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A third view is that in such an issue the prosecution must prove sanity beyond reasonable doubt. Thus, in a case in Michigan, in 1869, while it was admitted that sanity was the normal condition of the mind, and that the prosecution might rest upon the presumption that the accused was sane when he committed the act, until it was overcome by the opposite case, it was nevertheless determined that when any evidence which tends to overthrow that presumption is given, the jury are to examine, weigh, and pass upon it, with the understanding that, although the initiative in presenting the evidence is taken by the defence, the prosecution is bound to establish this part of the case as fully as it is bound to establish other essential incidents of guilt."

Similar views have been maintained by other American courts; and it has been not infrequently ruled that where there is reasonable doubt as to sanity, the jury must acquit.?

1 People v. Garbutt, 17 Mich. 9, 1868. Mo. 173, 1880; and so in Indiana;

In New York the tendency in the McDougal v. State, 87 Ind. 24, 1882. main is to sustain the distinctions of ? As taking this position may be the text, and to hold that while a rea- cited; U. S. v. Lancaster, 7 Biss. 440, sonable doubt as to sanity is sufficient 1875; State v. Bartlett, 43 N. H. 224, to require an acquittal in all cases in 1861; State v. Jones, 50 N. H. 369, which sanity is part of the case of the 1870; State v. Patterson, 45 Vt. 308, prosecution, yet, when insanity is set 1873; State v. Johnson, 40 Conn. 139, up by the defence for the purpose of 1873; Polk v. State, 19 Ind. 170, 1862; establishing general non-accountabil- Bradley v. State, 31 Ind. 492, 1869; ity, and of placing the defendant McDougall v. State, 88 Ind. 24, 1882; under permanent sequestration as a Fisher v. People, 23 Ill. 283, 1859 ; dangerous lunatic, such insanity must Hopps v. People, 31 Ill. 385, 1862; be established by a preponderance of Chase v. People, 40 Ill. 352, 1865; proof. See People v. McCann, 16 Smith v. Com., 1 Duv. 224, 1864; Kriel N. Y. 58, 1858; Walter v. People, 32 v. Com., 5 Bush, 362, 1869; Ball v. N. Y. 147, 1865; Flanagan v. People, Com., (Ky. 1884); Lawless v. State, 4 52 N. Y. 467, 1873; Brotherton v. Lea, 179, 1880; State v. Marler, 2 Ala. People, 75 N. Y. 154, 1874; O'Connell 43, 1841; Cunningham v. State, 56 v. People, 87 N. Y. 377, 1882; Walker Miss. 269, 1878; State v. De Rance,

People, 88 N. Y. 81, 1882. These 34 La. An. 186, 1882; Wright v. Peocases are considered in detail in Whart. ple, 4 Nev. 407, 1868; State v. CrawCr. Ev, 9th ed. & 338.

ford, 11 Kans. 32, 1873; People v. In Missouri the cases may be har- Waterman, 1 Nebr. 343, 1871; Webb monized by the application of the v. State, 9 Tex. App. 490, 1880. See above distinction. See State v. Hund- State v. Graves, 45 N. J. L, 203, 1883; ley, 46 Mo. 414, 1871; State v. Kling- Armstrong v. State, 30 Fla. 170, 1892; ler, 43 Mo. 127, 1869; State v. Smith, Revoir v. State, 82 Wis. 295, 1892; 53 Mo. 267, 1873; State v. Simms, 68 Hornish v. People, 142 Ill. 620, 1892; Mo. 305, 1878; State v. Redemeier, 71 State v. McIntosh, 39 S. C. 97, 1892.


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$ 62. It may be said that the position, that unless there be a preponderance of proof of insanity there can be no acquittal on the ground of insanity, is inconsistent with the principle that if there is reasonable doubt of guilt there can be no conviction. But there is no such inconsistency. Insanity, as a defence in criminal prosecution, has two distinct aspects, subject to very different rules. When the question, as in a charge of murder in the first degree, is whether there was a particular intention in the defendant's mind at a particular time, then, if such intention cannot be proved beyond reasonable doubt, there must be an acquittal of this grade of murder. An indictment, for instance, is found in Pennsylvania for murder in the first degree. By the law of that State there can be no conviction of murder in the first degree, unless it be proved that the defendant at the time of the homicide specifically intended to take the deceased's life. We will assume a case, however, in which the defendant's mind, at the time of the litigated event, was so affected by disease that it is questionable whether he was then capable of forming a specific intent to take life. Now, in such a case, if there be reasonable doubt whether the defendant was capable of forming a specific intent to take life, the jury should be instructed (and this has been so done in several cases in Pennsylvania) to acquit of murder in the first degree, and convict of murder in the second degree, or of manslaughter. The same rule applies to all other cases in which it is incumbent on the prosecution to prove a sane intent on the part of the defendant; in which cases such intent must be proved beyond reasonable doubt. It is otherwise, however, where insanity is set up, not to qualify the proof of intent, but as a bar to criminal procedure. In the former case it goes to the question of guilt or innocence; in the latter case it goes to the amenability or non-amenability of the defendant to criminal jurisdiction. In the former case the defence says, “not guilty of specific act charged ;" in the latter case it says, “not the subject of penal discipline.” The plea of insanity, when thus offered in bar of the prosecution, stands, as do analogous pleas of non-amena

