
    Joseph Loeffner v. The State of Ohio.
    1. The expression by a juror, before the trial, of a hypothetical opinion, as to-the guilt or innocence of the accused, dependent upon a particular state of facts, as to the existence of which no opinion was ■ given, does not constitute a sufficient ground for a new trial in a criminal case.
    2. The authority of this court to supervise the judgment of an inferior court,, because of any supposed error in overruling a motion for a new trial, on the ground that the verdict was against the weight of the evidence, can only be derived from statute, and was therefore taken away by the repeal of the statute of 1845 relating thereto.
    3. The refusal of the common pleas to grant a new trial on the ground of newly discovered evidence which was merely cumulative, is not ground for a reversal of the judgment of that court in error.
    4. It is not requisite that a venire for a special jury, in a case of murder in the *first degree, should be either entitled as of the case pending, or state the name of the person of whose murder the indictment charges the accused.
    6. A motion to continue a cause is a matter addressed to the sound discretion of the court, and, therefore, an order overruling such a motion can not be reviewed on error.
    6. The intent or purpose to kill, which constitutes an essential element in the crime of murder, under the statute of this state, and an averment of which is necessary in an indictment for murder, need not be averred in the identical words of the statute. An averment, therefore, that the accused “ purposely and of deliberate and premeditated malice assaulted, cut, and stabbed” H, “thereby then and there purposely and of deliberate and premeditated malice giving to H. a mortal wound," of which mortal wound he instantly died, is sufficient—the intent to inflict a mortal wound importing, ex vi termini, an intent to kill.
    7. In the trial of an indictment for murder, the defense of insanity under the plea of not guilty does not change the nature of the issue so as to give the affirmative to the defendant, and .entitle the defendant to the opening and closing argument to the jury.
    8. The accused in a criminal case is not entitled to an acquittal on the ground of insanity, if at the time of the alleged offense he had capacity and reason sufficient left to enable him to distinguish between right and wrong, and understand the nature of his act and his relation to the party injured.
    9. As the law presumes every person, who has reached the age of discretion, to be of sufficient capacity to be responsible for crimes, the burden of establishing the insanity of the accused affirmatively to the satisfaction of the jury, on the trial of a criminal case, rests upon the defense. It is not necessary, however, that this defense 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.
    This is a writ of error to the court of common pleas of Hamilton county.
    On the 18th of September, 1857, the grand jurors returned as “ a true bill,” into the court of common pleas of Hamilton county, an indictment, in which they “present that Joseph Loeffner, on the 21st day of July, in the year of our Lord 1857, with force and arms, at the county of Hamilton aforesaid, in and upon one Nicholas Horton, in the peace of God and the laws of this state, then and there being, purposely and of deliberate and premeditated malice, did make an assault, and that the said Joseph Loeffner, with a certain knife *which he, the said Joseph Loeffner, in his right hand had and held, then and there him, the said Nicholas Horton, in and upon the lower part of the right side of the abdomen, just above the left groin, then and there purposely, and of deliberate and premeditated malice, did strike, cut, and stab, thereby then and there, with the knife aforesaid, giving to him, the said Nicholas Horton, in and upon the said lower part of the abdomen, just above the loft groin, of him, the said Nicholas Horton, purposely and of deliberate and premeditated malice, one mortal wound of the length of four inches, and of the depth of six inches, of which said mortal wound, so as aforesaid purposely and of deliberate and premeditated malice given by the said Joseph Loeffner to the said Nicholas Horton, ho, the said Nicholas Horton, on the day aforesaid, and in the year aforesaid, and at the county of Hamilton aforesaid, instantly died. And so the jurors aforesaid, upon their oaths and affirmations aforesaid, do say that lie, the said Joseph Loeffner, him, the said Nicholas Horton, in manner and by the means aforesaid, on the day and in the year aforesaid, and at the county of Hamilton aforesaid, purposely and of deliberate and premeditated malice, did kill and murder, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”
    On the 22d day of September, 1857, the defendant was brought into court, and entered a plea of not guilty, as charged in said indictment, and the cause was continued to the November term, 1857. On the 24th of November, 1857, a venire was issued for thirty-six persons, who were required to appear on the 30th, at 9 o’clock A. m., before the court, to serve as j urors, “ for the trial of the cause of the State of Ohio, plaintiff, against Joseph Loeffner, defendant, wherein said Loeffner is indicted for murder in the first degree.” The sheriff returned the venire served.
    At the time the venire was issued and served, there were *two indictments, for murder in the first degree, pending in said court against Joseph Loeffner—one of them for the murder of his wife, Francisca Loeffner, and the other for the murder of Nich-■olas Horton. Both causes were on the docket of the court—the former numbered 2,168, the latter numbered 2,172. Neither did the venire nor the praecipe therefor indicate in which of the two cases it was issued.
    Before a jury was impaneled in either case, the defendant’s counsel moved the court that; as neither the venire nor the praecipe therefor indicated which of the two cases the jury was to be impaneled in, the jury be impaneled to try the cause numbered 2,168, being the first of the two causes on the docket. The court overruled this motion, and directed that the jury be impaneled to try the cause numbered 2,172, which was accordingly done; and the •defendant’s counsel excepted.
    The thirtjr-six persons served with the venire were called, and ■all appeared except two, whose presence was waived by the defendant’s counsel. Of the twelve jurors sworn to try the cause, seven were of the thirty-six who appeared under the venire, and the other five were of those persons called in the places of those of the thirty-six who were excused for cause or peremptorily challenged.
    At the trial, the defense sot up on behalf of the defendant was, “not guilty, by reason of insanity.”
    On behalf of the state, testimony was given in regard to the commission of the homicide by the defendant, and to prove him guilty, as charged in the indictment. ,
    On behalf of the defendant, testimony was given to sustain the ■defense of insanity.
    Rebutting testimony was given on behalf of the state.
    After the conclusion of the testimony, the defendant’s counsel moved the court to allow them to open and close the argument to the jury, they holding the affirmative of the issue made by the plea of “not guilty, by reason of insanity.” *The court over■ruled this motion, and counsel for the defendant excepted.
    In charging the jury, the court used the following language touching the plea of insanity:
    “The defendant, Joseph Loeffner, through his counsel, pleads that he is not guilty of killing Nicholas Horton, in manner and form as set forth by the state, by reason of insanity.
    “His counsel claim that he was an insane man at the time of the commission of the act, and, therefore, an irresponsible being; irresponsible to the law for murder in the first or second degree, or for the crime of manslaughter.
    
