was doing, or if he did, that he did not know it was wrong. Then with regard to the third of these rules, we find that in one case it was held that the defendant in a criminal case is not required to prove his insanity but merely to create a reasonable doubt on the point, whereupon the burden of proving his sanity falls on the State. It is scarcely necessary to add anything with reference to the preferability of the first of these rules. The excellence of the rule that it is incumbent upon the State to prove the guilt of an accused person has never been questioned. It would be clearly unjust to throw the burden of establishing innocence upon a person accused. The difficulty of meeting a broad assertion would be too great, and there is common fairness and reason in making those who impeach what is supposed to exist, viz., innocence, produce some evidence of the truth of their assertion. But the case is very different in relation to sanity and insanity. Here every man is presumed sane. Sanity is the normal condition of each man, and it is the departure from what is common that must be proved. Again, as to the question of proof beyond reasonable doubt, it may be remarked that such evidence is necessary upon the same clear general principles. It is true that doubt of guilt is to be in favor of the prisoner, but that is because of the presumption of innocence: on the other hand, as the presumption is in favor of sanity, if there is only a doubt in the mind of the jury, their uncertainty ought to be decided in the direction of the presumption, viz., in favor of sanity, and hence the demand that in all cases the mental disease must be made out to the jury beyond reasonable doubt. We cannot but regard the English law upon this point as satisfactory, and the American decisions as fatally false, both upon the principles of law and the principles of philosophy. It has always occurred to us that the numbers of decisions which can be quoted on almost any point from American books and reports indicates not only the

State v. Lawrence, 57 Maine, 574. See also State v. Hundley, 46 Mo. 414; State v. Klinger, 43 Mo. 127; Com. v. Heath, 11 Gray, 303; People v. Coffman, 24 Cal. 230; Com. v. Eddy, 7 Gray, 583; Fisher v. People, 23 Ill. 283.

2

Bradley v. State, 31 Ind. 492. See also State v. Jones, 50 N. H. 369, Smith v. Com., 1 Duvall, (Ky.) 224.

varying practice of different States, but a want of due caution. and consideration on the part of many of their Judges of the cases which have actually been decided, and of the principles upon which these decisions were based. We say this at the same time that we entertain a deep respect for many of the Judges, and a thorough admiration of the work they are doing, as well as of the text-books that are being produced.'

2521. Jury may Judge of the Prisoner's State of Mind. In very many cases of insanity, ordinary common sense people are in quite as good a position to form an accurate and judicious opinion in relation to the sanity or insanity of another as medical men, and it has struck a good many lay readers-who have remarked upon it to us-that when medical men are put into the box, and when having given an opinion as to the mental unsoundness of an individual, they are asked to state the grounds of their opinion, they give reasons of precisely an analogous nature to those which would be given by ordinary persons, saying, "No one but an insane man would have said so and so," ," or "No sane man would have behaved in such a way," and the like. There is a good deal of truth in this, but at the same time there are cases in which the experience of experts can be made of real use, just as there are cases in which the jury are in a position themselves to come to a conclusion with regard to the soundness or unsoundness of the mind of an accused person. This is allowed in our courts. Thus a party having been indicted for the misdemeanor of uttering seditious words, and upon his arraignment refusing to plead and showing symptoms of insanity, and an inquest being forthwith taken under 39 and 40 Geo. III., c. 94, s. 2, to try whether he was insane or not, it was held, first, that the jury might form their own judgment of the present state of the prisoner's mind from his demeanor while the inquest was being taken, and might thereupon find him to be insane, without any evidence being given as to his present state, and it was further held that upon his showing strong symptoms of insanity in court during the taking of the inquest, it became unnecessary to ask him whether he would cross-examine the witness or would offer 'See § 520 a in Addenda.

BR. INS.-42

any remark on the evidence.' But in relation to this it must be remembered that insanity, so as to deceive unskilled eyes, can be feigned with very great facility. A glance at some of the instances of successfully simulated disease will show that in many cases it would be inexpedient to trust to the observation of the jury upon the trial, just as it would be unwise to place much reliance upon the evidence of facts gathered at a single interview. It is only through a course of observation that the simulation can be detected.2

8 522.

3

Procedure on Trial of Issue of Sanity or Insanity. Where a jury is empanelled to try whether a prisoner is insane or not at the time when he is brought to plead to an indictment, the counsel for the prosecution is to begin to call his witnesses to prove the sanity of the prisoner. But where a jury is enpanelled at the instance of the counsel for a prisoner to try whether he is insane or not when he committed the crime, the proof of insanity is incumbent on his counsel. A grand jury has no authority by law to ignore a bill for murder on the ground of insanity: it is their duty to find the bill, otherwise the Court cannot order the detention of the party during the pleasure of the Crown, either on araignment or trial, under 39 and 40 Geo. III., c. 94, ss. 1 and 2. In all cases the insanity of an accused person is a question for a jury, and in a case where a bill had been found against an insane prisoner for murder-he having been removed by order of the Secretary of State to the County Asylum-and where the medical superintendent of the asylum had made an affidavit that he was in a hopeless state of insanity, the Court nevertheless required the lunatic to be brought up and his alleged insanity to be inquired into by a jury. It would not, however, compel the production of the lunatic or the inquiry by the jury if it appeared that it would be dangerous to bring him into court."

