Evidence of, Irrelevant.

conduct; and we may add that, although there was evidence given to show, in the language of the bill of exceptions, "the causes that tend to produce temporary insanity," there was nothing in the case that shows any mental derangement on the part of the accused.

The appellant offered to prove "that the deceased, Lizzie Sawyer, had for a long time previous been having adulterous intercourse with a man by the name of Bibbs, and others, of which adulterous conduct the defendant had for a long time been cognizant." This evidence was rejected, on objection made by the State, and the defendant excepted. This evidence, offered with a view to justify, or in any way palliate, the offence, was utterly incompetent, and correctly rejected. It assumes that the defendant had "for a long time," been cognizant of his wife's adultery. If he had been thus for a long time apprised of her guilt in that respect, there had been an abundance of time for the ebullition of passion, which might be supposed to arise on being first apprised of the fact, to subside. After the lapse of time sufficient for the passions to cool, and for reason to resume her sway, the killing was just as criminal and indefensible as if the deceased had never been guilty of conjugal infidelity. We do not determine what might have been the effect of the adultery of the deceased had the homicide been perpetrated by the appellant immediately upon discovering the fact. It is sufficient to say that if the facts offered to be proven were established, they would, in no way, excuse or mitigate the offence.1 There might be numerous authorities cited upon the point, both ancient and modern, but it is deemed unnecessary.

It is claimed, however, that the evidence should have been permitted to go to the jury, on the ground that it tended to establish the insanity of the accused. It appears to us that the appellant had the full benefit, on the trial, of the fact that he believed that the deceased had been guilty of continued adultery, if that belief had any tendency to produce mental derangement. His statements, before and after the murder, show that he entertained that belief, or perhaps we should say, that he knew the fact. But the evidence, as offered, was incompetent for that purpose.

It was testified by a physician, that "any excitement, an impression that a great wrong has been inflicted upon a man, protracted thought upon any subject, and others that might be enumerated," are causes that tend to produce temporary moral insanity. It is claimed, as we understand the argument, that inasmuch as the infidelity of the de

1 State v. Samuel, 3 Jones (N. C.) 74; State v. John, 8 Ired. 330.

Sawyer v. State.

ceased was a great wrong inflicted upon the defendant, and inasmuch as his mind would protractedly dwell upon the subject, the evidence was competent, as tending to show the existence of an exciting cause of insanity.

This argument assumes that a jury may infer the existence of insanity from proof merely of the existence of a cause that may tend to produce it, without any proof whatever that the effect followed the cause. If it were a case where a given effect must follow the cause, there would be force in the argument, because proof of the cause would be proof of the effect. But we know that the various causes that may tend to produce insanity very frequently fail to produce any such effect; and it seems to us that it is not competent to prove the existence of such exciting cause unaccompanied with some proof that the effect followed the cause. Indeed, a jury would not be authorized to find a man to be insane, without proof on the subject other than the fact that a cause existed that tended to produce insanity. Thus in the case of Bradley v. State, the court below charged the jury, that "if it had been proved that the mother of the defendant was insane, and that insanity in the mother raises a strong presumption that it is transmitted to the offspring, yet it rests upon the defendant to prove that he was insane at the time the act was committed. The facts that the mother was insane, that the twin brother of the mother was also insane, and that a cousin was insane, if proved, would not be sufficient, of themselves, to show insanity in the defendant, but are facts strongly tending to show hereditary insanity in the family, and proper for you to consider with the other testimony in the case, to aid you in determining whether the defendant was insane or not, when the act was committed." This charge was held to be correct.

The evidence offered was not accompanied with any offer of evidence to prove the actual insanity of the defendant, nor was there any evidence introduced that had any legitimate tendency to prove insanity; and whatever might have been the law of the case had evidence been introduced or offered, in connection with that rejected, tending to prove the defendant's insanity, we think the evidence as offered, was rightly rejected.

The appellant moved for a new trial, upon the ground, amongst other things, that the court erred in giving the first, second, third, fourth, and eighth instructions to the jury.

1 31 Ind. 492.

Charge of the Court.

