Passion and Revenge. act for which she is indicted was the direct offspring of such insanity. This being shown, responsibility is annulled, but not otherwise." To this instruction defendants excepted, the parts objected to are in italics. It is conceded that the first paragraph objected to was borrowed from the rule suggested by this court in State v. Felter,1 and that it is almost a literal copy thereof, with the addition of the words, "or revenge" after the word passion. Whilst no objection is made to this rule in a proper case, it is claimed that the facts in the case of State v. Felter and in this case are so essentially different as to render a rule, which would be entirely safe and proper in one case, equally unsafe and improper in the other. It is urged that the rule has no application to any theory of either the prosecution or the defence. It is insisted that the State claims that the assault was the consummation of a deliberate plan formed by three rational beings, to take the life of Wright. Whilst the defence claims that it was the outgrowth of an insane delusion on the part of Elmira, that he had locked her in a school-house and attempted her ruin. We are unable to see wherein the instruction is not pertinent to the case. The defence claimed that Elmira, at the time of the commission of the act, was laboring under such insane delusion, impelling her to the act, and overcoming her will, that she is not responsible for her conduct. It was incumbent upon the court to distinguish between insanity and mere passion or revenge, and to instruct the jury that the latter, though it may for a time have driven reason from its seat, would furnish This portion of the instruction must be taken in connection with that which immediately follows, in which the court says: "The practical question for you to determine from all the evidence, is whether passion and revenge or insanity was the ruling force and controlling agency which led to the commission of this act." no excuse. From all the circumstances disclosed the jury were warranted in finding that Elmira was actuated by a spirit of revenge, or was thrown into a violent passion, because Wright would not listen to her expostulations, and was determined to change his boarding place, and if she allowed this feeling of passion or revenge to so take possession of her mind as to impel her to an act of violence, she is still responsible therefor, if her act was the outgrowth of her passion or revenge and not of her insanity. The next paragraph objected to is a literal quotation from State v. Felter,2 But it is claimed that the question of its correctness was not Bradley v. State, before the court, and that the language can only be considered as dicta. We think the paragraph cannot be regarded as mere dicta, and further, that it is not fairly vulnerable to the criticism made upon it. It is claimed that the rule here recognized casts upon the defendant the burden of proving by substantive testimony, not only that she was insane, but that the act for which she was indicted was the direct offspring of such insanity. This is not, we think, the fair construction to be placed upon this paragraph, when taken in connection with the whole instruction. It means only that, from all the facts and circumstances of the act, as disclosed by the testimony, if defendant would claim exculpation on the ground of insanity, it must be made to appear that she was insane, and that the offence was the offspring of such insanity. Instances are numerous in the works upon medical jurisprudence, in which the mind respecting some particular matter rests under a peculiar delusion, and with respect to all matters having no connection therewith, appears perfectly sane. Whilst such a person could not be regarded as sane, yet he would be criminally responsible for his acts, unless they could be attributed to his particular delusion. IV. The evidence as to the sanity of Elmira was conflicting, and it does not warrant us in disturbing the verdict which found her sane. The jury was fully warranted in finding that Mary Stickley was present, and that she aided, abetted, and encouraged the assault. No error is apparent in the record. Affirmed. TEST OF INSANITY - UNDERSTANDING AND WILL-BURDEN OF PROOF REASONABLE DOUBT-DRUNKENNESS-HEREDITARY INSANITY-BOOKS OF SCIENCE-EXPERT-COMPENSATION. - BRADLEY V. STATE. In the Supreme Court of Indiana, November Term, 1869. 1. Test of Insanity - Understanding and Will. — Insanity may destroy either the understanding or the will. An instruction, therefore, which limits the inquiry of the jury to the condition of the power to apprehend by the understanding, is erroneous. Syllabus and Facts. 2. Burden of Proof. Where there is a reasonable doubt of the prisoner's insanity adduced by him, the burden of proving his sanity falls on the State. 3. Reasonable Doubt defined. 4. Voluntary Drunkenness is no excuse for crime; but insanity produced by continued intoxication is. 5. Evidence - Hereditary Insanity. - Where there is no evidence of the prisoner's insanity, evidence of the insanity of his relatives is irrelevant. 6. Books of Science are not admissible in evidence. 7. Expert-Compensation. The evidence of an expert should not be discredited merely because he expects to have his expenses paid by the party calling him. APPEAL from the Switzerland Circuit Court. J. W. Gorden, W. W. O'Brien, S. Carter, H. A. Downey, and J. A. Works, for appellant. D. E. Williamson, Attorney-General, for the State. RAY, J. Cincinnatus Bradley, the appellant, was indicted for murder in the first degree. He changed the venue from before the judge on account of alleged bias and prejudice. A judge of another circuit was called by Judge BERKSHIRE to try the cause. A jury found the defendant guilty of murder in the second degree, and that he be sentenced to the penitentiary during life. Motion for a new trial overruled, motion in arrest of judgment overruled; judgment on the verdict. The evidence shows that the defendant and the deceased were, on the 20th day of September, 1868, living with their families in different parts of the same house, which was owned by the defendant; that no serious quarrel or ill feeling had ever existed between; that deceased was sitting in the yard, smoking and reading, while the defendant was engaged in driving hogs out of the yard, in doing which he became greatly enraged; and, after