1889; State v. Leehman, 2 S. Dak. * See People v. Robinson, 2 Parker 171, 1891; Armstrong v. State, 30 Fla. C. R. 235, 1884; Choice v. State, ut 170, 1892; State v. Maier, 36 W. Va. supra, cf. Pearson's Case, 2 Lew. 757, 1892; People v. Taylor, 138 N.

Y. 398, 1893.


may be

the ac


(4) As to hypothetical cases an expert' may be examined, but not a non-expert.

(5) The weight of authority is that intelligent attendants, who have lived continuously with a party, may give an opinion as to his sanity, though they are not specialists in psychological disease. § 57. Whatever may once have been thought, it is now settled

that the defence of insanity may be taken by the friends

and counsel of a prisoner, even though this course be friends of objected to by himself. Thus in an English case, a man

was indicted for shooting at his wife with intent to

murder her, and was defended by counsel who set up for him the defence of insanity. The prisoner, however, objected to such a defence, asserting that he was not insane, and was allowed to suggest questions, to be put by the judge to the witnesses for the prosecution, to negative the supposition that he was insane; and the judge also, at the request of the prisoner, allowed additional witnesses to be called on his behalf for the same purpose. They, however, failed to show that the defence was an unfounded one; but, on the contrary, their evidence tended to establish it more clearly, and the prisoner was acquitted on the ground of insanity.s To refuse this right to the guardian or friends of the accused would be to assume his sanity, which is the question at issue.

§ 57 a. In some jurisdictions the defence of insanity jurisdic- must be set up on a special plea. tions plea is special.

§ 58. By the common law, if it be doubtful whether a

criminal who, at his trial, in appearance is a lunatic, be tried by such in truth or not, the issue is to be tried by the jury jury.

who are charged to try the indictment, or, being a collateral issue, the fact may be pleaded and replied to ore tenus and a venire awarded, returnable instanter, in the nature of an inquest of office. If it were found by the jury that the party only feigned

In some

Issue to be


1 Taylor v. State, 83 Ga. 647, 1889; 5 R. v. Pearce, 9 C. & P. 667, 1840. Montgomery v. Com., 88 Ky.509, 1889. 6 Whart. Cr. Pl. & Pr. % 429 a.

? State v. Coleman, 20 S. C. 441, 7 Bac. Ab. “Idiot” (B); R. v. Ley, 1883; Gunter v. State, 83 Ala. 96, 1 Lewin, 239, 1823; 1 Russ. C. & M. 1888; Kearney v. State, 68 Miss. 233, 14. See 1 Hawk. c. 1, s. 4; R. v. Has1890.

well, R. & R. 458, 1818. 3 People v. Lee Fook, 85 Cal. 300, An article on this topic by Prof. 1890.

Ordronaux will be found in 1 Crim. * State v. Patten, 10 La. An. 299, Law Mag. 431 et seq. 1855. See R. v. Pearce, 9 C. & P. 8 Fost. 46; 1 Lev. 61; Russ. C. & 667, 1840.

M., by Greaves, 14,


himself lunatic, and he refused to answer, he was, before the 7 & 8 Geo. IV. c. 28, s. 2, dealt with as one who stood mute, and as if he had confessed the indictment; but now, by virtue of that enactment, a plea of not guilty may be pleaded. The principal point to be considered by the jury under that statute is, whether the defendant is of sufficient intellect to comprehend the course of the proceedings on the trial, so as to be able to make a proper defence. The question whether the defendant was insane at the commission of the offence is considered at common law under the plea of guilty. As has been already seen, the defendant who sets up this defence is required, in some jurisdictions, to present it in a special plea to be tried before the plea of not guilty.

$ 59. If a party under sentence of death becomes insane after conviction, execution is to be deferred, and in some jurisdictions

See R. v. Prichard, 7 C. & P. 303, quired to take order on the premises. 305, 1836; s. c. 1 Lewin, 84

