condi

ment.

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 "Volunno 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?1 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 fol lowing conclusions:

Witness

may give

based on

(1) Non-experts as well as experts may be asked opinion whether in their opinion a party whom they had the observaopportunity to observe was at the time drunk.

tion.

(2) Such being the case, we must also hold that as to conditions equally patent to the lay mind-e. g., 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.

1 See State v. Johnson, 40 Conn. 143-4, 216, 1826, remarks by Parke, 136, 1873. J., and see infra, & 373.

21 Whart. & St. Med. Jur. ? 211. Roberts v. People, 19 Mich. 401, 1869; Rogers v. State, 33 Ind. 543, 1870; but see Choice v. State, 31 Ga. 424, 1861.

* See People v. Robinson, 2 Parker C. R. 235, 1884; Choice v. State, ut supra, cf. Pearson's Case, 2 Lew.

5 Whart. Cr. Ev. 417. See Com. v. Brayman, 136 Mass. 438, 1884.

Upstone v. People, 109 Ill. 169, 1883; State v. Lewis, 20 Nev. 333, 1889; State v. Leehman, 2 S. Dak. 171, 1891; Armstrong v. State, 30 Fla. 170, 1892; State v. Maier, 36 W. Va. 757, 1892; People v. Taylor, 138 N. Y. 398, 1893.

(4) As to hypothetical cases an expert' may be examined,2 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 are3 not specialists in psychological disease.

Defence

may be

taken by

the accused.

§ 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.5 To refuse this right to the guardian or friends of the accused would be to assume his sanity, which is the question at issue.

In some

jurisdictions plea is special.

Issue to be tried by

jury.

§ 57 a. In some jurisdictions the defence of insanity must be set up on a special plea."

§ 58. By the common law, if it be doubtful whether a criminal who, at his trial, in appearance is a lunatic, be such in truth or not, the issue is to be tried by the 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

8

1 Taylor v. State, 83 Ga. 647, 1889; Montgomery v. Com., 88 Ky. 509, 1889.

2 State v. Coleman, 20 S. C. 441, 1883; Gunter v. State, 83 Ala. 96, 1888; Kearney v. State, 68 Miss. 233, 1890.

People v. Lee Fook, 85 Cal. 300,

1890.

State v. Patten, 10 La. An. 299, 1855. See R. v. Pearce, 9 C. & P. 667, 1840.

5 R. v.

Pearce, 9 C. & P. 667, 1840. 6 Whart. Cr. Pl. & Pr. ? 429 a. Bac. Ab. "Idiot" (B); R. v. Ley, 1 Lewin, 239, 1823; 1 Russ. C. & M. 14. See 1 Hawk. c. 1, s. 4; R. v. Haswell, R. & R. 458, 1818.

An article on this topic by Prof. Ordronaux will be found in 1 Crim. Law Mag. 431 et seq.

8 Fost. 46; 1 Lev. 61; Russ. C. & 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.2

§ 59. If a party under sentence of death becomes insane after conviction, execution is to be deferred,3 and in some jurisdictions

1 See R. v. Prichard, 7 C. & P. 303, 305, 1836; s. c. 1 Lewin, 84

In Massachusetts, where one, having committed a homicide, was sent to the house of correction, pursuant to Stat. 1797, c. 61, s. 3, as a person dangerous to go at large, and was then tried for murder and acquitted on the ground of insanity, the court remanded him to the house of correction till he should be duly discharged. Com. v. Meriam, 7 Mass. 168, 1810. See Com. v. Braley, 1 Mass. 103, 1806; 13 Mass. 299, 1816; Com. v. Battis, 1 Mass. 95, 1806. But by the General Statutes it is provided that "when any person indicted for an offence is, on trial, acquitted by the jury, by reason of insanity, the jury, in giving their verdict of not guilty, shall state it was given for such cause; and thereupon, if his discharge or going at large is deemed manifestly dangerous to the peace and safety of the community, the court may order him to be committed to one of the state lunatic hospitals; otherwise he shall be discharged." Gen. Stat. c. 173, 17. See 7 Gray, 584, 1856; Rev. Stat. Mass. c. 138, s. 13. In the same State, in case of insanity, "the grand jury shall certify that fact to the court," and thereupon the court is re

quired to take order on the premises. Ibid. c. 136, s. 15. See Gen. Stat. c. 171, 15.

