Boswel! v. State. istration of poison, each supplies the presumption which, unexplained, is proof of the intent or malice aforethought which stamps the homicide as murder. Proof of the killing and the manner of it accomplishes the purpose of establishing the factum or act, and the felonious intent or formed design with which it is done, unless, in the testimony which proves the act, or in some other proof, the offence is extenuated or excused. The common-law definition of murder declares that the malice which characterizes its bad eminence may be implied as well as expressed. So, one found in possession of goods, proven to have been recently stolen, is presumed to be the thief, until explanation of his possession is given. Many statutes which create offences out of certain acts, unless certain conditions exist, cast on the accused the duty of excusing himself by proof of the required conditions. In this class are the offences of carrying deadly weapons concealed about the person, and retailing spirituous liquors without license. So, then, there are cases in the law where one material element of a crime is inferred from the proof which establishes the other, if there be before the jury only the testimony which establishes that other fact. We imagine, also, there is a distinction and a difference between the constituent facts which make up a given crime, murder, for example, and which facts are common to every case within the class, and those occasional or exceptional questions of fact which do not necessarily belong to the class, but may be termed the accidents of the case. That a reasonable creature in being was killed; that the prisoner on trial was the agent or manslayer, and that he did the act with malice aforethought, express or implied, are facts necessary to be shown in every successful prosecution for murder. To this extent, and to each of these constituent, indispensable elements, the burden rests with the State to prove their existence beyond a reasonable doubt. The presumption of innocence, in which all men are primarily panoplied, follows and guards them through all the stages of the trial, until these uniformly constituent facts are established. The law, in its firm, yet conservative morality, declares that all men who have attained to years of discretion are presumed to be of sound mind; and without any proof of that fact, resting securely in the presumption of sanity, it adjudges the offender shall suffer its penalties. But there are persons of mature years whose minds are so diseased as that they are incapable of discriminating between right and wrong; and this defence is set up in avoidance of the facts which otherwise stamp the prisoner as a murderer. We here enter the field of the exceptional, the accidental; and inasmuch The Authorities Reviewed. as the law presumes sanity, that presumption, like that of innocence, should prevail throughout the trial until it is overcome. And whether the evidence of insanity arise out of the testimony which proves the homicide, or is shown aliunde, reason and analogy alike declare it is insufficient until it overturns the presumption of sanity. In Commonwealth v. Eddy,1 the court said: "The burden is on the Commonwealth to prove all that is necessary to constitute the crime of murder. And, as that crime can be committed only by a reasonable being- a person of sane mind- the burden is on the Commonwealth to prove that the defendant was of sane mind when he committed the act of killing. But it is a presumption of law that all men are of sane mind; and that presumption sustains the burden of proof, unless it is rebutted and overcome by satisfactory evidence to the contrary. In order to overcome this presumption of law and shield the defendant from legal responsibility, the burden is on him to prove to the satisfaction of the jury, by a preponderance of the whole evidence in the case, that, at the time of committing the homicide, he was not of sane mind." Pennsylvania stands unmistakably committed to the same doctrine.2 The opinion is both able and philosophic. Says AGNEW, C. J.: “Insanity is a defence. It presupposes the proof of the facts which constitute a legal crime, and is set up in avoidance of punishment. Keeping in mind, then, that an act of wilful and malicious killing has been proved, and requires a verdict of murder, the prisoner, as a defence, avers that he was of unsound mind at the time of the killing, and incapable of controlling his will; and, therefore, that he is not legally responsible for his act. Soundness of mind is the natural and normal condition of men, and is necessarily presumed; not only because the fact is generally so, but because a contrary presumption would be fatal to the interests of society. No one can justly claim irresponsibility for his act contrary to the known nature of the race of which he is one. He must be treated, and be adjudged to be a reasonable being, until a fact so abnormal as a want of reason positively appears. It is, therefore, not unjust to him that he should be so conclusively presumed to be until the contrary is made to appear on his behalf. To be made so to appear to the tribunal determining the fact the evidence of it must be satisfactory, and not merely doubtful, as nothing less than satisfaction can determine a reasonable mind to believe a fact contrary to the course of nature." To the same effect are State v. Smith,3 People 17 Gray, 583. 2 Ortwein v. Commonwealth, 76 Pa. St. 414. 3 53 Mo. 267. Boswell v. State. 