      “Was, then, Joseph. Loeffner insane and irresponsible to the law at the time he committed the act of which the state complains?' If you resolve this important question, after a full investigation, and consideration of the testimony in the affirmative, the defendant must be acquitted on the ground of insanity, and in such a case your verdict will be: 1 We, the jury, find the defendant not guilty, by reason of insanity.’ But here your most earnest and careful attention is required. Look at all the evidence touching this issue.. You will examine all the detailed evidence touching upon the subject, and permit not your minds to be carried away by loose inferences or careless deductions.
    “The plea of insanity is an affirmative issue of the defendant.. He, by his counsel, says that he is not guilty, because he was insane at the time of the commission of the act. His counsel are therefore called upon to prove this fact, and to prove it affirmatively. It was formerly held, indeed up to within very recent time, that this issue being thus affirmatively made by defendant or his counsel, must bo proved beyond a reasonable doubt, holding the defendant to as strict proof of insanity as the state is held when she makes a charge against the defendant. But perhapB it would be going too far to lay down this doctrine in so strict sense as the law now exists with us upon *this subject, at least, ‘in favor of life.’ The great difficulty upon this subject is our want of knowledge; and the policy of the law is to let no innocent man be condemned, nor lot no guilty man escape punishment; yet that policy says, rather let the guilty go free than subject the innocent or irresponsible to punishment. But you must observe this in examining this question, you must consider it important, both for the-protection of the community and the safety of the innocent; and let me lay down to you those principles of the law:
    “1. Every individual charged with the commission of a crime or an offense, is presumed to be sane, if over the age of childhood. Every individual charged with the crime of murder, over the age of infancy or childhood, is presumed to bo sane until the contrary is shown, when the plea of insanity is set up.
    “ 2. When the plea is preferred, the burden of proving insanity rests upon the part of the defendant. He must prove it affirmatively. But it is for the jury to conclude upon the proof offered; and if, on due consideration, they are convinced by the proof, upon weight of evidence, that insanity, in its legal sense, existed at the time of the commission of the act, it will be their duty, at least in-favor of life, so to find.
    “To apply these principles to this case: Joseph Loeffner, by the law, at the time of the crime charged, is presumed to have been sane, and to be fully responsible for the consequences of his own acts. If, however, from a full and careful examination of all the testimony of the case, in its weight and character, the conclusion is fixed upon your minds that the defendant was insane at the timoof the commission of the act, then it' is your duty to find in favor-of insanity. But what is the insanity about which you are to pronounce your judgment? For upon this point your pathway must be made clear by the law. Insanity, indeed, exists in so many shapes and forms, has so many, varied insignia and manifestations, that it is almost impossible *for science to comprehend it or give it intelligible definition. The learned and the unlearned differ-about it; what is insanity to one, is not so to another. The classes, species, and modifications are not well understood by any of us, learned or otherwise. It seems, indeed, as indefinito in extent, as-mind itself. Then, how shall we determine the responsibility, on this subject, of man to the law? The policy of the law ought to fix it as far as it can, and the law does fix it. Insanity, in its general legal sense, is the inability or incapacity to distinguish between right and wrong, as applied to particular cases of crime; it is the-inability or incapacity to distinguish between right and wrong, or the want of knowledge of right and wrong as to the particular act committed. If, in the commission of a criminal act, the capacity of distinguishing between right and wrong is overcome or destroyed, or the knowledge of such a distinction is buried in oblivion, such a fact would make a perpetrator irresponsible. We will adopt the language of Chief Justice Shaw, in the Abna Bogers case, ‘that in order to constitute a crime, a man must have intelligence and capacity enough to have a criminal intent and purpose, and if his-reason and mental powers are either so deficient that he has no will, no conscience, or controlling mental power; or if through the overwhelming violence of mental disease, his intellectual power is, for-the time, obliterated, he is not a responsible moral agent, and is not punished for criminal acts.’ And the court hero, gentlemen of the jury, in this connection, will adopt further the language and sentiments of the learned judge: ‘But a man is not to be excused from-responsibility, if he has" capacity and reason sufficient to enable him -to distinguish between right and wrong, as to the particular act he is then doing; a knowledge and consciousness that the act he is ■ doing is wrong and criminal, and may subject him to punishment. In order to be responsible, he must have sufficient power of memory to recollect the relation in which he stands to others, and in which Mothers stand to him; that the act he is doing is ■contrai’y to the plain dictates of justice and right, injurious to others, .•and a violation of the dictates of duty. On the contrary, although he may be laboring under partial insanity, if he still understands the nature and character of his act, and its consequences; if he has a knowledge that it is wrong and criminal, and a mental power sufficient to apply that knowledge to his own case, and to know that if he does the act he will do wrong, and be liable to punish■ment,- such partial insanity is not sufficient to exempt him from -responsibility for criminal acts.’
    “And further we say for the purpose of enlightening you upon .this subject, we will quote from 12 Ohio, 494, the language of Judge Burchard in the case, William Clark v. The State of Ohio: ‘Was the accused a free agent in forming the purpose to kill? Was he ¡at the time the act was committed -capable of judging whether that act was right or wrong ? And did he know, at the time, that it was an offense against the laws of God and man ? If you say nay, he .is innocent—if' yea, and you find the killing to have been pur-posely, with deliberate and premeditated malice, he is guilty. In trying this question, you will bear in mind that the law presumes every person of the age of fourteen years or upward, to be of suffficient capacity to form the criminal purpose, to deliberate and premeditate upon the act which malice, anger, hatred, revenge, or -other evil disposition might impel him to perpetrate. To defeat this legal presumption, which meets the defense of insanity at the -threshold, the mental .alienation relied upon by the accused must -be affirmatively established by positive or circumstantial proof; you must be satisfied from the evidence that the perverted condition of the faculties of the mind indicated in 'the main question, which I have already stated as excusing from crime, did exist at the time Sells was killed. It is not sufficient, if the proof barely shows that such a state of mind was possible; nor is it sufficient if it merely shows *it to have been probable. The proof must be such .as to annul the legal presumption of sanity; it must satisfy you •that he was not sane. It would be unsafe to let loose upon society great offenders upon mere theory, hypothesis, or conjucture. A rule that would produce such a result would endanger community by creating a means of escape from criminal justice which the artful. and experienced would not fail to embrace. The defense of insanity is not uncommon. It is by no means a new thing in a court of justice. It is a defense often attempted to be made, more especially in cases where aggravated crimes have been committed under circumstances which afford full proof of the overt act, and render hopeless all other means of avoiding punishment. "While, then, the plea of insanity is to be regarded as a not less full and. complete than it is a humane defense when satisfactorily established, and while you should guard against inflicting the penalty of crime upon the unfortunate maniac, you should be equally careful that you do not suffer an ingenious counterfeit of the malady to furnish-protection to guilt.’
    “So, gentlemen of the jury, in a thorough examination of the-testimony, apply these principles touching this subject of insanity. Was Joseph Loeffner, at the time of the homicide of Nicholas Horton, capable of judging between right and wrong? Had he the knowledge, at the time the act was committed, of right and wrong - as to the act itself? Did he know, at the time of the fatal stab in the body of the deceased, that he was committing crime?' Was his ■ knowledge and capacity obliterated in the dethronement of reason at the time of the homicide ? These questions are for you to settle; and if you find that he could not distinguish between right and. wrong; that his mental powers were destroyed—his reason gone— you will find him insane. If, on the contrary, you find that he did know that his act was wrong, that it was criminal, then no matter • what may have been his depravity of nature, his feebleness of intellect, his want of capacity or the ^degradation of his morals, his act was a homicide for which he is responsible to the law, according as you find the degree of guilt.
