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.1 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.2 McDougal v. State, 87 Ind. 24, 1882. 1 People v. Garbutt, 17 Mich. 9, 1868. Mo. 173, 1880; and so in Indiana; In New York the tendency in the main is to sustain the distinctions of the text, and to hold that while a reasonable doubt as to sanity is sufficient to require an acquittal in all cases in which sanity is part of the case of the prosecution, yet, when insanity is set up by the defence for the purpose of establishing general non-accountability, and of placing the defendant under permanent sequestration as a dangerous lunatic, such insanity must 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, v. People, 88 N. Y. 81, 1882. These cases are considered in detail in Whart. Cr. Ev. 9th ed. ? 338. In Missouri the cases may be harmonized by the application of the above distinction. See State v. Hundley, 46 Mo. 414, 1871; State v. Klingler, 43 Mo. 127, 1869; State v. Smith, 53 Mo. 267, 1873; State v. Simms, 68 Mo. 305, 1878; State v. Redemeier, 71 34 La. An. 186, 1882; Wright v. People, 4 Nev. 407, 1868; State v. Crawford, 11 Kans. 32, 1873; People v. Waterman, 1 Nebr. 343, 1871; Webb v. State, 9 Tex. App. 490, 1880. See State v. Graves, 45 N. J. L. 203, 1883; Armstrong v. State, 30 Fla. 170, 1892; Revoir v. State, 82 Wis. 295, 1892; Hornish v. People, 142 Ill. 620, 1892; State v. McIntosh, 39 S. C. 97, 1892. § 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 cution. Coleman v. State, 20 S. C. 441, 1882. Supra, & 52. 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 the 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 sustained as a matter of fact, then the conclusion would have been, as a matter of law, that our quarrel was with the British government, and not with McLeod. But if the question of fact in such a case should be disputed, no one would claim that if there be reasonable doubt as to whether the defendant acted as the servant of a foreign government, he should be acquitted. What the jury would be told would be, "Here is a question of fact; if the proof satisfies you that a defendant was a British subject, and trial. In such a case the jury would not be told, " If you have a reasonable doubt you must find for defendant." What they would be told is, "If you decide that there is a preponderance of proof to the effect that the cases are the same, then you must so find; otherwise you must find that the cases are not the same." See Whart. Cr. Pl. & Pr. 8 483. In neither of the cases last mentioned does the question of guilt or innocence arise, and in neither case, if the defence be properly pleaded, would evidence to show either guilt or innocence 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-amenability 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 sane 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.1 § 63. When insanity of a permanent type is shown to have existed prior to the commission of an act, it will be inferred to sane. The only way to avoid this absurdity is to put the determination of the issue of insanity, when set up to bar amenability, on the same basis in criminal as that adopted in civil courts. In both courts the presumption is that persons coming into courts of justice are sane, and that the burden of proof is on the parties contesting such sanity. In criminal courts, as well as in civil, the rule should be that to take a particular person out of the category of reasonable and responsible beings, and to subject him to the sequestration and restrictions imposed by the law on adjudicated lunatics, at least a preponderance of proof of insanity should be required. 1 Walker v. People, 88 N.Y. 82, 1876, above cited, is an illustration of this danger. Walker was tried for abduction. Suppose he had been indicted for an assault, and suppose, as it has frequently been decided to be permissible, his relatives or friends, against his protest, had interposed the plea of insanity. We can imagine, in fact, many cases in which this might be a convenient way of disposing of an uncomfortable relative or neighbor. A defendant of this class finds himself, when tried for some minor offence, confronted by a plea of insanity interposed in his behalf. If the view here contested be the law, the judge would have in such case but one course open to him. He would be obliged to hear the evidence, no matter what might be the defendant's protestations; and, what is more, he would be obliged to tell the jury that if they have a reasonable doubt of the defend- 445. ant's sanity, they must find him inVOL. I.-6 The above argument is expanded by me in the Central Law Journal for May 23, 1884. The subject is discussed more fully in Whart. Cr. Ev. ?? 338 et seq. See, also, 1 Crim. Law Mag. 81 from con duct. 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.3 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,3 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. 2 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. 596, 1878, where it was held that stronger proof of insanity would be required as a ground of irresponsibility than would be required to relieve from a contract. State v. Lowe, 93 Mo. 547, 1887; Montgomery v. Com., 88 Ky. 509, 1888; Langdon v. People, 133 Ill. 382, 1890; Armstrong v. State, 30 Fla. 170, 1892. 2 Ibid.; State v. Reddick, 7 Kans. 143, 1871; Lewis v. Baird, 3 McLean, 56, 1849; People v. Francis, 38 Cal. 183, 1870. See U. S. v. Guiteau, 1 Mackey, 498, 1882. 3 State v. Sewell, 3 Jones Law, (N. C.) 245, 1855. People v. Francis, supra; State v. Reddick, supra. Whart. on Cr. Ev. 2 731; R. v. Haswell, R. & R. 458, 1818; Com. v. Brayman, 136 Mass. 438, 1883; Vance 5 See 1 Whart. & St. Med. Jur. 378; People v. March, 6 Cal. 543, 1856. 6 Com. v. Pomeroy, 117 Mass. 143, 1875. An attempt to commit suicide is not, of itself, evidence of the fact of insanity, and raises no legal presumption thereof, but may be considered by the jury with all the other facts and circumstances bearing on the question of insanity. Mercur, J., in Coyle v. Com., 100 Pa. 573, 1882. 81 Whart. & St. Med. Jur. 88 422, 470. See Laros v. Com., 84 Pa. 200, 1877; State v. George, 62 Iowa, 682, 1883, citing 1 Whart. & St. Med. Jur. 470; Fogarty v. State, 80 Ga. 450, 1888; People v. Smiler, 125 N. Y. 717, 1891; Lovegrove v. State, 31 Tex. Cr. 491, 1893. |