Notes. fourteen years ago, and was then carrying on business at Ramsgate. Two or three years after the marriage, however, he left that place, leaving his wife and child there behind him, and went to London, where he lived by the name of Southey Since then he had never seen his wife, or returned to Ramsgate. In the meantime, it appeared that he had become a marker at billiards, and he had formed a connection with a Mrs. White, and while this connection subsisted a year or two ago, he got her to go and see the Earl of Dudley, with a view to induce him to pay a large sum of money alleged by the prisoner to have been lost to him by the earl's brother at billiards. The demand was refused; the demand came before the police court, as an attempt to extort, or intimidate; and the prisoner, last year, wrote a long letter to a daily paper, containing a perfectly coherent history of his life, and an account of the particular matter. After this, shortly before the murder in question, Mrs. White left him and went to Australia; and the prisoner, who evidently resented this, went to her husband and got possession of her three boys - sons of theirs - and took them to a coffee-house, where he left them in bed, and where they were found dead next morning. This was the morning of the 9th of August. On the evening of that day, he went to Ramsgate disguised with false beard and moustache, and a pair of green spectacles, and provided with a pistol revolver, with five chambers, all of which were loaded with ball; and having found out where his wife lodged, managed to get access to her at the house of a friend, and desired to be alone with her. She, however, at first objected to this, and he then made an appointment with her for the next morning at the same house. He came there the next morning and for some time conversed sensibly; still, however, pressing her for an interview with her alone; but desiring that their child should be with them. This last was not acceded to, but his wife went with him alone, and they sat together nearly half an hour till the child came in. In five minutes afterwards, reports of fire-arms were heard, and it appeared that after shooting both his wife and child, he was taking off his disguise, when, before he had time either to reload his weapon or depart, he was seized by one of the witnesses until the police arrived. Under the body of deceased was found a copy of his letter, cut from the newspaper in which it appeared. When asked why he had done this deed, he said: "She is better off; had she lived, she would have had more trouble; for if I had returned to London, it would have been under sentence of death!" adding, "What have I left behind!" or "What have I done! Allusions which it was suggested referred to his murdering Mrs. White's three sons; evidence of which, therefore, was admitted to explain the allusion, and rebut the evidences of insanity, which it was intimated (as already suggested) would be set up. When before the magistrates, he read a long written statement, acknowledging that he had taken the children to the place where they were found; and throwing the "responsibility for his acts upon society," and upon, in particular, eminent persons whom he denounced, and to whom, it was to be recollected he had applied for pecuniary relief. While in prison he wrote several sensible letters, and sent a telegram to a friend as to his trial, which is in these terms: "My life is over; I shall have to justify myself from terrible charges. See I want her brother," etc. MELLOR, J., in summing up the case to the jury, said the first question for them was, whether the prisoner was in a fit state to be tried, or in such a state R. v. Southey. of mental incapacity as to be unable to comprehend the nature of the proceedings and the evidence against him. If so, then that finding would be recorded, and he would be remanded until he was able to take his trial. If he was sane now, then the question would arise, whether he was guilty of the crime of which he was charged. The defence set up for the prisoner was insanity. Not a sudden frenzy - not a sudden excess of homicidal mania or fury, but as was said, chronic and permanent insanity. Insanity now, and insanity then, insanity such as to disable him from knowing right from wrong. Now, was the defence sustained? It was for those who set it up to sustain it by evidence. By the law of England, every man was presumed to be sane until the contrary was shown. It would be most dangerous if it were otherwise, and when a person was to be saved from the consequences of his acts by this defence, it must be shown, from circumstances, or positive testimony, that the person at the time of the act was in such a state of mind, from disease, as to be unable to comprehend the nature and quality of his acts, and to know whether he was committing right or wrong. A man might have been brought up unhappily, his mind might be ill-regulated and ignorant; but these were accidental distinctions of which the law could not take cognizance. It was impossible to make all men equally moral or educated, and if these distinctions were to be regarded, there would be an end of the criminal law altogether. Commenting upon the evidence of the medical witnesses for the defence, the learned judge observed that, after all, the jury must give themselves up to such testimony, but must exercise their common sense and judgment upon it. Some medical men had theories about insanity which, if applied generally, would be fatal to society. Life could not go on if men who committed great crimes were to be deemed insane upon these theories. The standard of sense or responsibility they set up was far too high for common life and human society. And when medical men came and stated that, from seeing a man once or twice, they should say he was insane; and not only so, but that he was insane four months ago, the jury must exercise their