Court Must Not Instruct as to Weight of Evidence. necessary, however, that this defence be established beyond a reasonable doubt. It is sufficient if the jury is reasonably satisfied, by the weight or preponderance of the evidence, that the accused was insane at the time of the commission of the act.1 [The judgment was reversed on other grounds.] BURDEN OF PROOF — INSTRUCTIONS-COURT MUST NOT INSTRUCT AS TO WEIGHT OF EVIDENCE- REASONABLE DOUBT ON WHOLE EVIDENCE. STATE v. SMITH. [53 Mo. 267.] In the Supreme Court of Missouri, July Term, 1873. 1. Burden of Proof- Instruction. - The burden of proof being on the prisoner to prove his insanity, an instruction that to overthrow the presumption of sanity he must satisfy the jury by "the weight and preponderance" of the testimony that he was insane at the time he committed the crime, is not error. 2. Instructions - Court Must Not Instruct as to Weight of Evidence. It is error for the court to select certain facts shown by the evidence, and tell the jury what weight should be attached to them. 3. Reasonable Doubt on Whole Evidence. If the jury have a reasonable doubt of the commission of the crime on the whole evidence they should acquit. APPEAL from Greene County Court. VORIES, J., delivered the opinion of the court. The appellant was prosecuted and tried in the Greene Circuit Court, upon an indictment for an assault with the intent to kill. It is charged, in substance, by the indictment, that the defendant on the fifth day of July, 1871, at the county of Greene, etc., did unlawfully, wilfully and feloniously, with a chopping axe, which was a deadly weapon, etc. make an assault upon the body of one Amanda Hancock, with the intent to kill, etc The evidence on the part of the State was circum v 1 Loeffner v. State, 10 Ohio St. 598, Fisher People, 23 I. 283; Commonwealth v Rogers, 7 Metc. 500; Commonwealth v. Eddy, 7 Gray, 583. State v. Smith. stantial, no direct evidence of the assault by defendant being introduced. The defendant introduced several witnesses, whose evidence tended strongly to prove insanity on the part of the defendant. This evidence tended to prove insanity at a time commencing four or five months before the assault, and only a few days previous to the assault, and after the assault while the defendant was in prison. At the close of the evidence the court, on the part of the State, instructed the jury as follows: : First. The court instructs the jury that the law presumes that every man that has arrived at years of discretion is sane, and that the presumption continues until the contrary is shown by the weight and preponderance of testimony." Second. "The court declares the law to be that, when the State has proven the offence charged, she can rest her case upon the legal presumption that the party accused is of sound mind, and if the defendant seeks to avoid the punishment, he must satisfy the jury by the weight and preponderance of testimony that he was insane at the moment that he committed the crime." Third. "That it is not sufficient to warrant an acquittal for the defendant simply to show that at times he acted and talked strangely and singularly; but that the jury must believe from the testimony that he was insane at the very time that he committed the offence, and that he was so insane that he could not distinguish right from wrong." To the giving of these instructions the defendant objected, and, his objections being overruled, he excepted. The defendant then asked the court to give the jury several instructions, all of which were refused. And he again excepted. Two of these instructions asked and refused, were as follows: "The court instructs the jury that it devolves upon the State to prove that the defendant is guilty, as charged by the indictment, and unless the State has established beyond all reasonable doubt that the defendant is guilty, as charged, they will acquit." "That if upon a review of the whole case, and a consideration of all the circumstances connected with it, the jury have a reasonable doubt as to the guilt of the defendant, they will find him not guilty." After the above instructions were refused, the defendant asked the court to instruct the jury that, "if they have a reasonable doubt as to the guilt of the defendant, they will acquit." This was also refused and the defendant again excepted. The jury then returned a verdict of guilty against the defendant, and assessed his punishment at imprisonment in the penitentiary for the "Weight and Preponderance of Testimony." term of two years. The defendant filed a motion for a new trial on the ground, among others, that the court has erred in refusing proper instructions asked for by the defendant, and in giving improper instructions on the part of the State. This motion was overruled, and final judgment rendered against the defendant. The defendant again excepted and appealed to this court. The only questions presented by the record for the consideration of this court are as to the propriety or impropriety of the action of the court trying the cause, in giving instructions on the part of the State and in refusing those asked for by the defendant. By the first and second instructions given by the court on the part of the prosecution, the jury are told that the law presumes that every man who has arrived at years of discretion is sane or of sound mind; and that if the defendant seeks to avoid this presumption, he must satisfy the jury by the weight and preponderance of testimony, that he was insane at the time he committed the crime. It is urged by the defendant that the court committed error in these instructions. The authorities upon the subject of insanity, and upon the subject of the burden and amount of proof in such cases, will be found to be very conflicting, some courts holding that it devolves on the defendant in such cases to prove the fact of insanity by the evidence, so clear as to leave no reasonable doubt as to the insanity. Other courts have held that all that is necessary is to produce enough evidence to create a reasonable