    “ In examining the testimony touching upon these grave and important questions of insanity, it will be necessary for you to consider ■ all the circumstances of the commission of the act itself. Do those show the act to be one of a rational being who knew what ho was about—who knew that it was wrong so to do, and who knew he • must be responsible for the consequences? Did he act in such a' way as convinces your minds that it was the act of a sane mind?' Was the act produced in such a way as a murderer would aecomplish, or was it the act of an insane being, according to the law? ' Take also into consideration all that has been testified to in reference to his history—how he lived in Germany; his boyhood; the condition of his maternal parent; how he came to this country; his conduct and behavior when here; his marriage; his conduct to his •wife; the homicide of his wife; his conduct to Mr. Horton and family; his conversations; his deportment before, at the time, and after the commission of the crime. Examine with care the opinions • of his acquaintances as to his sanity; scrutinize well, too, the opinion of the learned physicians; and you must regard these opinions of .acquaintances and physicians as opinions merely. They are not,' in themselves, positive testimony, though, from the necessity of the ■ case, they are introduced and allowed for what light they may throw upon the condition of the defendant. Test, then, these ■ opinions, and give your undivided attention to the facts upon the subject. It is for you to find the truth, and in your verdict so to say.”
    The jury found the defendant guilty of murder in the first degree, in manner and form as charged in the indictment.
    Thereupon the defendant’s counsel filed a motion for a*new trial and in arrest of judgment. Among the reasons urged in support of the motion, it is only material to state the following:
    1. The verdict was contrary to the law and the evidence.
    2. Newly-discovered evidence.
    3. The special venire did not state the name of the pex’son for whose murder the prisoner was to be tried.
    4. The court ox’dered the defendant to trial in case No. 2,172 instead of No. 2,168, which was first on the docket, and his counsel was thex’eby taken by surprise.
    5. The court refused to allow the defendant’s counsel to open and ■ close the ax-gument to the jury.
    The newly-discovered evidence ux’ged in support of the motion for a xxew trial, tended to prove the defense of insanity, and the .cornet here, on error, finding that it was cumulative merely, it is not necessary to state it.
    The court overruled the motion for a new trial and in arrest of judgment, and the defendant by his counsel excepted.
    Before the defendant was sentenced, his counsel offered as an additional reasoxi for granting anew trial, the following, viz: That Joseph F. Lakeman, one of the jurors who rendered the verdict, bad. expressed the opinion, immediately or soon after Horton was .killed, and before the trial, “that if the statements in the papers of the occurrence were true, Loeffner ought to be hung;” and that the fact that the juror had expressed such opinion was unknown to the defendant and his counsel until after the verdict, although the juror, when examined on the stand touching his gratifications as a juror in the case, and before he was accepted and sworn as such, was .asked if he had ever at any time formed, entertained, or expressed-an opinion concerning the guilt or innocence of Loeffner, and he .answered that he had not.
    To show that neither the prisoner nor his counsel knew that said juror had expressed the opinion mentioned, *the affidavit of •one of his counsel to the truth of that fact was filed. The defendant’s •counsel offered to show further, by affidavit, the trath of this ground for a new trial, if the court would defer the sentence a reasonable time; but the court “ did not consider the reason of sufficient importance, sustained by a single affidavit, to cause a postponement •of sentence; but that counsel should have the advantage of an ex■ception to overruling of said reason, as though said reason and affidavit to sustain the same were then on file,” etc. The defendant’s •counsel excepted.
    Thereupon sentence of death was pronounced upon the prisoner.
    To reverse this sentence this writ of error was prosecuted.
    