common sense as to the grounds given for this opinion. The learned judge, in commenting on the medical evidence for the defence, observed that the medical witnesses admitted (with one exception) that the expressions of the prisoner, immediately before and after the fatal act, showed that he understood its nature and knew whether it was right or wrong. The learned judge also observed, that it appeared from the evidence for the prosecution, that hysteria was quite different from insanity, and that the general manner and demeanor of the prisoner while he had been in gaol showed good sense and sanity of mind. It was remarkable, he observed, that there was no evidence as to his insanity in any former period of his life. No one who had known him in his previous life said he was insane, or even regarded him as being so. And on the other hand, the gentlemen who had been in charge of the man from the moment of his apprehension to the present time, give positive evidence that he was perfectly sane. Such was the direct and positive evidence on the subject of the prisoner's insanity. He need not say that the opinion of persons who had observed a man for months was worth far more than that of those who went to see him once for the very purpose of giving evidence that he was insane. The jury must bear in mind that a man was presumed to be sane until the contrary was shown. And the jury could judge, in part, from their own observation of the prisoner's demeanor in the dock. So much, then, for the Notes. direct evidence upon the question. The case for the prosecution, however, rested a good deal upon the whole of the circumstances of the case, and especially upon the circumstances immediately surrounding the act in question. The jury were to consider whether these circumstances did not show that the man at the time he committed the deed, knew that he committed a crime. It was not enough that some amount or degree of insanity was shown. It must appear that the prisoner did not know that he was doing wrong. The learned judge then read and reviewed the general evidence in the case, pointing out the circumstances relied upon as showing design and deliberation, especially the design made use of. Up to that time the jury must consider whether everything was consistent with his being in the full possession of his senses. Upon the face of it, certainly, it looked as if he very well knew what he was about. The learned judge then came to the evidence as to the circumstances of the murder, particularly commenting upon the conversations with the prisoner. This, he observed, was all very material as to the sanity of the prisoner. The learned judge observed that the prisoner was seized immediately after the act, and, therefore, there was nothing in his not attempting to escape, as he must have known it was impossible, and so as to the avowal of the act, being taken in the act, how could he help acknowledging it. There were no proofs of insanity, and on the contrary, all the other circumstances of the act, seemed to show sanity. As to the motive of the act, the learned judge observed that no one could dive into the heart of a human being, or divine the secret motives of his actions. The absence, therefore, of all proof of a motive was not of the same weight as its presence. But here there was an allusion to his being under sentence of death for another murder which evidently meant the murder of the boys, for he said he referred to what "he had done behind," or "what he had left behind." Now, did the jury doubt that he knew he had done what the law regarded as a crime, the doom of which was death. It appeared that the prisoner just after the act was calm and collected, and the circumstances seemed to have shown great deliberation; and the statement he had written to read before the magistrates showed a consciousness that he had committed a crime. It was for the jury to say whether there was any evidence of insanity. No doubt it was a strange and extraordinary document; but was there not "method in the madness?" Did it not rather show an aim and purpose to mitigate and excuse his crime? And immediately after writing this account, there were letters, and messages, and a telegram, which seemed to show perfect sense. These were most material. These inquiries were most sensible and pertinent; did all this show any want of capacity to understand the charges against him? Notwithstanding all this, one medical man, and only one, said he was of opinion that he was not in a state to understand what was going on. But as to that, the jury must form their own judgment, and upon the whole evidence they must consider whether they were or were not satisfied that he was now in a state to take his trial; and if so, then they must consider the next and great question, whether at the time of the act he was or was not in such a state of mind as to make that act murder? Every act of wilful killing of a human being was prima facie murder, and it was murder unless the evidence showed that the man was not in a state to know that, in the eye of the law, what he did was a crime. Was there anything in the case to satisfy their minds that, at the time he did the act he did not know that it was wrong, and that it was a THE ENGLISH TESTS IN THE AMERICAN COURTS. 