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statute, that no person shall be convicted of any offense committed between the ages of nine and thirteen years, unless it shall appear by proof that he had discretion sufficient to understand the nature and illegality of the act. Paschal, Dig. art. 1638. Under this statute it is held, that the prosecution must prove that a defendant, who comes within the statute and who is indicted. for murder, knew that the killing of a human being was a great crime, prohibited by law under severe penalties. Wusing v. State, 33 Tex. 651. The same rule prevails in Alabama, except that the age of the infant is fixed at seven and fourteen. Godfrey v. State, 31 Ala. 323.

With regard to capital crimes the law is, very properly, more minute and circumspect, distinguishing with greater nicety the several degrees of age and discretion, than in cases of inferior grade; but if it appear to the court and jury that the offender was doli capax, and could discern between good and evil when he committed the offense, he may be convicted and suffer death. Tyler, Infancy & Coverture, 189.

Evidence that a boy is under the age of fourteen is always competent and where such a fact is made to appear is not liable for false pretense. Doran v. Smith, 49 Vt. 353. The question in all instances of his capacity to know good from evil, is a question of fact to be determined by the jury. People v. Davis, 1 Wheel. Crim. Cas. 230; State v. Doherty, 2 Overt. 80; People v. Walker, 5 City Hall Rec. 137; Stage v. People, 5 City Hall Rec. 177; Reg. v. Smith, 1 Cox, C. C. 260; Rex v. Owen, 4 Car. & P. 236.

$395. Evidence of Marital Coercion as an Excuse. It is a general rule of law that persons are excused from those acts which are not done of their own free will, but in subjection to the powers of others. And as to persons in private relations, the principal case where such constraint is allowed as an excuse for criminal misconduct, is that of a wife, based upon the idea of her matrimonial subjection of her husband. She will not be able to suffer for an offense done by his coercion, or in his company which the law construes as coercive. But the coercion from being in his company is only presumed; and if it appears that she was not urged or drawn to the offense by him, but was an inciter of it, she is as guilty as he is. If she steal of her own will, or by the bare command of her husband or of his procurement, she is

liable as well as he. Reg. v. Buncombe, 1 Cox, C. C. 183; Rex v. Hughes, 2 Lew. C. C. 229, cited in 1 Russell, Crimes, *22. The presence of the husband is not an absolute excuse, it gives only a prima facie presumption of coercion.

The prima facie presumption that the wife was coerced into committing the crime could be rebutted by showing that she was the more active party. Wagener v. Bill, 19 Barb. 321; Rex v. Hughes, 2 Lew. C.C. 229; Reg. v. Cohen, 11 Cox, C. C. 99; Rex v. Morris, Russ. & R. 270; 2 Barbour, Crim. L. 273; 1 Russell, Crimes, 18, 21, 22.

The rule is everywhere established, that the commission of a criminal act raises the presumption of the criminal intent, notwithstanding that the criminal was drunk when he committed it. No other rule would be consistent with the safety of society. But where the existence of a specific intent is necessary to the criminal act, a degree of drunkenness, incompatible with the formation of that intent, negatives the act, and disproves the crime. Robinson, Elementary Law, § 387, citing Broom, Com. 887, 888; 1 Hale, P. C. 32; 1 Russell, Crimes, 7, 8; 1 Whart. Crim. L. S 3244; 1 Bishop, Crim. L. §§ 397-416; 1 Bennett & Heard, Lead. Crim. Cas. 131-145.

CHAPTER XLVIII.

EVIDENCE OF INSANITY.

396. Preliminary Observations.

397. Conflicting Theories Regarding the Subject.

398. Insanity should be Established Beyond a Reasonable

Doubt.

399. Statement of the Doctrine in the Boswell Case.

400. Wide Acceptance of the Rule last Stated.

401. Attitude of the New York Court.

402. The Celebrated Mc Naghten Case Considered.

403. The Right and Wrong Test Considered by Mr. Justice Ladd of the New Hampshire Court.

a. Analysis of the McNaghten Case.

b. The Result Examined.

c. Worthlessness of the Conclusion Shown.

d. Practical Repudiation of the Mc Naghten Case by English Jurists.

404. Early Views of the Massachusetts Court.

405. New York and Pennsylvania Cases Considered.
406. Instances where all Tests have been Discarded.
407. Delaware Adopts the New Hampshire View.
408. "Right and Wrong" Test in Formulas.
409. Liberal Views of the Alabama Supreme Court.
a. As to Medical Experts.

b. But Three Questions for the Jury.

c. Modification of the Rule in Boswell's Case.

d. "Right and Wrong" Test Denounced.

e. Rule of the French and German Criminal Codes Stated.

f. Dissenting Views of Chief Justice Stone.

g. A Cautionary Paragraph.

