Loeffner v. State, 10 Ohio St. 598; Bonfanti v. State, 2 Minn. 123; Clark v. State, 12 Ohio, 483, 40 Am. Dec. 481; State v. Gut, 13 Minn. 341; Morehead v. Brown, 51 N. C. 367; Baldwin v. State, 12 Mo. 223; State v. Spencer, 21 N. J. L. 201; State v. Huting, 21 Mo. 464; State v. Boice, 1 Houst. Crim. Cas. 355; State v. Klinger, 43 Mo. 127; State v. Pratt, 1 Houst. Crim. Cas. 269, State v. Smith, 53 Mo. 267; State v. Draper, 1 Houst. Crim. Cas. 531; State v. Redemeier, 71 Mo. 173, 36 Am. Rep. 462.

For authorities holding that the burden is with the accused to show his insanity by a preponderance of evidence, where this plea is interposed in traverse of an indictment, see State v. Bartlett, 43 N. H. 224; People v. McCann, 16 N. Y. 58, 69 Am. Dec. 642; Reg. v. McNaghten, 10 Clark & F. 200; People v. Schryver, 42 N. Y. 9, 1 Am. Rep. 480; Freeman v. People, 4 Denio, 28, 47 Am. Dec. 216; Flanagan v. People, 52 N. Y. 467, 11 Am. Rep. 731; People v. Pine, 2 Barb. 573; Wagner v. People, 4 Abb. App. Dec. 511; People v. Robinson, 1 Park. Crim. Rep. 649; Brotherton v. People, 75 N. Y. 163; State v. Brinyea, 5 Ala. 241; Westmoreland v. State, 45 Ga. 225; State v. Marler, 2 Ala. 43, 36 Am. Dec. 398; State v. McCoy, 34 Mo. 531; United States v. McGlue, 1 Curt. C. C. 1; State v. Starling, 51 N. C. 366; State v. Coleman, 27 La. Ann. 691; State v. Strauder, 11 W. Va. 745; State v. Hundley, 46 Mo. 414; Wright v. People, Chase v. People, Graham v. Com. State v. Klinger, People v. Coffman, Fisher v. People, Bonfanti v. State, Leffner v. State, People v. McDonnell, State v. Felter, Boswell v. Com. and Kriel v. Com. supra.

§ 398. Insanity should be Established beyond a Reasonable Doubt. It is a general rule, applicable to all criminal trials, that to warrant a conviction the evidence should satisfy the jury of the defendant's guilt beyond a reasonable doubt; and it has been held that there is a distinction in this respect between civil and criminal cases. This rule is based upon the presumption of innocence, which always exists in favor of every individual charged with the commission of a crime. It is also a rule, well established by authority, that where, in a criminal case, insanity is set up as a defense, the burden of proving the defense is with the defendant, as the law presumed every man to be sane. But I apprehend that the same evidence will establish the defense which would prove insanity in a civil case. The rule requiring the evidence to satisfy the jury beyond a reasonable doubt is one in favor of the

individual on trial charged with the crime, and is applicable only to the general conclusion, from the whole evidence, of guilty or not guilty.

In State v. Spencer, 21 N. J. L. 196, Chief Justice Hornblower laid down the rule that, in order to acquit a person on the ground of insanity, the proof of insanity, at the time of committing the act, ought to be as clear and satisfactory as the proof of committing the act ought to be in order to find a sane man guilty.

In a capital case where insanity is interposed as a defense all rules of strict construction as to the admission of evidence, should be relaxed.

Even in case where the court is convinced that the defense is spurious and improvised as a last resort for evading the consequences of crime, its duty is to hear the evidence for the defense and refrain from any expression of personal opinion regarding it. DeJarnette v. Com. 75 Va. 867; Fain v. Com. 78 Ky. 183, 39 Am. Rep. 213; Walsh v. People, 88 N. Y. 458.

So evidence of somnolentia is receivable.

supra.

Fain v. Com.

And evidence of derangement or mental disturbance, in the ancestors or blood relations of the accused must be regarded as always competent.

