insanity, partial or otherwise, whenever it shall be made to appear from the evidence that prior to or at the time of the offense charged, the prisoner was not of sound mind, but was afflicted with insanity, and such affliction was the efficient cause of the act, he ought to be acquitted by the jury. These requests were refused. It is not to be denied that the law applicable to cases of homicide, where insanity is set up as a defense, is left in a great deal of confusion upon the authorities; but this, we conceive, springs mainly from the fact that courts have sometimes treated the defense of insanity as if it were in the nature of a special plea, by which the defendant confessed the act charged, and undertook to avoid the consequences by showing a substantive defense, which he was bound to make out by clear proof. The burden of proof is held by such authorities to shift from the prosecution to the defendant when the alleged insanity comes in question; and while the defendant is to be acquitted unless the act of killing is established beyond reasonable doubt, yet when that fact is once made out, he is to be found guilty of the criminal intent, unless by his evidence he establishes with the like clearness, or at least by a preponderance of testimony, that he was incapable of criminal intent at the time the act was done. R. v. Layton, 4 Cox C. C. 149, 155; R. v. Stokes, 3 C. & K. 185, 188; S. v. Brinyea, 5 Ala. 244; S. v. Spencer, 1 Zab. (21 N. J. L.) 196, 202; S. v. Stark, 1 Strob. (S. Car.) 479. These cases overlook or disregard an important and necessary ingredient in the crime of murder; and they strip the defendant of that presumption of innocence which the humanity of the law casts over him, and which attends him from the initiation of the proceedings until the verdict is rendered. The defendant was on trial for murder. Murder is said to be committed when a person of sound mind and discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied. 3 Coke Inst. 47, 4 Bl. Com. 195, 2 Chit. Cr. L. 724. These are the ingredients of the offense; the unlawful killing, by a person of sound mind, and with malice; or, to state them more concisely, the killing with criminal intentfor there can be no criminal intent when the mental condition of the party accused is such that he is incapable of forming one. These, then, are the facts that are to be established by the prosecution in every case where murder is alleged. The killing alone does not in any case completely prove the offense, unless it was accompanied with such circumstances that malice in law or in fact is fairly to be implied. The prosecution takes upon itself the burden of establishing not only the killing, but also the malicious intent in every case. There is no such thing in the law as a separation of the ingredients of the offense, so as to leave a part to be established by the prosecution, while as to the rest the defendant takes upon himself the burden of proving a negative. The idea that the burden of proof shifts in these cases is unphilosophical, and at war with fundamental principles of criminal law. The presumption of innocence is a shield to the defendant throughout the proceedings, until the ver- * 9, 97 Am. Dec. 162-n, B. 255, 2 L. 463. (U. S. Sup. Ct., 1895.) The same view is adopted by the United States supreme court in an exhaustive opinion written by Harlan, J., in which the cases are reviewed at length, and the conclusion reached that the majority of the courts favor this rule. Davis v. U. S., 160 U. S. 469, 16 S. Ct. 353, 40 L. Ed. 499. * (Ill. Sup. Ct., 1892.) Sufficient Evidence-Test of Insanty-Reasonable Doubt Instruction. Defendant was convicted of assault with intent to murder. The undisputed evidence of the people showed that he fired four shots at Clark, with a revolver, two of which inflicted serious wounds. The only defense was insanity; and on this point the testimony was conflicting. "The first contention now made is that in view of the evidence as to the defendant's insanity at the time the assault was committed, the verdict of the jury finding him guilty was unwarranted and should be set aside. The questions presented by the defense of insanity were for the jury, and they had the important advantage of seeing the witnesses and hearing them testify. The following instruction, asked on behalf of defendant, was modified by the court by inserting therein the words in italics, and was given as modified: 'You are instructed that if you believe from the evidence that the act charged against the defendant in the indictment was committed by him as therein charged, but that, at the time of committing the same, the defendant was a lunatic or insane, to the extent of obliterating the sense of right and wrong as to the particular act done, you should so find by your verdict,' etc. Two other instructions of the same general character asked by the defendant were modified by the inser * * ** tion therein of the same words. There was no error in this modification. As asked, these instructions held that lunacy or insanity, whatever its degree or character, was sufficient to take away criminal accountability, while, as we have already seen, to have that effect, it must be of such degree as to obliterate the sense of right and wrong as to the particular act done. The following instruction asked by the defendant was modified by the court by striking out the word in brackets, and inserting in lieu thereof the word in italics, and given to the jury so modified: That to warrant a conviction in this case, it is incumbent on the people to establish, by evidence, to the satisfaction of the jury, beyond a reasonable doubt, the existence of every element necessary to constitute the crime charged; and if, after a careful and impartial examination of all the evidence in the case bearing upon the question of sanity or insanity, the jury entertain any reasonable doubt of the [sanity] guilt of the defendant, at the time of the alleged offense, they should give the defendant the benefit of that doubt and acquit him.' Three other instructions were asked on behalf of the defendant, by which it was sought, in various forms, to submit to the jury the issue as to the defendant's sanity, as a separate issue, and to instruct them that if, on consideration of the evidence, they had a reasonable doubt as to