The charges given to the jury are too long to be here set out in full, but we find no error in them. They place the whole law of the case before the jury in quite as favorable a light as the appellant could ask. No objection is pointed out in the brief of counsel for appellant to any of the charges except the second, which is as follows: "If you shall find from the evidence that the prisoner, Sawyer, did the killing as charged in the indictment, then the next question for you to determine is, was the prisoner justifiable or excusable to any extent upon any of the grounds mentioned? The ground relied upon by the defence in this case to overcome this presumption of malice (the presumption arising from the use of a deadly weapon, as explained in a previous charge), is that of insanity. In other words, it is argued in behalf of the prisoner that at the time of the commission of the act alleged in the indictment, he was not of sound mind, and, therefore, not responsible for the acts committed by him. This defence is one very frequently made in cases of this kind, and it is one which, I may say to you, should be very carefully scrutinized by the jury. The evidence to this point should be carefully considered and weighed by the jury, for the reason that if the accused were in truth insane at the time of the commission of the alleged acts, then he ought not to be punished for such acts. The evidence on this question of insanity ought to be carefully considered by the jury for another reason, and that is, because a due regard for the ends of justice and the peace and welfare of society demands it, to the end that parties charged with crime may not make use of the plea of insanity as a means to defeat the ends of justice, and a shield to protect them from criminal responsibility in case of violation of law. It is not every slight aberration of the mind, not every case of slight mental derangement that will excuse a person for the commission of an act in violation of law. The great difficulty is to determine, in cases where insanity is urged as a defence, the degree of insanity that will excuse a person for an act, which, if committed by a sane person, would be criminal, and would subject the offender to punishment. If you believe from the evidence that at the time of the alleged killing (if you shall find from the evidence that there was a killing as alleged in the indictment), the prisoner, Sawyer, was so far insane as not to be able to distinguish between right and wrong with respect to the act in question; or if you shall find from the evidence that he was urged to the commission of the act by an insane impulse so powerful as to overcome his will and judgment, so powerful that he was unable to resist it, even though he might know and feel that the act he was committing was wrong and a violation of law, no matter whether such insane impulse arose from

Sawyer v. State.

mental or physical causes, or both, provided they were not voluntarily induced by himself; or, if you should find from the evidence, that the prisoner was insane on any subject, no matter upon what, provided you find the insane impulse to do the act charged in the indictment arose from such insanity, then, in contemplation of law, he would be insane, and you should acquit him.”

It is objected to that portion of the charge which informs the jury that "the ground relied upon by the defence in this case to overcome the presumption of malice is that of insanity," that it diverted the minds of the jurors from the other grounds relied upon to overcome the presumption of malice, and was calculated to confuse and mislead them. Looking at the case as it appears to us from the evidence, and considering the circumstances and character of the homicide, and the instrument with which, and the manner in which, it was perpetrated, it is difficult to conceive of anything that would overcome the presumption of malice, unless it be a disordered and shattered intellect. But we do not think the court erred to the injury of the accused in giving undue prominence to the defence of insanity. In the series of charges, including that above set out, the whole case was fully and very fairly placed before the jury, and the prisoner had the full benefit of the law as applicable to his case. It may be further observed that in that portion of the charge above objected to, the court was but stating the case as it was argued to the jury by the counsel for the defendant, for the charge immediately proceeds as follows: "In other words, it is argued on behalf of the prisoner that at the time of the commission of the act alleged in the indictment, he was not of sound mind," etc. We cannot say that the court misstated the positions of counsel or gave more prominence in the charge to the question of insanity than the counsel did in the argument.

It is also objected to the charge that it was calculated to prejudice the jury against the defence of insanity; that the jury were unduly cautioned to carefully scrutinize the evidence on that subject.

The observations of the court in that respect meet our unqualified approval. As stated by the court, where the defence of insanity is interposed to a criminal prosecution, the evidence relating to it should be carefully and intelligently scrutinized and considered, for the double reason that a really insane person should not be convicted, and a really sane one should not be acquitted and suffered to go unpunished for his crimes, on the false theory of insanity.

Previous and Subsequent Insanity.

We find no error in the case, either in relation to the evidence or the charge of the court, and are satisfied from the evidence that the verdict and judgment are in all respects right.

The judgment below is affirmed, with costs.

In the Supreme Court of Louisiana, January, 1870..

1. Evidence-Acts and Declarations of Prisoner. In a criminal prosecution for the crime of murder, the witnesses for the accused may, under the plea of insanity, be permitted to give to the jury the acts, declarations, conversations and exclamations, they saw, had with, and heard the accused make at any time shortly before, at the time of, or after the killing. The objections to such testimony go to its effect.

2. Previous or Subsequent Insanity will not discharge the accused. It must be shown to exist at the time the deed was done.

APPEAL from the First District Court of New Orleans, before ABELL, J.

L. Belden, Attorney-General, for the State.

McCay, Levy and J. B. Colton, for defendant and appellant. Howe, J. -The defendant was tried for murder, found guilty without capital punishment, and sentenced to imprisonment in the State penitentiary for life. From this judgment he has appealed.

It appears by a bill of exceptions that the defendant placed on the stand certain witnesses, and asked each of them seriatim, "to state the acts, declarations and conversations and exclamations, they saw, had with and heard the prisoner make, at any time shortly before, at the time of, or after the killing of Sinnott tending to show the condition of his mind; which question and answer was objected to by the Attorney