So it is error to exclude evidence that the father and brothers of the prisoner were the subjects of epilepsy and of strange conduct, tending to show that they were tainted with insanity. Baxter v. Abbott, 7 Gray, 71; Cole's Trial, 7 Abb. Pr. N. S. 330, 331; Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458; Coon v. Andrews, Mass. 1868, cited in 1 Whart. & S. Medical Jurisprudence, § 375; 1 Whart. Am. Crim. L. § 57.

As a question of evidence, the burden of proof of sanity is upon the government in all cases. The act must not only be proved, but it must also be proved that it is the voluntary act of an intelligent person. Where the will does not co-operate, there is no intent. But as sanity is the normal state of the human mind, the law presumes everyone sane till the contrary is shown; and this presumption, in the absence of evidence to the contrary, is sufficient to sustain this burden of proof. If, however, the defendant can, by the introduction of evidence, raise a reasonable doubt upon the question of sanity, he is to be acquitted. This is the general rule, supported by the great weight of authority. In

some of the states, however, it is held that if the prisoner sets up insanity in defense, he must prove it by a preponderance of evidence, or it is of no avail. It is not enough for him to raise a reasonable doubt on the point. In New York, the authorities seem to be conflicting. In New Jersey, it seems to be the law that the prisoner must prove the defense of insanity beyond a reasonable doubt. May, Crim. L. § 20, citing Com. v. Pomeroy, 117 Mass. 143; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162; State v. Crawford, 11 Kan. 32, 32 Am. L. Reg. N. S. 21 and note; Polk v. State, 19 Ind. 170, 81 Am. Dec. 382; State v. Marler, 2 Ala. 43, 36 Am. Dec. 398; Dove v. State, 3 Heisk. 348; State v. Jones, 50 N. H. 369, 9 Am. Rep. 242; Lynch v. Com. 77 Pa. 205; Kelly v. State, 3 Smedes & M. 518; State v. Felter, 32 Iowa, 49; People v. Best, 39 Cal. 690; State v. Lynch (Mo.) 4 L. & Eq. Rep. 653; Boswell v. Com. 20 Gratt. 866; Wagner v. People, 4 Abb. App. Dec. 509; People v. McCann, 16 N. Y. 58, 69 Am. Dec. 642; Flanagan v. People, 52 N. Y. 467, 11 Am. Rep. 731; State v. Spencer, 21 N. J. L. 202.

§ 399. Statement of the Doctrine in the Boswell Case.The questions involved in this chapter were fully and elaborately considered in Boswell v. State, 63 Ala. 307, 35 Am. Rep. 20, where the authorities on the subject in both England and America are lucidly reviewed in the opinion of Mr. Justice Stone speaking for a majority of the court. The doctrine is there held, that insanity is a defense which must be established to the satisfaction of the jury, by a preponderance of the evidence, and a reasonable doubt of the defendant's sanity, raised by all the evidence, does not authorize an acquittal. A subsequent case in the same court (Ford v. State, 71 Ala. 385) involving substantially the same question, elicited the same expressions from Mr. Justice Somerville. Traveling with the utmost caution to the conclusion reached, he says: "I confess, if the question were a new one, that, apart from authority, I should be greatly disposed to favor the view that, although the law presumed sanity, it at the same time presumed innocence, that these presumptions are each disputable and must go to the jury to be considered by them in connection with the other evidence, and that if the jury, upon the facts and conflicting presumptions of the whole case, entertain a reasonable doubt that the crime charged was committed by the prisoner while in a sane state of mind, he is entitled to an acquit

tal. This is the modern or strictly American doctrine, and finds no countenance, so far as I can discover, among the best lawwriters or adjudged cases in England. It seems to be approved by Mr. Bishop alone of the American text-writers, and finds support in the decisions of only some nine or ten of the highest courts of the several states. 2 Bishop, Crim. Proc. § 673; O'Connell v. People, 87 N. Y. 377, 41 Am. Rep. 379; Cunningham v. State, 56 Miss. 269, 21 Am. Rep. 360; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162; State v. Crawford, 11 Kan. 32; Guetig v. State, 66 Ind. 94, 32 Am. Rep. 99; Chase v. People, 40 Ill. 352; Wright v. People, 4 Neb. 407; State v. Jones, 50 N. H. 369, 9 Am. Rep. 242; Dove v. State, 3 Heisk. 348; State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200; State v. Waterman, 1 Nev. 543.