In New York, it has been judicially held that the test of insanity, when set up to bar a trial, is, whether the prisoner is mentally competent to make a rational defence. Freeman v. People, 4 Denio, 9, 1847. On a preliminary trial to determine whether the defendant is sane enough to make a rational defence, the defendant is not entitled to peremptory challenges; but challenges for cause may be made. Ibid. See as to statute, 1 Crim. Law Mag. 435.

In Pennsylvania, the revised act (1860) provides for a special verdict in case of insanity on a preliminary issue.

In Tennessee, under the statute, an analogous practice exists. Coldwell v. State, 3 Baxt. 418, 1869.

2 See Whart. Cr. Pl. & Pr. ¿ 429 a (9th ed.); Bennett v. State, (57 Wis.) 4 Crim. Law Mag. 378; Coldwell v. State, 3 Baxt. 418, 1869.

It has been held not error to require a defendant to plead "not guilty," in addition to his special plea of insanity. Long v. State, 38 Ga. 491, 1869.

Hale's Sum. 10; 1 Hawk. c. 1. ? 3; 4 Black. Com. 24.

Insanity after conviction defers execu

the issue in such case is referred to a jury for determination.1 It has been ruled in such case that evidence of the convict's mental condition at the time of the commission of 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."

Burden is on party

§ 60. By the common law, every man is presumed to be sane until the contrary be proved,3 and the better opinion is, that when insanity is set up by the defendant, it must be disputing proved as a substantive fact by the party alleging it, on whom lies the burden of proof. The finding of an inquisition of lunacy, which is admissible, shifts the burden."

sanity.

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

Conflicting theories as

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 otherwise proved, are to convict. This is expressed by Hornblower, C. J., as follows: "The proof of insanity at the time of committing the act ought to be as clear and satisfactory, in order to acquit him on the ground of insanity, as the proof of committing the act ought to be to find a

to amount of evidence

requisite to prove insanity.

1 See State v. Lane, 4 Ired. 431, 1843; State v. Hinson, 82 N. C. 540, 1880; State v. Vann, 84 N. C. 722, 1881.

2

Spann v. State, 47 Ga. 553, 1872.

In Pennsylvania, when insanity is set up as a bar to sentence, the question of a jury trial is at the discretion of the court. Laros v. Com., 84 Pa. 200, 1877.

3 Dacey v. People, 116 Ill. 555, 1886; Montag v. People, 141 Ill. 75, 1892.

* Whart. Cr. Ev. ? 336; R. v. Stokes, 3 C. & K. 188, 1850; R. v. Taylor, 4 Cox C. C. 155, 1850; R. v. Haswell, R. & R. 458, 1818; Atty.-Gen. v. Parnther, 4 Brown C. C. 409; R. v. Layton, 4 Cox C. C. 149, 1850; U. S. v. Lawrence, 4 Cranch C. C. 514, 1835; U. S. v. McGlue, 1 Curtis, 1, 1855; Com. v. Eddy, 7 Gray, 583, 1856; State v. Spencer, 21 N. J. L. (1

Zab.) 202, 1849; State v. Brandon, 8 Jones, (N.C.) 463, 1860; State v. Starke, 1 Strob. 479, 1846; State v. Brinyea, 5 Ala. 241, 1843; People v. Myers, 20 Cal. 518, 1861; Boswell v. Com., 20 Gratt. 860, 1871; Loeffner v. State, 10 Ohio St. 598, 1840; State v. Coleman, 20 S. C. 441, 1883; U. S. v. Ridgeway, 31 Fed. Rep. 144, 1887; Messengale v. State, 24 Tex. App. 181, 1887; Territory v. Calton, 5 Utah, 451, 1888; Rather v. State, 25 Tex. App. 623, 1888; State v. Reidell, 9 Houston, (Del.) 470, 1888; People v. Eubanks, 86 Cal. 295, 1890; Smith v. State, 31 Tex. Cr. 14, 1892; Moore v. Com., 92 Ky. 630, 1892; State v. Schaefer, 116 Mo. 96, 1893; People v. Bemmerly, 98 Cal. 299, 1893.

5 McGinnis v. Com., 74 Pa. 245, 1873; Wheeler v. State, 34 Ohio St. 394, 1877; Whart. Cr. Ev. ? 336.

sane man guilty.' Several English authorities are cited to the same effect.2

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; and is maintained in Maine; in Massachusetts; in Pennsylvania; 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; " in Louisiana; 18 in Texas; 19 in California; 20 in Iowa;21 in Idaho; 22 and in Arkansas.23