4 2 v. McDonnell,1 State v. Lawrence, Leoffner v. State,3 State v. Starling, State v. Felter,5 McKenzie v. State.6 Mr. Wharton, in his work on Homicide, classes New York among the States that hold insanity is a defence, the affirmative proof of which rests with the defendant. The question, we think, is somewhat unsettled there.8 There are respectable authorities to the contrary, but we decline to follow them. We hold then that insanity is a defence which must be proven to the satisfaction of the jury by that measure of proof which is required in civil causes; and a reasonable doubt of sanity, raised by all the evidence, does not authorize an acquittal. The doctrine we have been combatting is, we think, purely American; and we regard it as an erroneous application of the principle of presumed innocence. One disputable presumption should not be allowed to override and annihilate another. Under the rules above declared the entire affirmative charge of the Circuit Court is free from error. Of the charges asked by defendant, those numbered 1, 2 and 3 were abstract, there being no evidence to support them; those numbered 4, 5, 6, 10, 11, 12, 13, were all rightly refused under the principles we have declared above; charges 6, 7 and 8 were calculated to mislead the jury, if they were not abstract, and were rightly refused; the two charges given at the instance of the prosecution are free from error; and the judgment of the Circuit Court must be affirmed. It is, therefore, ordered and adjudged that, on Friday, the eleventh day of June, 1880, the sheriff of Talladego County execute the sentence of the law, by hanging the said George Boswell by the neck until he is dead. BRICKELL, C. J., dissenting. 1 47 Cal. 134. 2 57 Me. 574. 3 10 Ohio St. 599. 4 6 Jones N. C. 366. 5 32 Iowa, 50. 626 Ark. 332; Wharton on Hom., sect. 665; 2 Greenl. Ev., sect. 373. 7 Sect. 666. 8 Flanagan v. People, 52 N. Y. 467. Right to Open and Close. BURDEN OF PROOF-RIGHT TO OPEN AND CLOSE. STATE v. FELTER. [32 Iowa, 49.] In the Supreme Court of Iowa, June Term, 1871. The defence of insanity must be established by proof satisfactory 2. Right to open and Close - Practice. In a criminal trial, where the defence is insanity, the prisoner is not entitled to open and close. APPEAL from Linn District Court. Indictment for murder. The case was tried before and the judgment of conviction reversed. Upon his second trial the prisoner was convicted of murder in the second degree, and sentenced to the penitentiary for life. He again appeals. 1. M. Preston & Son, for the appellant. H. O'Conner, Attorney-General, for the State. COLE, J. The defence was grounded mainly upon the alleged insanity or monomania of the defendant. His counsel asked that they be allowed the opening and closing argument to the jury. The refusal to grant this constitutes the third assigned error. It was necessary for the State to prove both the killing and the malicious intent. The former was not controverted, but the latter was denied; and for the proof of the denial the defendant endeavored to show that he was so mentally deranged at the time as to be incapable of entertaining the malicious intent. The intent was therefore not admitted, but was left for the State to establish by proof. Hence, it was not error to refuse defendant's counsel the opening and closing argument to the jury.2 The defendant asked the court to instruct: "If the jury entertair, from the evidence, a reasonable doubt as to criminal intent, or as to whether the defendant was of sound mind and discretion, the defendant is entitled to the benefit of that doubt, and your verdict should be 'not 1 State v. Felter, 25 Iowa, 67. 2 Loeffner v. State, 10 Ohio St. 598. State v. Felter. guilty; "" which the court refused. Instead thereof, the court instructed the jury: "It is not necessary, in order to acquit, that the evidence upon the question of insanity should satisfy you, beyond all reasonable doubt, that the defendant was insane; it is sufficient, if, upon consideration of all the evidence, and the facts, and circumstances disclosed by the testimony, you are reasonably satisfied that he was insane. If the weight or preponderance of the evidence shows the insanity of the defendant, it raises a reasonable doubt of his guilt." The refusal of the one and the giving of the other is the fourth assigned error. It is not disputed that the current and weight of authorities are in accord with the instruction as given by the court, and in our opinion it has also the support of reason, humanity, and public policy. Formerly the rule was that where an accused relied upon the defence of insanity, it was incumbent upon him to prove his insanity beyond a reasonable doubt. Many cases, however, state the rule substantially as it was given by the District Court in this case.2 4 The appellant's counsel rely upon People v. McCann,3 and Hopps v. People, in support of the instruction as asked by them. The first case 5 does not support that view, but does support the view taken by the court. BOWEN, J., who wrote the leading opinion of the court in that case, says: "It is also a rule, well established by authority, that where, in a criminal case, insanity is set up as a defence, the burden of proving the defence is with the defendant, as the law presumes every man to be sane. But I apprehend that the same evidence will establish the defence which would prove insanity in a civil case. The rule requiring the evidence to satisfy the jury beyond a reasonable doubt is one in favor of the individual on trial charged with crime, and is applicable only to the general conclusion, from the whole evidence, of guilty or not guilty." The case of Hopps v. People was decided by a majority opinion, Mr. Justice WALKER dissenting, and is directly in conflict with the previous unanimous holding of the court in Fisher v. People. We also find that a majority of the Supreme Court of Indiana sustains the 1 State. Spencer, 21 N. J. (L.) 196; State v. Brinyea, 5 Ala. 241; People v. Myers, 20 Cal. 518; State v. Huting, 21 Mo. 477; 1 Whart. Am. Cr. Law, par. 55. 2 Loeffner v. State, 10 Ohio St. 598; Fisher v. People, 23 Ill. 283; Com. v. Kimball, 24 Pick. 366; Com. v. Rogers, 7 Metc. 500; Graham v. Com., 16 B. Mon. 589; Bonfanti v. State, 2 Minn. 123; State v. Starling, 6 Jones, 4 31 Ill. 385. 616 N. Y. 58. 623 Ill. 283. See, also, Chase v. People, 40 Id. 352, explaining the Hopps Case. |