"The doctrine of Boswell's case, which repudiated the ordinary rule of reasonable doubt as applicable to insanity cases, is, however, sustained by the great weight of authority. It seems to be approved by all of the English text-writers and adjudged cases coming within the sanction of the common law which, for many forcible reasons placed insanity upon a basis somewhat different from other defenses. Reg. v. McNaghten, 10 Clark & F. 200; Reg. v. Higginson, 1 Car. & K. 130; Russell, Crimes (9th ed.) 525. It is said, in Roscoe's Criminal Evidence, that 'the onus of proving the defense of insanity, or in the case of lunacy, of showing that the offense was committed when the prisoner was in a state of lunacy, lies on the prisoner.' Roscoe, Crim. Ev. (7th ed.) 975. In Foster's Crown Law it is said, 'all the circumstances of the accident, necessity or infirmity, are to be satisfactorily proved by the prisoner.' Foster, Crown L. 225.

"Among the American authors, Mr. Wharton strongly favors the view that the burden of the proof is on the defendant to prove his insanity by a preponderance of the evidence, the defense being said to be extrinsic and likened to an application in 'the nature of a plea to the jurisdiction, or a motion for change of venue.' Whart. Hom. § 668; Whart. Crim. Ev. § 340; Whart. Am. Crim. L. (7th ed.) § 54. Mr. Greenleaf says that the defense 'must be clearly proved,'-and again that it 'must be established by evidence satisfactory to the jury.' 2 Greenl. Ev. § 373; 3 Greenl. Ev. 5. The adjudged cases in this country present a vast weight of authority favorable to the doctrine of Boswell's case, or at least in repudiation of the rule entitling the defendant to an

acquittal upon the existence of a mere reasonable doubt of his sanity. Many of these cases state the rule more strongly against the defendant, and some go to the length that the defendant must establish his insanity to the satisfaction of the jury beyond a reasonable doubt. These views prevail in several of the states. McAllister v. State, 17 Ala. 434, 52 Am. Dec. 180; Com. v. Heath, 11 Gray, 303; Sayres v. Com. 88 Pa. 291; State v. Felter, 32 Iowa, 49; State v. Payne, 86 N. C. 609; Graham v. Com. 16 B. Mon. 587; State v. Strauder, 11 W. Va. 745, 27 Am. Rep. 606; State v. Stark, 1 Strobh. L. 479; State v. Lawrence, 57 Me. 574; State v. Redemeier, 71 Mo. 173, 36 Am. Rep. 462; Bergin v. State, 31 Ohio St. 111; Webb v. State, 9 Tex. App. 490; Boswell v. Com. 20 Gratt. 860; People v. Messersmith, 57 Cal. 575; State v. Gut, 13 Minn. 341; McKenzie v. State, 26 Ark. 334; Carter v. State, 56 Ga. 463; State v. Spencer, 21 N. J. L. 196; State v. Danby, 1 Houst. Crim. Rep. 166; State v. Hoyt, 46 Conn. 330.”

§ 400. Wide Acceptance of the Rule last Stated. The Pennsylvania courts have accepted the doctrine of the Boswell case, as is abundantly evidenced by Chief Justice Agnew in Ortwein v. Com. 76 Pa. 414, 18 Am. Rep. 420. "Insanity is a defense. It presupposes the proof of the facts which constitute a legal crime, and is set up in avoidance of punishment. Keeping in mind, then, that an act of willful and malicious killing has been proved, and requires a verdict of murder, the prisoner, as a defense, avers that he was of unsound mind at the time of the killing, and incapable of controlling his will, and, therefore, that he is not legally responsible for his act. Soundness of mind is the natural and normal condition of men, and is necessarily presumed; not only because the fact is generally so, but because a contrary presumption would be fatal to the interests of society. No one can justly claim irresponsibility for his act contrary to the known nature of the race of which he is one. He must be treated and be adjudged to be a reasonable being, until a fact so abnormal as a want of reason positively appears. It is therefore not unjust to him that he should be so conclusively presumed to be, until the contrary is made to appear on his behalf. To be made so to appear to the tribunal determining the fact, the evidence of it must be satisfactory and not merely doubtful, as nothing less than satisfaction can determine a reasonable mind to believe a fact contrary to the course of nature."