In South Carolina it is held, follow- In Arkansas it is ruled by a maing the distinction of the text, that jority of the court (Eaken, J., diss.) where the issue is at common law, that the burden is on the defendant whether there is capacity to commit to “clearly prove” insanity. Casat crime, this capacity must be proved v. State, 40 Ark. 511, 1881. beyond reasonable doubt by the prose

Supra, 252. cution. Coleman v. State, 20 S. C. 441, 1882.


bility, on the ground of want of jurisdiction. This brings us to the rightful solution of this vexed issue. The test of “reasonable doubt” only applies to questions of “guilt” or “innocence.” The defence of insanity, as a bar, like other defences based on non-amenability to penal discipline, is not one of "guilt” or “innocence." It is not one, therefore, when offered in bar of an indictment, to which the test of “reasonable doubt” applies. The errors into which judges have been led in this respect have been errors arising from the defective way in which the plea is presented. If it were offered specially in bar, as a preliminary issue, as it is in some jurisdictions, then no one would question that the case would go to the jury to be decided according to thc preponderance of proof. Supposing that the plea, being special (as is the plea, for instance, of autrefois acquit), should be determined against the defendant, then he would be compelled to plead over, and then, to the questions of facts arising under a plea of not guilty, the test of “reasonable doubt” would be applicable. And it would be easy to conceive of cases in which, after a verdict against the defendant on the special plea of insanity, a verdict acquitting him of the

1 We may cite, as an illustration, acted under British orders, then he is the case of McLeod, 1 Hill, (N. Y.) to be remanded to his own govern377, 1841; 25 Wend. 483; where, in ment for discipline.” order to sustain non-amenability to Another illustration, already nothe New York tribunals, the defend- ticed in the text, is to be found in ant's counsel maintained that the de- those cases in which, on a plea of fendant, in the transaction which was autrefois acquit, a question of fact, to the subject of the indictment, was be determined by a jury, arises, whether acting as a servant of the British gov- the offence of which the defendant ernment, under the direct order of was acquitted was the same as that on that government. If this had been trial. In such a case the jury would sustained as a matter of fact, then the not be told," If you have a reasonable conclusion would have been, as a doubt you must find for defendant.” matter of law, that our quarrel was What they would be told is,


you with the British government, and not decide that there is a preponderance with McLeod. But if the question of of proof to the effect that the cases are fact in such a case should be disputed, the same, then you must so find; otherno one would claim that if there be wise you must find that the cases are reasonable doubt as to whether the not the same." See Whart. Cr. Pl. & defendant acted as the servant of a Pr. & 483. In neither of the cases last foreign government, he should be ac- mentioned does the question of guilt or quitted. What the jury would be told innocence arise, and in neither case, if would be, “Here is a question of fact; the defence be properly pleaded, would if the proof satisfies you that a de- evidence to show either guilt or innofendant was a British subject, and cence be relevant.

highest grade of the offence might be had on the ground of the very insanity which was held not to be sufficient to sustain a verdict of non-a menability on the first plea. Suppose, for instance, that, in a case of homicide, the proof of insanity on the first trial was not sufficiently strong to transfer the defendant from the category of the sa ne to that of the insane, and yet that such evidence was strong enough on the second trial to raise a reasonable doubt as to whether the defendant had specifically intended to kill the deceased. In such case, though the issue of insanity had been determined on the first trial against the defendant, he should be convicted only of murder in the second degree, or of manslaughter, on the second trial, which would involve his acquittal of murder in the first degree. By maintaining this distinction we avoid the danger (incident to the application of the test of "reasonable doubt” to all issues of insanity raised in a criminal court) of committing a defendant as to whose sanity there is “reasonable doubt” to perpetual sequestration in an insane asylum.