Reg. v. Goode, 7 A. & E. 536. See Reg. v. Dwerryhouse, 2 Cox. C. C, 446.

* See chapter on Feigned Insanity.

Reg. v. Davies, 6 Cox C. C. 326; 3 C. & K. 328.

Reg. v. Turton, 6 Cox C. C. 385.

5 Reg. v. Hodges, 8 C. & P. 194.

Reg. v. Dwerryhouse, 2 Cox C. C. 446.

2523. Proof of Insanity: Hereditary Tendency.-There is scarcely anything in connection with the proof of insanity which can be regarded as at all unique. Many of the questions of proof will be discussed when we come to speak of medical experts, and there is only one question which it is important to consider in this place, and that is, the admissibility of evidence of hereditary predisposition where the sanity or insanity of a prisoner is in question. In speaking of the causes of insanity, we have had occasion to refer to the influence of disease in ancestors upon the health of descendants. We have seen that in most cases of insanity the disease has a pedigree, and that in all cases it is of the utmost importance to diagnosis, prognosis, and treatment, to understand the real antecedents of the patient; and any study of the antecedents of the patient would be thoroughly defective without some knowledge of the antecedents of those who went before him. Now, it being proved by science that the inquiry into hereditary predisposition is the best means of arriving at a conclusion as to the sanity or insanity of the accused, or at least of confirming an opinion as to such sanity or insanity, is it right that law should prevent such proof in the trial of an issue? It was said by a Scotch Judge that the inquiry was into the sanity or insanity of the accused, and not as to the mental condition of any of his relations; and he might have added with perfect truth, that the proof of the mental unsoundness of all the panel's relatives would not establish the fact of his insanity. But there are two kinds of evidence: the one direct, and the other indirect-the one establishing, the other confirming. The latter is insufficient without the former, but the former is often insufficient without the assistance of the latter. Scotch Judge, it might be said, whether a man was drunk or not. that is the question, and not whether he had been drinking; but if you can show that he had drunk a large quantity of stimulants, this proof, added to evidence of conduct which of itself might be insufficient to prove intoxication, will go far to show he was drunk. And such proof is clearly admissible. So in a bastardy case, the question is as to whether this man, who denies it, is the father of this child. All the

Thus, in answer to this suppose the question is Here it is evident that

courtship of the mother in the world will not prove him to be the father, but it is a kind of evidence which is held to confirm the truth of the mother's oath. Now, it is exactly in this way that proof of hereditary predisposition should, in our opinion, be allowed in a court of law. No proof of predisposition, the jury ought be warned, is sufficient of itself to prove that the accused person is insane, but where there is some proof of insanity, evidence of the existence of disease in other members of the family ought to be admitted, and ought to be taken for what it is worth.

2 524.

Proof of Hereditary Predisposition: Rule of Law. There seems to have been an opinion in England up to very recent times that such evidence was inadmissible,' and in Scotland the rule has been repeatedly laid down. Thus, in Gibson's case,' evidence that the maternal aunt of the panel had been afflicted with insanity was held to be inadmissible in support of a plea of insanity. In another case, the counsel wanted to show that the paternal uncle of the prisoner died insane, and was not allowed to do so. And in another earlier case, the same rule was laid down. The fact that in these cases this kind of evidence was disallowed is somewhat curious when taken in connection with a case in which the charge was child-murder, and where it appeared that the body found had six toes on each foot, the prosecutor was allowed to ask a medical man whether any of the accused's family had extra toes." Why that question should have been allowed, and questions as to the insanity of relatives be held inadmissible, it is impossible to see. This was a question of hereditary tendency in the same way that insanity is, but the inference to be drawn from the malformation of the feet of any of the members of the family of the accused was not nearly so direct nor so strong as that from

1 Shelford on Lunatics, 59.

2 High Court, 23d Dec., 1844; 2 Broun, 332, at 347. See also Walker v. McAdam, 8th March, 1806; 13 Fac. Col. 548.

3 Lord Advocate v. J. Brown & G. Brown, (Perth,) 25th April, 1855; 2 Irvine, 154. See also Dingwall's Case, (Aberdeen,) 19th and 20th Sept., 1867, 5 Irvine, 466. Malcolm McLeod's Case, (Inverness,) 14th April, 1838, 2 Swin. 88, and Bell's notes, 5.

5 Thompson (High Ct.) 4th Dec. 1848, Shaw, 129.