Ibid. c. 136, s. 15. See Gen. Stat. c. In Massachusetts, where one, having 171, 15. committed a homicide, was sent to the In New York, it has been judicially house of correction, pursuant to Stat. held that the test of insanity, when set 1797, c. 61, s. 3, as a person dangerous up to bar a trial, is, whether the pristo go at large, and was then tried for oner is mentally competent to make a murder and acquitted on the ground rational defence. Freeman v. People, of insanity, the court remanded him 4 Denio, 9, 1847. On a preliminary to the house of correction till he should trial to determine whether the defendbe duly discharged. Com. v. Meriam, ant is sane enough to make a rational 7 Mass. 168, 1810. See Com. v. Braley, defence, the defendant is not entitled 1 Mass. 103, 1806; 13 Mass. 299, 1816; to peremptory challenges; but chalCom.v. Battis, 1 Mass. 95, 1806. But by lenges for cause may be made. Ibid. the General Statutes it is provided See as to statute, 1 Crim. Law Mag. 435. that “when any person indicted for an In Pennsylvania, the revised act offence is, on trial, acquitted by the (1860) provides for a special verdict jury, by reason of insanity, the jury, in case of insanity on a preliminary in giving their verdict of not guilty, issue. shall state it was given for such cause; In Tennessee, under the statute, an and thereupon, if his discharge or analogous practice exists. Coldwell going at large is deemed manifestly v. State, 3 Baxt. 418, 1869. dangerous to the peace and safety of ? See Whart. Cr. Pl. & Pr. & 429 a the community, the court may order (9th ed.); Bennett v. State, (57 Wis.) him to be committed to one of the 4 Crim. Law Mag. 378; Coldwell v. state lunatic bospitals; otherwise he State, 3 Baxt. 418, 1869. shall be discharged.” Gen. Stat. c. It has been held not error to require 173, & 17. See 7 Gray, 584, 1856; a defendant to plead “not guilty,” in Rev. Stat. Mass. c. 138, s. 13. In the addition to his special plea of insanity. same State, in case of insanity, “the Long v. State, 38 Ga. 491, 1869. grand jury shall certify that fact to the 3 Hale's Sum. 10; 1 Hawk. c. 1. % court,” and thereupon the court is re- 3; 4 Black. Com. 24,

the issue in such case is referred to a jury for determination.'

It has been ruled in such case that evidence of the conInsanity after con

vict's mental condition at the time of the commission of viction defers execu- the crime is admissible to illustrate his present condition.

tion, provided there be other evidence of present insanity, or provided permanent insanity be thereby shown.? $ 60. By the common law, every man is presumed to be sane

until the contrary be proved, and the better opinion is, Burden is on party

that when insanity is set up by the defendant, it must be disputing

proved as a substantive fact by the party alleging it, on sanity.

whom lies the burden of proof. The finding of an inquisition of lunacy, which is admissible, shifts the burden.”

§ 61. Three distinct theories have been propounded as to the degree of evidence requisite to justify a conviction on the issue of insanity.

The first is that insanity, as a defence of confession and avoidance, must be proved beyond reasonable doubt; and that unless this

be done, the jury, the case of the prosecution being otherConflicting theories as wise proved, are to convict. This is expressed by Hornto amount of evi- blower, C. J., as follows: “The proof of insanity at the dence

time of committing the act ought to be as clear and satisrequisite to prove

factory, in order to acquit him on the ground of insanity, insanity.

as the proof of committing the act ought to be to find a 1 See State v. Lane, 4 Ired. 431, Zab.) 202, 1849; State v. Brandon, 8 1843; State v. Hinson, 82 N. C. 540, Jones, (N.C.) 463,1860; State v. Starke, 1880; State v.Vann, 84 N. C. 722, 1881. 1 Strob. 479, 1846 ; State v. Brin

2 Spann v. State, 47 Ga. 553, 1872. yea, 5 Ala. 241, 1843; People v. Myers,

In Pennsylvania, when insanity is 20 Cal. 518, 1861; Boswell v. Com., 20 set up as a bar to sentence, the ques- Gratt. 860, 1871; Loeffner v. State, 10 tion of a jury trial is at the discretion Ohio St. 598, 1810; State v. Coleman, of the court. Laros v. Com., 84 Pa. 20 S. C. 441, 1883; U. S. v. Ridgeway, 200, 1877.

31 Fed. Rep. 144, 1887; Messengale Dacey v. People, 116 Ill. 555, v. State, 24 Tex. App. 181, 1887; 1886; Montag v. People, 141 Ill. 75, Territory v. Calton, 5 Utah, 451, 1888; 1892.

Rather v. State, 25 Tex. App. 623, * Whart. Cr. Ev. & 336; R. v. Stokes, 1888; State v. Reidell, 9 Houston, 3 C. & K. 188, 1850; R. v. Taylor, 4 (Del.) 470, 1888; People v. Eubanks, Cox C. C. 155, 1850; R. v. Haswell, 86 Cal. 295, 1890; Smith v. State, 31 R. & R. 458, 1818; Atty.-Gen. v. Tex. Cr. 14, 1892; Moore v. Com., 92 Parnther, 4 Brown C. C. 409; R. v. Ky. 630, 1892; State v. Schaefer, 116 Layton, 4 Cox C. C. 149, 1850; U. S. Mo. 96, 1893 ; People v. Bemmerly, 98 v. Lawrence, 4 Cranch C. C. 514, Cal, 299, 1893. 1835; U. S. v. McGlue, 1 Curtis, 1, 5 McGinnis v. Com., 74 Pa. 245, 1855; Com. v. Eddy, 7 Gray, 583, 1873; Wheeler v. State, 34 Ohio St. 1856 ; State v. Spencer, 21 N. J. L. (1 394, 1877 ; Whart. Cr. Ev. & 336.