$ 63. When insanity of a permanent type is shown to have existed prior to the commission of an act, it will be inferred to



Walker v. People, 88 N.Y. 82, 1876, sane. The only way to avoid this ababove cited, is an illustration of this surdity is to put the determination of

Walker was tried for abduc- the issue of insanity, when set up to tion. Suppose he had been indicted bar amenability, on the same basis in for an assault

, and suppose, as it has criminal as that adopted in civil frequently been decided to be permis- courts. In both courts the presumpsible, his relatives or friends, against tion is that persons coming into courts his protest, had interposed the plea of of justice are sane, and that the burden insanity. We can imagine, in fact, of proof is on the parties contesting many cases in which this might be such sanity. In criminal courts, as a convenient way of disposing of an well as in civil

, the rule should be that uncomfortable relative or neighbor. to take a particular person out of the A defendant of this class finds him- category of reasonable and responsible self, when tried for some minor offence, beings, and to subject him to the seconfronted by a plea of insanity in- questration and restrictions imposed terposed in his behalf. If the view by the law on adjudicated lunatics, at here contested be the law, the judge least a preponderance of proof of inwould have in such case but one course sanity should be required. open to him. He would be obliged to

The above argument is expanded by hear the evidence, no matter what me in the Central Law Journal for might be the defendant's protesta- May 23, 1884. The subject is discussed tions; and, what is more, he would more fully in Whart. Cr. Ev. 22. 338 be obliged to tell the jury that if they et seg. See, also, 1 Crim. Law Mag. have a reasonable doubt of the defend- 445. ant's sanity, they must find him inVOL. I.–6


have continued, unless the contrary be proved, down to the time Insanity to of the act. It is otherwise, however, when the proof is be inferred of temporary or spasmodic mania, or of delirium tremens.duct. Evidence, therefore, of prior insane conduct and declarations may be received on a trial for an act alleged to have been insane;" and so may that of subsequent attacks of derangement," if connected in system with the defendant's condition at the time of the offence. Attempt at suicide is one of the incidents from which insanity may be inferred.?

§ 64. As facts from which insanity may be inferred, it is admissible to prove epilepsy, cerebral peculiarities, and anomalies

1 Whart. Cr. Ev. 2 730; 1 Jarm, on v. Com., 2 Va. Cas. 132, 1820; U. S. Wills, (2d Am. ed.) 65; 1 Whart. & v. Sharp, 1 Pet. C. C. 118, 1815; McAlSt. Med. Jur. 22 61-4; R. v. Stokes, lister v. State, 17 Ala. 434, 1849; 3 C. & K. 185, 1850; R. v. Layton, 4 McLean v. State, 16 Ala. 672, 1848; Cox C. C. 149, 1850; Cartwright v. Lake v. People, 1 Parker C. R. 495, Cartwright, 1 Phil. Eccl. R. 100; Hoge 1854; State v. Mewherter, 46 Iowa, v. Fisher, 1 Pet. C. C. 163; Hix v. 88, 1877. Insanity of the prisoner, at Whittemore, 4 Metc. 545, 1842; State the instant of the commission of the v. Spencer, 21 N. J. L. (1 Zab.) 196, offence, can only be established by 1849; State v. Huting, 21 Mo. 464, evidence tending to prove that he 1855 ; State v. Brinyea, 5 Ala. 241, was insane at some period before 1843; State v. Stark, 1 Strobh. 479, or afterward. People v. March, 6 1846; State v. Wilner, 40 Wis. 304, Cal. 543, 1856 ; State v. Davis, 27 S. 1876; State v. Reddick, 7 Kans. 143, C. 609, 1888. 1871. See Webb v. State, 5 Tex. App. 5 See 1 Whart. & St. Med. Jur. & 596, 1878, where it was held that 378; People v. March, 6 Cal. 543, 1856. stronger proof of insanity would be 6 Com. v. Pomeroy, 117 Mass. 143, required as a ground of irresponsibil- 1875. ity than would be required to relieve ? An attempt to commit suicide is from a contract. State v. Lowe, 93 not, of itself, evidence of the fact of inMo. 547, 1887; Montgomery v. Com., sanity, and raises no legal presump88 Ky. 509, 1888; Langdon v. People, tion thereof, but may be considered 133 Ill. 382, 1890; Armstrong v. State, by the jury with all the other facts 30 Fla. 170, 1892.

and circumstances bearing on the 2 Ibid.; State v. Reddick, 7 Kans. question of insanity. Mercur, J., in 143, 1871; Lewis v. Baird, 3 McLean, Coyle v. Com., 100 Pa. 573, 1882. 56, 1849; People v. Francis, 38 Cal. 81 Whart. & St. Med. Jur. 2% 422, 183, 1870. See U. S. v. Guiteau, 1 470. See Laros v. Com., 84 Pa. Mackey, 498, 1882.

200, 1877; State v. George, 62 Iowa, 3 State v. Sewell, 3 Jones Law, (N. 682, 1883, citing 1 Whart. & St. Med. C.) 245, 1855. People v. Francis, Jur. & 470; Fogarty v. State, 80 Ga. supra; State v. Reddick, supra. 450, 1888; People v. Smiler, 125 N.

• Whart, on Cr. Ev. & 731 ; R. v. Y. 717, 1891; Lovegrove v. State, 31 Haswell, R. & R. 458, 1818; Com. v. Tex. Cr. 491, 1893. Brayman, 136 Mass. 438, 1883; Vance

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