And must be Rebutted by Satisfactory Evidence.

The physicians testified that the subsequent stupor may have been the effect of excessive drinking, or of the concussion of brain from the shots in his scalp, or from the exhaustion resulting from his long chase.

The circumstances sufficiently attest that Kriel and wife had recently had disturbances; had divided their property, and that she had taken her clothes to the house of her sister, to which place he had followed her, armed with a deadly weapon, and that without any sudden provocation, or even irritating language on her part, he assaulted, shot, and killed her.

The rules of criminal law, especially as applicable to these facts, are few and simple, being founded in wisdom and experience, with a due regard to the protection of life and the preservation of society, yet humane and indulgent to the passions and frailties of human nature and the infirmities of the mind, when diseased and irrational from mental or moral insanity. It is universally written, by all authors on criminal law, that sanity is to be presumed; and this doctrine has always been upheld by this court, especially in the two leading cases of Graham v. Commonwealth and Smith v. Commonwealth.2 Therefore, when the State makes out an unlawful homicide with a deadly weapon, and identifies the accused as the perpetrator, it has shown all that is essential to conviction.

Necessary self-defence, or misadventure, or insanity, moral or mental, as an excuse, comes as a defence; and whilst irresponsibility because of insanity need not be shown beyond a rational doubt, yet as sanity is always presumed by law, this universal legal presumption must be rebutted by satisfactory evidence; that is, the jury must be satisfied from the evidence, whether produced by the one side or the other, that' the perpetrator of a homicide not in necessary self-defence, nor by mere unintentional accident, was irresponsibly insane when the deed was perpetrated; for evidence, merely raising a doubt as to mental soundness, would not be sufficient to repel the legal presumption of saneness; as this would be repelling a legal presumption by evidence raising a mere doubt or suspicion as to the mental condition.

It is the legal duty, therefore, of all juries to convict the perpretrator of an unjustifiable and prima facie, inexcusable homicide, unless the evidence rationally convinces them that, at the time of the killing, the perpetrator was laboring under such a state of mental aberration and disease as to deprive him of a knowledge of right and wrong; or if he knew this, still to take from him the moral power to resist his morbid inclination to its perpetration.

Kriel v. Commonwealth.

A mere doubt of sanity, however rational, is wholly insufficient to rebut this legal presumption, and can never be a justification to a jury to acquit; whilst on the other hand, if the preponderating evidence convinces them that the perpetrator was in such a mentally diseased condition as to destroy his free agency, they should not convict merely because they might entertain a rational doubt as to this.

The rational doubt of guilt, so humanely entertained by the criminal law as a cause of acquittal, has never been extended to defences of excuse because of mental or moral insanity; but after the State has made out her case, with the legal presumption of insanity in her behalf, this must be overcome by a preponderance in the prisoner's behalf.

A rational doubt as to whether a homicide had been committed, or as to the perpetrator, should very rationally lead to acquittal; because the law in its humanity should never permit a human being's life to be taken without the clearest evidence that a homicide had been committed, and that the accused was the guilty agent. But if acquittal should result from a mere doubt of sanity, then the legal presumption of mental soundness would amount to but little, if anything. A mere doubt of sanity has never entered as an element into that rational doubt which should produce an acquittal.

If, however, there be mental or moral insanity, however recent, to such an extent as to destroy free agency and moral responsibility, on being established by satisfactory evidence, this will excuse; because the law, in its enlightened benignity, will not punish an irrational and irresponsible being. Malice is an essential ingredient in murder; but this, too, is to be presumed from the violence and wantonness of the assault and character of the weapon used; hence whence sudden passion has been produced from reasonable cause, such as jostling, personal violence and other things, this has been deemed by the law, in its humanity, sufficient to repel the presumption of malice, and to palliate the offence to manslaughter; and our criminal code gives the prisoner the benefit of a rational doubt, as to which grade of offence has been committed.

So drunkenness from mere social hilarity, though wrong in the perpetrator, may be of such a character, and to such a degree, as to show that the mind was incapable of preconceived malice or intentional homicide, and reduce the homicide to manslaughter; but as this state of mind is superinduced by the wrongful act of the perpetrator, a due regard for the interest of society, and the personal security of every one, precludes it from being a satisfactory excuse, and an entire exemption from punishment. Indeed, if it appeared that intoxication

Kriel v. Commonwealth.

excited the animal passions and aroused a destructive propensity in the accused, why should even drunkenness, in such a case, be considered even a mitigating cause any more than the unchaining of a mad dog in the streets of a town, or the riding a vicious animal into a crowd, merely because the perpetrator had no particular malice at any one, or, indeed, expected death at all to ensue; yet, if by reason thereof, any one should lose his life, this recklessness is set down as malice toward mankind in general, and the perpetrator criminally responsible in the highest degree? But it is not essential that this should now be decided. Excuse, because of drunkenness, is at all times to be received with great caution, and because so easily perverted, and the danger so great of a revenge, for real or imaginary cause of pre-existing offence or malice, under such

cover.