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sane man guilty. Several English authorities are cited to the same effect.?

The second is that the jury are to be governed by the preponderance of evidence, and are not to require insanity to be made out beyond reasonable doubt. This view is now generally accepted in England ;5 and is maintained in Maine ; 6 in Massachusetts ;7 in Pennsylvania ;8 in Virginia ;' in West Virginia ;10 in Ohio ;" in Michigan ; 12 in Minnesota ; 13 in North Carolina ; 14 in South Carolina ;15 in Alabama ;16 in Georgia ; 17 in Louisiana ;18 in Texas ; 19 in California ;20 in Iowa ;21 in Idaho ; 22 and in Arkansas.23

State v. Spencer, 21 N. J. L. (1 . Baccigalupo v. Com., 33 Gratt. 807, Zab.) 202, 1849. In Graves v. State, 1879. 45 N. J. L. (16 Vroom) 203, 1883, 10 State v. Strauder, 11 W. Va. 747. however, the court held that prepon- 11 Loeffner v. State, 10 Ohio St. 598, derance was to determine. See Whart 1860; Bond v. State, 23 Ohio St. 349, Cr. Ev. 2 729.

1872 ; Bergin v. State, 31 Ohio St. 111, ? 1 Whart.& St. Med. Jur. 88225, 226. 1875.

: Parsons v. State, 9 Crim. Law People v. Finley, 38 Mich. 482, Mag. 812, 1887; Coates v. State, 50 1878. Ark. 330, 1887; State v. Lewis, 20 13 State v. Gut, 13 Minn. 341, 1867; Nev. 333, 1889; Lovegrove v. State, State v. Grear, 28 Minn. 426, 1881. 31 Tex. Cr. 491, 1893.

14 State v. Starling, 6 Jones, (N. C.) * See Com. v. Eddy, 7 Gray, 583, 366, 1858; State v. Brandon, 8 Jones 1857; Com. v. Rogers, 7 Metc. 500, (N. C.) 463, 1860. See State v. Payne. 1813; Loeffner v. State, 10 Ohio St. 86 N. C. 609, 1882. 598, 1860; Gunter v. State, 83 Ala. 96, 15 State v. Stark, 1 Strob. L. 479, 1846. 1887; Plake v. State, 121 Ind. 433, 16 Boswell v. State, 63 Ala. 307, 1889; Maxwell v. State, 89 Ala. 150, 1879; Ford v. State, 71 Ala. 385, 1882. 1889; Armstrong v. State, 30 Fla. 170, 17 Carter v. State, 56 Ga. 463, 1876. 1892; McLeod v. State, 31 Tex. Cr. 18 State v. Coleman, 27 La. An. 691, 331, 1892; Com. v. Gerade, 145 Pa. 1875. 289, 1891.

19 Jones v. State, 13 Tex. App. 1, 6 See R. v. Layton, 4 Cox C. C. 149, 1883. See Webb v. State, 9 Tex. 1819; R. v. Higginson, 1 C. & K. 130. App. 496, 1880; King v. State, 9 Tex.

State v. Lawrence,57 Me.574,1868. App. 515, 1880. ? Com. v. Eddy, 7 Gray, 583, 1857 ; 20 People v. Coffmann, 24 Cal. 230, Com. v. Rogers, 7 Metc. 500, 1843; 1863; People v. Hamilton, 62 Cal. 377, Com. v. Heath, 11 Gray, 303, 1857. 1882, modifying People v. Wredon,

& Com. v. Ortwein, 76 Pa. 414, 1874 62 Cal. 377, 1882. See People v. Bell, See Com. v. Winnemore, 1 Brewst. 356, 49 Cal. 486, 1875; People v. Messer1867; Com, v. Haggerty, Lewis Cr. L. smith, 61 Cal. 246, 1882. 402; Myers v. Com., 83 Pa. 131, 1876 ; 21 State v. Felter, 32 Iowa, 49, 1869. Laros v. Com., 84 Pa. 200, 1877; 22 People v. Walter, 1 Idaho, N. S. Sayres v. Com., 88 Pa. 290, 1879; 386, 1875. Nevling v. Com., 98 Pa. 322, 1881 ; 23 McKenzie v. State, 26 Ark. 334, Coyle v. Com., 100 Pa. 573, 1882. To 1872. exact "clearly preponderating evi- As to Indiana, see Mitchell v. State, dence" is error. Ibid.

63 Ind. 276, 1878.

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