      Eassaureck & Elliott and Wm. L. Spooner,
    
    for plaintiff in error, insisted that the court of common pleas erred—
    l..In refusing to grant a new trial on the ground that the juror Lakeman had, before the trial, expressed the opinion that if the statements in regard to the killing of Horton, in the papers, were true, Loeffner ought to be hung. Busick v. The State, 19 Ohio, 198.
    2. In refusing to grant a new trial on the ground that the verdict was against the law and the evidence.
    3. In refusing to grant a new trial on the ground of newly-dis•covered evidence.
    4. In charging the jury that the prisoner, to be excused on the ground of insanity, must have been incapable to distinguish right from wrong'in general. Wharton and Stille’s Med. Jurisp. sec. 60; Ray’s Med. Jurisp. sec. 15, p. 25; Dean’s Med. Jurisp. p. 489.
    5. In charging the jury that the defense of insanity is an affirmative issue, and has to be affirmatively proved by the defendant; also in not giving tbe prisoner the benefit of the doubt as to his sanity or insanity, sanity being just as necessary an ingredient of the offense to be proved by *the state as premeditation, the fact of" killing, etc. The presumption of sanity once being attacked and shaken by the evidence for the defense, it devolves upon the state to establish the sanity of the prisoner beyond a reasonable doubt,, just like any other element of the crime. The People v. McCann, 16 N. Y. (Court of Appeals) 58.
    6. If, however, the defense of insanity be an affirmative issue, to. be established by the prisoner beyond a reasonable doubt—if it be an issue independent and separate from that of the homicide, then the court below erred in not allowing the prisoner the opening and closing of the argument to the jury.
    7. The indictment on which the plaintiff in error was arraigned, tried and convicted, is defective, for the reason that it does not contain an averment that he intended of deliberate and premeditated malice to kill Nicholas Horton. Fouts v. The State, 8 Ohio St. 98.
    8. The special venire did not state with whose murder the defendant was charged, and which issue the jurors were to try, there being at the time two indictments for murder in the first degreeponding in the court of common pleas against the defendant.
    9. The court erred in ordering the plaintiff in error to trial in case No. 2,172, case No. 2,168 being first in number and first on the docket. The prisoner’s counsel not being prepared in case No. 2,172.
    
      G. P. Wolcott, attorney-general, submitted the following points- and authorities for the state:
    1. The formation or expression by a juror, before the trial, of a. qualified or hypothetical opinion dependent upon a particular state of facts, as to the guilt or innocence of the accused, does not constitute sufficient ground for a new trial. The distinction is between a prejudgment of the case and an opinion only binding provided a certain statement of facts should turn out to be true. Kennedy v. Commonwealth, 2 Virg. Cas. 510; Commonwealth v. Hughes, 5 *Rand. 655; Michener v. State, 11 Georgia, 616; Brown v. Commonwealth, 2 Virg. Cas. 516; Poore v. Commonwealth, Ib. 471; Com. v. Flanegan, 7 Watts and Serg. 421; Fouts v. The State, 7 Ohio St. 471.
    The case of Busick v. The State, 19 Ohio, 198, doés not contradict this rule, for that was a clear ease of pre-judgment. In the case at bar tbe opinion expressed by the juror Lakeman, was purely hypothetical, depending upon the truth of certain statements as to which he had no belief, and the truth of which he could therefore impartially try.
    2. In the present state of the law, this court can not review the judgment of an inferior court, overruling a motion for a new trial because the verdict was against the weight of the evidence. That power never belonged to this .court except in virtue of the “ act to regulate-the judicial courts and the practice thereof” (43 Ohio L. 80), and that act was unconditionally repealed by the code, section 603. House v. Elliott, 6 Ohio St. 497.
    3. The ruling of the court below in refusing to grant a new trial upon the ground of newly-discovered evidence, can not bo assigned for or reviewed on error.
    