his sanity, they should find a verdict of acquittal. These instructions were all modified in the same manner as above, and such modifications are assigned for error. We are of the opinion that this assignment of error cannot be sustained. Mr. Bishop, in his treatise on Criminal Procedure, in discussing the defense of insanity and the mode in which it may be availed of, says: Where the defendant sets up that he was insane when he did the act whereof he is accused, he simply declares that he had not the criminal intent which is one of the indispensable elements in every offense. The defense is, in principle, precisely the same as when he declares that he had not the requisite age, or that he acted under an innocent mistake of fact, or where a wife sets up coercion from her husband. It is a bare denial of a part of the prosecuting government's case.' 2 Bish. Cr. Proc. (3d Ed.) § 669. And again: The doctrine of principle, sustained by a large part of our courts, and rapidly becoming general, is that, as the pleadings inform us, insanity is not an issue by itself, to be passed on separately from the other issues, but, like any other matter in rebuttal, it is involved in the plea of not guilty, upon which the burden of proof is on the prosecuting power; the jury to convict or not according as, on the whole showing, they are satisfied or not, beyond a reasonable doubt, of the defendant's guilt.' Id. § 672." Per BAILEY, C. J. Judgment affirmed. Hornish v. P., 142 Ill. 620, 32 N. E. 677, 18 L. R. A. 237, F. 66. 12 § 65. "In Obedience to the Orders of a Superior Official," 218. § 66. "In Reasonable Exercise of Parental or Official Authority," 219. § 67. "In Preserving or Restoring Public Peace," 224. § 68. "In Preventing Commission of Crime and Apprehending or Preventing the Escape of Criminals," 224. § 69. "In Self-Defense," 228. § 70. "In Defense of Castle," 238. § 71. "In Defense of Property," 243. § 72. "In Defense of Friend or Stranger," 246. INCIPIENT ACTS. § 59. Classified. The criminal intent being now understood, the criminal act should be considered. It is progressive, and the scenes "between the acting of a dreadful thing and the first moment should be separately observed: 1. The incipient idea of committing the crime arises in the mind of the actor. 2. If the idea is not repelled, the next act is also merely mental, a decision to commit the crime; and thus far it is now agreed that there is nothing of which the criminal courts can take cognizance [§ 10]. 3. The actor may proceed alone; but suppose he requires the aid or assent of another; the next act is a proposal to another to join him in the crime; of this act of the proposer criminal courts sometimes take notice, and this distinctive offense is known as solicitation to crime. 4. If the person to whom the proposition is made accepts it and joins in the purpose, proposer and acceptor are then both guilty of the further distinct offense known as conspiracy. 5. Then if the single, actor or the united conspirators, with intent to commit the crime, do an act intended to accomplish the crime, they are guilty of the further indictable offense of attempt, though the act failed of accomplishing the intended result. Observe that all these incipient crimes, apart from the one intended, are of a kindred nature. Now let us examine the last three of these more at length. $60. "Solicitation to Crime." (Eng. King's Bench, 1801.) Asking Servant to Steal. The de fendant was indicted for soliciting and enticing a servant to steal the goods of his master; and the defendant contended, that as nothing was done, no crime was committed. The judges delivered their opinions seriatim, and unanimously pronounced it an indictable. offense. LE BLANC, J. A solicitation or inciting of another, by whatever means it is attempted, is an act done, and that such an act done with a criminal intent, is punishable by indictment, has been clearly established by the several cases referred to. * * * # * LAWRENCE, J. All such acts or attempts as tend to the prejudice of the community, are indictable. Then the question is, whether an attempt to incite another to steal is not prejudicial to the community; of which there can be no doubt. LORD KENYON, C. J. It is argued that a mere intent to commit evil is not indictable without an act done; but is there not an act done, when it is charged that the defendant solicited another to commit a felony? The solicitation is an act; and the answer given at the bar is decisive that it would be sufficient to constitute an overt act of high treason. Gross, J., concurred. R. v. Higgins, 2 East 5, Ke. 83, Mi. 337. * * * (Conn. Sup. Ct., 1828.) Soliciting Adultery. Information for writing and sending to a married woman of good repute a letter, stating, "I think we have played peep-abo long enough. * It is highly necessary that lovers meet, in order to understand each other's minds. I do believe it was your intention to have met me a week ago last Sunday. Now, if you will call at my house to-morrow, in the afternoon, at 3 o'clock." The information charged that the writer intended to insult, debauch, and seduce; accuse of libidinous actions; and solicit to commit adultery. Plea, not guilty. Verdict, guilty. He moved in arrest of judgment, and reserved the case for this court's opinion. PETERS, J. Admitting that the letter in question is not a libel, it is certainly a solicitation to commit a greater crime. It explicitly invites Mrs. White to make an assignation to meet the defendant at his house, or at some other place, to commit adultery with him. I have already shown, that adultery is a very great crime, once capital, now punishable like most other felonies. * * * And an attempt to commit, or a solicitation of another to commit such a crime, must be at least a high crime and misdemeanor. Motion in arrest over * * ** ruled. S. v. Avery, 7 Conn. 266, 18 Am. Dec. 105, F. 149. * (Wash. Sup. Ct., 1894.) Same. SCOTT, J. The defendant was charged with attempting to commit adultery and was convicted. ** A motion in arrest of judgment, on the ground that the information did not charge any offense, was made, which the court granted, and ordered the defendant discharged. The state appeals. The only question presented and argued by appellant is as to whether solicitation to commit adultery is an attempt to commit * |