knocking one of the hogs down with a boulder, and throwing it over the river bank, he went into the house, declaring his intention to get his pistol and shoot the deceased; that he came out with his pistol, and deceased was seen with his stool in his hand, coming towards the house; and that when deceased was from fifteen to thirty yards from the porch, the defendant fired from where he stood on the porch, the ball hitting deceased in the right side of the chest, penetrating the lungs, and inflicting a severe and dangerous wound. The deceased fell when the shot was fired. The evidence is conflicting as to whether his lower extremities were paralyzed by the wound or not- some witnesses say that they were, and others that they were not. After the shot the defendant offered to assist the wife of the wounded man to carry him into the house, saying that he had shot him, and was sorry for it. But the wife refusing to let him assist, he said he Bradley v. State. had shot him, and was glad of it. The defendant and his wife then started with their child to the river, and endeavored to get across, first on the ferryboat, and, on being refused a passage, then by taking a skiff that was lying on the shore; and after putting his wife and child into it and trying to push off, he was prevented by those present, and said that he had done what he had to the deceased in self-defence; and that he did not want to be arrested on Sunday; and if they would let him go to Kentucky he would return the next day and answer for what he had done. Upon returning to his house, he was arrested, and the pistolone of Sharpe's patent, four-barrelled pistols-taken from him, three barrels being loaded, one empty, and a bottle of whiskey about half full. After his arrest he made an effort to get away, caught the sheriff by the beard, and struggled with him. When at the magistrate's office, he asked the officer who had charge of the pistol for it, for the avowed purpose of getting the barrel from the stock and throwing it away. Afterwards he spoke of being admitted to bail in some small amount, and of his ability to give it; and while in jail he made an offer of eight thousand dollars to the sheriff, if he would not lock him up. This offer was in writing. He employed a physician to attend upon the deceased, and paid five hundred dollars; he employed and broke with several attorneys, to each of whom he agreed to pay not less than five hundred dollars. In the meantime, the deceased, being wounded severely, was carried first into his own house, where he remained several days; then he was carried to the house of Mr. Jennings, were he again remained some weeks, and seemed to be improving, when he was a second time removed, this time to the house of Mrs. Salinda Plew, from which time he grew worse until he died, about ten weeks after he was shot. Before his last removal his appetite was good, his wound closed, his limbs recovered their motion, and he seemed likely to recover. After his removal he grew worse, acute inflammation of the lungs setting in, resulting in suppuration, and finally in death. There was testimony tending to show that his death was caused by this inflammation, and not by the wound; and whether the shot or other causes produced his death, was a question fiercely debated upon the trial. The shot was inflicted, and the deceased died in Switzerland County. If the death should be found to have been caused by the wound inflicted upon the deceased by the defendant with the pistol, then the defence relied upon was, that he was insane at the time the fatal shot was fired, and consequently, incapax doli. Evidences of Insanity. The evidence adduced by defendant upon this point, stated in a very general way, tended to establish the following facts: 1. That his mother became and was insane for twenty years before her death, being at first wild and maniacal, but as she grew older becoming more quiet, and finally settling into a state approaching dementia, in which condition she died. The defendant was about ten years old when she became insane, and was thenceforth, until he was over twenty, in the almost exclusive company of his mother, who, in her fondness for him, was in the habit of taking him out on the banks of the river and spending whole days building houses for him of sticks. 2. That William Gray, the twin brother of defendant's mother, became insane, and for a long time sought opportunities to destroy his own life, in which, though often prevented by the vigilance of his relatives, he finally succeeded, by shooting himself to death. His insanity is traced to no known cause so far as the evidence discloses. 3. That defendant's sister- half-sister by his father was also insane, and when last heard from, confined in a lunatic asylum in Connecticut. Her insanity is not well defined, or rather is not characterized by the witnesses; but it was total and undoubted. 4. That Hugh Maupel, a cousin of defendant, had become insane in consequence of an injury inflicted by a horse tramping upon his head; but he subsequently, partially or wholly recovered. 5. That defendant himself, when a mere child, had been seized by some disease in the legs, which confined him for five or six years to his room and bed; and when he partially recovered the use of his limbs, he was seized with a disease of the spine, which resulted in a great and permanent curvature of the spinal column, and confined him to the house and bed until he was nearly or quite sixteen years of age; that his sickness had up to that time precluded all attempts to educate him, and, although upon recovery so far as to be able to go about, his father made great efforts to educate him, his mind was so weak and imbecile as to render them utterly unavailing; that his mind remained that of a mere child until after he was twenty years old; and that being now over thirty, he never has acquired any facilty in reading or writing. The evidence tends to show that for the last seven or eight years, and according to some of the witnesses, for ten, he had been a constant, habitual, and excessive drinker of alcoholic stimulants; and had been, in fact, during the seven or eight years immediately before the shooting, constantly drunk- an habitual drunkard. On this point there is almost no contrariety in the evidence. There is evidence tending to show that the small amount of mind he originally had, was, by this in |