And these are the true and essential doctrines as expounded in the two recited cases of Graham v. Commonwealth, and Smith v. Commonwealth, when properly understood and construed; for they are consonant with each other in premises and principle, but somewhat diverse in argument; yet the rules of law, as announced by this court, are identical. None of these wise and humane rules were violated in the instructions given on behalf of the State, but were essentially contravened in those given in defendant's behalf, and at the court's own instance, all of which, however, were greatly calculated to benefit him, whilst no possible injury could result to him; for under these instructions, the jury could not convict him at all, if they entertained a rational doubt as to his sanity; therefore, the finding is equivalent to saying he was sane beyond a rational doubt when the offence was committed. The case of Smith recited, was upon a sudden and unexpected broil; therefore the court said the instruction as to the presumption of malice from the possession and use of the deadly weapon, without reference to the other circumstances, or explanation of its possession, was misleading in his case. But here the husband followed the wife to her sister's house, armed with a deadly weapon, which he used without any immediate exciting cause; and he does not attempt to account for its possession by showing any necessity for self-defence or other reason. The instructions Nos. 4 and 5, given in this case in behalf of the Commonwealth, were not, therefore, misleading, but a true exposition of the legal presumptions from the facts.

There are other alleged errors; but on close scrutiny we have failed to discover any such to defendant's prejudice; and as the circuit judge, in his written opinion overruling the motion for a new trial, sufficiently responded to them we shall not notice them in detail.

State v. Lawrence.

The name of the deceased was alleged to be Barbara Kriel, the wife of the defendant. The evidence is that her name was Margaret. The name is, however, but descriptive, and when the person killed is also properly described as the prisoner's wife, and no objection to the evidence was made on that account, and no motion to withdraw it from the jury, and after conviction and judgment, we cannot suppose the misdescription of the given name, when placed in juxtaposition with the further description that she was his wife, could have misled him, or in any manner have prevented him from a fair trial, and therefore furnish no reversible grounds.

Wherefore being satisfied that the essential errors committed in this case were calculated to facilitate the finding of the prisoner either not guilty at all, or for manslaughter only, and all for his benefit, and when the law was more favorably expounded in his behalf than any elementary writer or decision of this court authorized, and notwithstanding which, he has been found guilty of murder in the first degree, we cannot, in the legal discharge of our duty, with a due regard to the security of society and prevention of crime, disturb the judgment.

1. Burden of proof on defendant. -To establish the defence of insanity, the burden is on the defendant to prove by a preponderance of evidence that at the time of committing the act he was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did, that he did not know he was doing what was wrong.

2. Partial Insanity, if not to the extent above indicated, will not excuse a criminal act.

The Facts of the Case.

Indictment for murder.

It appeared, on the part of the government, that Elmira Atwood had been living at the house of one Mrs. Marsh, on Hammond Street, Bangor, some four weeks prior to the murder; that the defendant Lawrence went there more or less; that on Saturday, January 1, 1870, he went there considerably intoxicated, conversed with Elmira Atwood, and called her by an opprobrious epithet, she answering, that if he called her that, she would make him prove it; whereupon he went away without any reconciliation taking place between them at that time; that on the next (Sunday) evening, he went there again; that he, living by himself on Main Street, and Mrs. Marsh having been in the habit of preparing food for him, handed her a little tin pail, and requested her to put up some hashed fish; that he asked Mrs. Marsh if she were alone; that Mrs. Atwood had gone into a little bedroom; that after Mrs. Marsh went into the pantry, Lawrence went into the bedroom, where he saw Mrs. Atwood; that Mrs. Marsh heard voices talking, but could not understand what was then said, until she heard Mrs. Atwood say, "I will, I will, I will, John." That when Mrs. Marsh came out of the pantry, she saw Mrs. Atwood coming out of the bedroom, Lawrence having already come out, and gone across the kitchen, facing the door as if going out; that Mrs. Atwood said, "Oh, the pistol! the pistol!" and came near fainting; that Lawrence turned round, drew out his pistol, and without taking any more aim than merely raising his arm and pointing it toward Mrs. Atwood, fired twice; that Mrs. Atwood fell; that Mrs. Marsh rushed out of the house, and heard two more pistol shots, at least, fired after she went out; and that Lawrence passed Mrs. Marsh, going out of the house as she returned. It also appeared that about seven o'clock on the same Sunday evening, Lawrence was found in his room, on Main Street, with his throat cut; that he still had a knife in his hand; that when found, his first words were, "Do you think I am cut enough to die?" "Is that damned whore dead?" "I hope she is. If she is, I can die happy?" It also appeared that the defendant was jealous of Mrs. Atwood, who, he alleged, had agreed to marry him, and then went with other men.

The defence was insanity, and considerable testimony tending to show the condition of Lawrence at the time of shooting Mrs. Atwood, and before and afterwards, was introduced.

The presiding judge, inter alia, charged the jury as follows:"Was it a case of jealousy, or was it an insane delusion? You are to determine whether insanity of any kind existed at the time of the