      First. That motion is always addressed to the sound discretion of the court to which it is made, and error can not be predicated on the exercise of that discretion. Second. The newly-discovered evidence set out in the bill of exceptions is merely cumulative, and the motion was therefore properly overruled. Perrin v. Protection Ins. Co., 11 Ohio, 147; Commonwealth v. Flanegan, 7 Watts & Serg. 415.
    4. No exception was made to the charge of the court, and error can not be assigned thereon. Geauga Iron Company v. Street, 19 Ohio, 300.
    While this seems to be the general rule in this state, in civil cases, it does not comport with my conviction of duty to argue that, where a charge is spread upon the record, so as to be legitimatety before the reviewing court, and it *is apjiarent that the prisoner has been vitally or materially prejudiced by an erroneous ruling of that charge, the reviewing court ought not, sua sponte, to take notice of the error and reverse the judgment. No man’s life should be forfeited because of the omission of his counsel to-take exception. The interests of public justice do not, in my opinion, require or even permit me to .urge this objection against considering any error in the charge of the court. If the court shall deem it to be its duty to look into the charge, then I submit, without argument, the fourth and fifth points made on behalf of the plaintiff in error, to the consideration of the court, calling its attention, however, to the following cases (which are all that I have been, able to find), in which the question of the burden of proof was distinctly made: State v. Spencer, 1 Zab. 196; Com. v. York, 7 Boston Law Rep. 497, 515; Com. v. Rogers, 7 Met. 500; The People v. McCann, 16 N. Y. (Court of Appeals), 58.
    5. The right to open and close depends upon the issue made by The pleadings. The defendant below pleaded “not guilty,” generally ; thus traversing every material averment of the indictment, ¡and—upon the record—imposing upon the state the necessity of maintaining these averments by legal and sufficient proof; and until so proved the accused could not be put on his defense. The ■statement or admission made by the counsel of the accused during the trial, that he was “ not guilty because he was insane,” could not change the affirmative of the issue as made by the pleadings. At most it could do no more than to supply the state with evidence which, if not so supplied, must otherwise have been produced by it. The statement or admission did not—could not—change the burden of proof. It might lighten it, but that was all. Even if the accused had pleaded guilty, it would still, by express provision of statute, have been incumbent on the state to produce evidence ' showing the degree of the crime thus confessed. *Swan’s Rev. Stat. 275; and see Dick v. The State, 3 Ohio St. 89; Parks v. The State, 3 Ib. 101.
    Besides this, it may well be doubted whether a plea of confession ■and avoidance as to any fact charged in the indictment, and which upon traverse of not guilty, the state would be bound to maintain, ■is known to the criminal law. On familiar principles of pleading it would be bad as amounting to the general issue. Whart. Or. L. 247.
    6. The indictment does distinctly allege the killing to have been «done by the accused “ purposely and of his deliberate and premed■itated malice.” It avers, that “ purposely and of his deliberate and premeditated malice,” he assaulted Horton, and with a knife “ purposely and of his deliberate and premeditated malice ” cut and •stabbed Horton, thereby then and there with the knife, “ piurpoosely ¡and of his deliberate and premeditated malice ” giving to Horton “ one mortal wound,” “ of which mortal wound so as aforesaid purposely and of his deliberate and premeditated malice given by the .said Loeffner to the said Horton,” .... “he the said Horton ” ..... then and there instantly died.
    An .intent to inflict a' mortal wound is, ex vi termini, an intent (to kill by means of the wound.
    The ruling in the ease of Fouts v. The State, 8 Ohio St. 98 (de•cided at the present term), does not reach the present question, or assert any doctrine which affects this indictment.
    7. The statute directing a venire for a special jury to be issued in •capital cases, does not require it to be entitled as of any case, and ¡still less that it shall state the name of the person of whose murder the indictment charges the accused. It might as well be insisted that it should state the whole indictment. The fact that two indictments charging the accused with murder are pending in the same court, does not change the rules by which the sufficiency of a venire is to be determined. If it be good, one *ease only pending, it is equally good though two cases may be pending.
    Again, the question is now made for the first time. While its nov■elty is no argument against it, if the alleged defect operated to the prejudice of the prisoner, it is a controlling argument, if the objection be apure and simple technicality. And the present objection is clearly and undeniably such. The omission to state the mame of the murdered person in a process used simply to bring- a jury into court for the trial of the accused, can by no possibility affect any right of the accused, or deprive him of any single advantage. Indeed, upon principle, it would seem safer to omit the ' name of the murdered map. The less a juror knows of the case he is to try, before actually impaneled, the more completely does 'he possess the chiefest qualifications of a juror—freedom from any ■opinion as to the cause he is to try.
    But again; the whole object of the statute is to bring into court thirty-six persons, out of whom, twelve may be “ elected” for the trial of the ease; and that object is as effectually secured by a venire which does not state as by one which does state the name of the murdered person. Swan’s Rev. Stat. 724.
    8. The continuance of a cause, as well as the order in which ■causes shall be tried, is a question always addressed to the dis■cretion of the court. This is so plainly a necessity, and so 7nuch .a matter of the commonest learning, that a bare statement of the rule will suffice.
   Bartley, C. J.