doubt in the minds of the jurors as to whether insanity exists in the given case or not; while it has been repeatedly held in this court that "insanity is a simple question of fact to be proved like any other fact, and any evidence, which reasonably satisfies the jury that the accused was insane at the time the act was committed, should be deemed sufficient."1 The burden of proof, of course, is held by this court to be on the defendant to rebut the presumption of sanity which exists in all cases until the contrary is made to appear. The instructions under consideration would have been more satisfactory if they had been differently worded, though the principle asserted in them is in effect the same as that enunciated in the cases decided by this court above referred to. The jury are told that they must be satisfied by the weight and preponderance of testimony. This language is well understood by lawyers to mean, that the evidence must be sufficient to satisfy the minds of the jurors as to the fact of insanity, and that is all that is required. Of course this must necessarily be accomplished by a preponderance of the 1 State v. Hundley, 46 Mo. 414; State v. Klinger, 43 Mo. 127; State v. McCoy, 34 Mo. 531. State v. Smith. evidence. But the jury are told by the instruction that this conviction of their minds must be produced by the "weight and preponderance of the testimony." It is barely possible that jurors might be held to believe that it took something more than a conviction of the mind to find in favor of a plea of insanity, from the language used in the instructions. Yet, instructions using almost the same language have been approved in the cases above referred to. The case would, therefore, not be reversed merely on the ground of the informality of these instructions. The third instruction given by the court on the part of the prosecution, tells the jury, "that it is not sufficient to warrant an acquittal, for the defendant simply to show that at times he acted and talked strangely and singularly, but that the jury must believe from the testimony that he was insane at the very time he committed the offence, and that he was so insane that he could not distinguish right from wrong." This instruction was clearly wrong; it is not the province of the court to select certain facts shown by the evidence, and tell the jury how much and what weight they shall give to such facts, or whether they shall give such evidence any weight at all. The court passes upon the legality or admissibility of the evidence, but after the evidence is legally admitted, it is the exclusive provision of the jury to pass upon the weight of the evidence given, and give each part of the evidence such weight as in their judgment it is entitled to receive, without any interference or direction of the court whatever. Their minds ought to act freely on the facts of the case without any other control than that of their own unbiased judgment. This instruction is a comment on the evidence, which is expressly forbidden by our statute.1 The statute provides that the court shall not "sum up or comment or the evidence." If the court can, under this statute, select certain portions of the evidence and tell the jury how much weight to give, or whether they shall give the evidence selected any weight at all, then no reason can be perceived why the court could not select other parts of the evidence, or all of the facts in the case, and tell the jury what weight to give the same, and in effect tell what verdict should be found. To permit this, would be to wholly destroy whatever value there is in the right of trial by jury. The decisions of this court have been uniformly in condemnation of such instructions.2 The defendant on the trial asked the court to instruct the jury: "That if upon a review of the whole case and a consideration of all the 1 W. S. 1106, sect. 30. 2 State v. Hundley, 46 Mo. 414; Fine v. St. Louis Public Schools, 30 Mo. 166; State v. State v. Hundley. circumstances connected with it, the jury have a reasonable doubt as to the guilt of the defendant, they will find him not guilty." The court was clearly wrong in refusing to give this instruction. In this case, the assault charged in the indictment was not admitted so as to leave the issue of insanity or no insanity the only issue to be tried. The assault was denied and was only attempted to be proved by circumstantial evidence, so that the jury had to pass upon not only the fact of insanity, but also on the evidence tending to prove that the accused committed the assault complained of. In such case the instruction asked was clearly right and ought to have been given. But suppose In delivering the opinion of the court in the case above referred to, of State of Missouri v. Klinger, Judge Wagner approvingly makes the following quotation from Bishop on Criminal Law: "Sanity, as observed by a learned judge, is presumed to be the normal state of the human mind, and it is never incumbent on a prosecutor to give affirmative evidence that such state exists in a particular case. this normal state is denied to have existed in the particular instance, then, if evidence is produced in support of such denial, the jury must judge of it and its effect on the main issue of guilty or not guilty, and if, considering all the evidence, and considering the presumption that what a man does is sanely done, and suffering the evidence and the presumption to work together in their minds, they entertain a reasonable doubt whether the prisoner did the act in a sane state of mind, they are to acquit. Otherwise they are to convict." I am of the opinion that the judgment should be reversed. The other judges, concurring, the judgment is reversed and the cause remanded. BURDEN OF PROOF-INTOXICATION-INSTRUCTIONS AS TO WEIGHT AND SUFFICIENCY OF EVIDENCE. In the Supreme Court of Missouri, August Term, 1870. 1. Burden of Proof. · The burden of proving insanity to the satisfaction of the jury rests upon the defence; but it is not necessary that insanity should be established beyond a |