410. The Problem Considered by Dr. Ordronaux. 411. The Guiteau Case Examined.

a. Abuse of Insanity as a Defense.

b. Evidence of Insanity in Parents and Immediate Relatives.

c. Legitimate Conclusions from the Evidence.

d. The McNaghten Case again Reviewed.

e. Monomaniac and Insane Delusions Considered.
f. Unsworn Declarations of the Accused.
g. The Test of Criminal Responsibility.
h. Theory of Irresistible Impulse Examined.
i. Review of the State Decisions.

j. Comments of Judge Somerville.

412. Views of Mr. Robert Desty.

413. Views of the Florida Supreme Court.

414. Moral Insanity as an Excuse for Crime.

415. Summary of the Conclusions Reached.

416. Review of the Subject by the Nevada Supreme Court.

§ 396. Preliminary Observations. The frequency with which the records of appeal in cases of homicide are incumbered with allegations of error regarding the instruction of the trial court as to what constitutes insanity, renders it desirable to reach some satisfactory conclusion on this subject. Our state reports contain many formulas which are designed to embody the existing law, and after a careful review of the various judicial dicta, we are inclined to recommend the instructions contained in the case of Baldwin v. State, 12 Mo. 223. The judge's charge in that particular case has been the subject of much comment and critical examination. It has been found to harmonize with both public sentiment and statutory law, in that it is founded upon the principle that "in medio tutissimus est" is found a rule lying between two extremes. This decision is authority for the broad proposition that the defense of insanity is established when the evidence offered in support of it preponderates in favor of the fact, and reasonably satisfies the jury that it existed at the time the criminal act charged was committed. The fact that insanity is so easily simulated demonstrates the wisdom of the rule, and affords a strong reason why we should adhere to it.

Dr. Ray has well observed: "No cases subjected to legal inquiry are more calculated to puzzle the understandings of courts and juries, to mock the wisdom of the learned, and baffle the acuteness of the shrewd, than those connected with questions of imbecility;" and he might have safely added, insanity generally. See Ray, Insanity (3d ed.) § 104.

§ 397. Conflicting Theories Regarding the Subject.-Two conflicting theories are struggling for ascendency in the criminal jurisprudence of the country, as regards the degree of evidence

necessary to uphold a conviction where insanity is interposed as a defense. The first theory is of English origin and generally obtains in Alabama, Arkansas, California, Iowa, Louisiana, Maine, Massachusetts, Michigan, Minnesota, North Carolina, Ohio, Pennsylvania, Virginia, West Virginia and Texas, with some slight modification. The rulings in these states substantially hold, that the jury must regard the preponderance of evidence as controlling their decision on the question of lunacy-that is, it need not be established beyond a reasonable doubt. The second group of cases have been decided by the courts of New Hampshire, Vermont, Michigan, Illinois, Indiana, Kansas, and possibly New York, and go far to sustain the contention, that under the defense of insanity, it is for the state to prove that the accused was compos mentis beyond a reasonable doubt.

A review of the authorities will show the subtle distinction to which this subject gives rise and the infinite diversities of its ap plication.

State v. Jones, 50 N. H. 369, 9 Am. Rep. 242; State v. Bartlett, 43 N. H. 224, 80 Am. Dec. 154; Wright v. People, 4 Neb. 408; Cunningham v. State, 56 Miss. 272, 21 Am. Rep. 360; People v. Finley, 38 Mich. 482; McAllister v. State, 17 Ala. 436, 52 Am. Dec. 180; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162; State v. Crawford, 11 Kan. 32; Boswell v. State, 63 Ala. 307, 35 Am. Rep. 20; Guetig v. State, 66 Ind. 94, 32 Am. Rep. 99; McKenzie v. State, 26 Ark. 334; Stevens v. State, 31 Ind. 485; People v. Myers, 20 Cal. 518; Polk v. State, 19 Ind. 170, 81 Am. Dec. 382; People v. Coffman, 24 Cal. 233; Chase v. People, 40 Ill. 352; People v. McDonnell, 47 Cal. 134; Hopps v. People, 31 Ill. 385, 83 Am. Dec. 231; People v. Wilson, 49 Cal. 14; Fisher v. People, 23 Ill. 293; State v. Hoyt, 46 Conn. 330; Boswell v. Com. 20 Gratt. 860; State v. Danby, 1 Houst. Crim. Cas. 175; Clark v. State, 8 Tex. App. 350; Carter v. State, 12 Tex. 500, 62 Am. Dec. 539; State v. Felter, 32 Iowa, 50; Dove v. State, 3 Heisk. 348; Kriel v. Com. 5 Bush, 362; Sayres v. Com. 88 Pa. 301; Graham v. Com. 16 B. Mon. 587; Pannell v. Com. 86 Pa. 268; Smith v. Com. 1 Duv. 224; Meyers v. Com. 83 Pa. 141; State v. Lawrence, 57 Me. 574; Lynch v. Com. 77 Pa. 205; Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458; Ortwein v. Com. 76 Pa. 423, 18 Am. Rep. 420; Com. v. Eddy, 7 Gray, 583; Bergin v. State, 31 Ohio St. 115; Com. v. Heath, 11 Gray, 303;

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