The expression by a juror, before the trial, of a hypothetical opinion as to the guilt or innocence of the accused, dependent upon a particular state of facts as to the existence of which no opinion was given, does not constitute a sufficient ground for a new trial in a criminal case

The authority of this court to supervise the judgment of an inferior court because of any supposed error in overruling a motion for a new trial on the ground that the verdict was against the weight of the evidence, can only be derived from statute, and was therefore taken away by the repeal of the statute of 1845, relating thereto.

The refusal of the common pleas to grant a new trial on the ground of newly-discovered evidence which was merely cumulative, is not ground for a reversal of the judgment of that court on error.

It is not requisite that a venire for a special jury in a case of murder in the first degree, should be either entitled as of the case pending, or state the name of the person of whose murder the indictment charges the accused.

A motion to continue a cause is a matter addressed to the-sound discretion of the court, and therefore an order overruling such a motion can not be reviewed on error.

The intent or purpose to kill, which constitutes an essential element in the crime of murder under the statute of this state, and an averment of which is necessary in an indictment for murder, need not be averred 'in the identical words of the statute. An. averment, therefore, that the accused “ purposely and of deliberate- and premeditated malice assaulted, cut, and stabbed ” H, “ thereby then and there purposely and of deliberate and premeditated malice, giving to S a mortal wound,” of which mortal wound he instantly died, is sufficient—the intent to inflict a mortal wound importing, ex vi termini, an intent to kilb

In the trial of an indictment for murder, the defense of insanity under the plea of not guilty, does not change the nature of the issue so as to give the affirmative to the defendant, and entitle the defendant to the opening and closing argument to the jury.

The accused in a criminal case is not entitled to an acquittal on the ground of insanity, if at the time of the alleged offense he had capacity and reason sufficient left *to enable him to distinguish between right and wrong, and understand the nature of his act, and his relation to the party injured.

As the law presumes every person who has reached the age of discretion to be of sufficient capacity to be responsible for crime, the burden of establishing the insanity of the accused affirmatively to the satisfaction of the jury, on the trial of a criminal case, rests upon the defense. It is not necessary, however, that this defense 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.

Judgment of the court of common pleas affirmed,.

Swan and Scott, JJ., concurred.

Brinkerhofe and Sutliff, JJ.,

dissented, on the ground that the

■charge of the court below to the jury was, to the prejudice of the prisoner, at variance with the rule as lastly above stated by the majority of the court.

Sutliff, J., also held the averment of intent or purpose to kill to be defective, as being only an averment arguendo.  