
    John Thomas v. The State.
    Criminar Law. Insanity. Aberration. Homicide.
    
    Proof that one on trial for murder was subject to a strange infirmity, such that a sudden touch or cluck from behind would cause him to lose consciousness and self-control and strike any person near him, is no defense, in the absence of evidence that at the time of the killing he had been thus excited.
    From the circuit court of the second district of Marion county.
    IIon. S. II. Terral, Judge.
    John Thomas, a colored man, was eoiivicted of the murder of John McClendon, and sentenced to the penitentiary for life. On the trial there was evidence showing that the ac■cused was subject to a peculiar mental infirmity or disorder; that if unexpectedly touched from behind, he became suddenly excited, losing all reason and self-control, and would leap forward and strike the person nearest in front of him, without regard to who was the cause. The same sort of paroxysm would be produced by a sudden cluck or whistle by some one immediately behind him. It was further shown that this peculiarity was well known in the community, and at times mischievous persons would thus excite him, this being called, in the vernacular of his race, “goosing” him. The witnesses testified to many occasions when, as they said, he had been thus “ goosed,” and stated that, in addition to the acts of violence which it tended to produce, it brought a wild and foolish look to his face.
    There was no conflict of evidence as to the circumstances of the killing. McClendon, the deceased, -was standing in the restaurant talking to another, and the accused entered, and, without speaking, drew a pistol and shot him, causing immediate death. There was no proof whatever that the .accused had any malice or ill will toward the deceased, or that he had been suddenly excited by any of the causes above mentioned. The only testimony which in the least tended to show this was that immediately after the killing there was .a foolish expression upon his face. -
    
      D M. Watkins and T. S. Ford, for appellant.
    
      Frank Johnston, attorney-general, for the state.
   Campbell, C. J.,

delivered the opinion of the court.

The fatal defect in the case of the appellant is that there is no evidence that he was “goosed” when he killed his victim, and, however effective this strange defense might be if sustained by evidence, it is of no avail in the absence of any such evidence. The complaint about venue is without merit. The instructions are all right.

The penitentiary is the proper place for one so easily, and liable to be so frequently, incited by uncontrollable impulse to do violence to one in front of him.

Affirmed.  