231 Alabama, California, Delaware. crime? If not satisfied of that, then (assuming that they came to a similar conclusion on this first question) they must find him guilty; if otherwise, then not guilty, on the ground of insanity. The jury first pronounced their finding, that the prisoner was now of sane mind, and then, they returned the general verdict of "guilty." Verdict guilty. Sentence, death. § 7. The English Tests in the American Courts. Of the four legal tests of insanity which we have seen have been adopted at different times by the English judges, viz.: (1) the "child" test; (2) the "wild beast" test; (3) the test of knowledge of right and wrong in the abstract, and (4) the test of knowledge of right and wrong as applied to the particular act, only the fourth has been adopted at any time by the courts of this country; but this test has been received with such favor as to be at present well settled as the law of such cases in a majority of the State courts and in the Federal courts. We shall, therefore, speak of this fourth test hereafter as the "right and wrong test," and, in the following sections, the States in which this test is maintained will be given in their order. § 8. Right and Wrong Test- Alabama. -The right and wrong jest is approved in Alabama. In a leading case on the subject it is said: "When the plea of insanity is interposed to protect one from the legal consequences of an act which amounts to a crime, to render the defence available, the evidence must be such as to convince the minds of the jury that at the time the act was done the accused was not conscious that in doing the particular act he was committing a crime against the laws of God and his country. If he knew right from wrong, and knew that he was violating the law, he is then guilty, for it is this conscious knowledge connected with the act that constitutes the crime." 2 § 9. California.- In California the test is whether the accused, at the time of committing the act, was conscious that he was doing wrong. An instruction, that if the jury find that the prisoner was insane at the time of the alleged murder, they should declare him not guilty without regard to the degree of insanity, is properly refused.' § 10. Delaware. - So in Delaware the test is the ability to comprehend the difference between right and wrong in respect to the very act with which he stands charged.5 1 In some of the cases where the fourth test is adopted, the language of the court would seem to imply that the third test was the one intended to be applied. But it is plain in the light of all the American adjudications that the third test is not law in a single State. 2 McAllister v. State, 17 Ala. 434 (1850), citing Com. v. Rogers, 7 Metc. 500; Clark v. State, 12 Ohio, 483; State v. Brinyea, 5 Ala. 241. 3 People v. McDonnell, 47 Cal. 134 (1873) ; People v. Coffman, 24 Cal. 230 (1864); People v. Hoon, 16 Cent. L. J. 57 (1883); People v. Hobson, 17 Cal. 424 (1861). 4 People v. Best, 39 C..1. 690 (1870). 5 State v. Danby, 1 Houst. Cr. Cas. 166 (1864); State v. West, 1 Houst. Cr. Cas. 371 (1873); State v. Brown, 1 Houst. Cr. Cas. 539 (1878); State v. Hurley, 1 Houst. Cr. Cas. 371 (1873); State v. Windsor, 5 Harr. (Del.) 512 (1851); State v. Dillahunt, 3 Harr. 551 (1840). Notes. § 11. - Georgia. - The same test prevails in the Georgia court.1 In an early case it was held that where it is admitted that the prisoner is neither idiot, lunatic or insane, it is not competent to prove that he is of weak mind. "All persons are considered by our code," it was said, "capable of committing crime who are neither idiot, lunatic nor insane, and who have arrived at the age of fourteen years, and before that age if they know the distinction between good and evil, and if capable of committing crime they are liable to be convicted upon their own confession. We cannot therefore recognize the distinction which is sought to be engrafted upon the law. It would lead to endless metaphysical discussion on the philosophy of the mind. Besides, experience teaches that in point of fact the cunning and crafty are much more likely to conceal and misrepresent the truth than those who are less gifted. It is the trite observation of all travellers that if you wish to learn the truth with respect to the health of a country, you must interrogate the children and servants about the matter." In Lloyd v. State, it was said: "We see no material error in the judge's charge on the subject of insanity. In one sense all crime is insanity. Indeed, in view of the awful responsibility of all of us to the judge of the quick and the dead, any sin is a sort of insanity. But as the judge justly said, society cannot afford to treat a man as insane because he has become so steeped in crime as to have stupified his conscience. The judge stated the rule of responsibility from the words of this court over and over again repeated, to-wit: Was the accused conscious he was doing wrong? Was his mind sound enough to judge of the right or wrong of his acts."4 § 12. and Maine.6 Kansas Maine. The right and wrong test is adopted in Kansas 5 § 13. Massachusetts. So in Massachusetts." In Com. v. Heath, tried in Massachusetts, in 1858, Francis E. Heath and Miriam G. Heath were indicted for the murder of their father, Joshua Heath, and tried at Lowell, at April term, 1858, before Justices DEWEY, METCALF and THOMAS. One question at the trial was, whether the defendants were of sufficient intelligence to be responsible for a homicide; and upon this point and the burden of the proof thereon, the court gave the following instructions in the charge then delivered by THOMAS, J.: If the jury are satisfied that a homicide was committed, and under such circumstances that, if done by a responsible agent, by one capable of committing a crime, it would be murder, either in the first or second degree, the only question remaining, and the important and vital question of the cause is "were the prisoners at the bar capable of committing the offence." The law presumes men and women of the age of the prisoners to be sane, to be responsible agents. Where, therefore, a homicide is proved to have been committed in such way and under such circumstances, as when done by a person of sane mind, would con 1 Roberts v. State, 3 Ga. 310 (1847); Brinkley v. State, 58 Ga. 296 (1877). 2 Studstill v. State, 7 Ga. 202 (1849). 3 45 Ga. 57 (1872). And see Humphreys v. State, 45 Ga. 190 (1872); Westmorland v. State, 45 Ga. 225 (1872); Choice v. State, 31 Ga. 424 (1860); 5 State v. Mahn, 25 Kas. 182 (1881). |