
    Bryant vs. Jackson.
    1. Insanity is a good plea to an action for slander.
    2 The testimony of witness that defendant was a weak minded inau, and at times, both before and after the speaking of the slanderous words, totally deranged, is competent evidence to be considered by the jury in ascertaining whether the defendant was insane at the time of speaking the words.
    Bryant charged Jackson with stealing his iron, and for this he was sued in slander, in the circuit court of Macon county. The defendant pleaded not guilty, and the case was submitted to a jury, at the May term of ,the circuit court, in 1845.
    After proof of the speaking of the words charged the defendant introduced several witnesses and offered to prove by them, that “he, for many years past, had been a diseased, whimsical and eccentric man; that his neighbors had regarded him as a weak minded man, at times wholly deranged, always singular and eccentric; that- he was the object of general jest, ánd that no person regarded what he said; and that the defendant, during the summer about the time, though not at the precise time, of speaking the words, but both before and after that time, was not in his sound mind; that the speaking the words in question had not, in fact, injured the plaintiff’s character.” The record states, that the evidence offered as to the state of the defendant’s mind, before and after the time of the speaking the words, was to show that at the time of speaking the words, the defendant was insane.
    The presiding Judge, S. Anderson, on motion of the plaintiff, refused to hear the testimony. To this ruling of the court, the defendant excepted.
    The defendant introduced a physician, who proved that defendant had been laboring under a chronic disease of the stomach; that such disease affected very materially the operations of his mind, and that he had regarded the defendant as unsound.
    The court admitted the testimony of witness to prove, that the charges had not injured the plaintiff in their estimation, but refused the admission of the testimony of a witness stating that the charges had not injured the plaintiff in the estimation of others.
    A verdict and judgment were rendered for the plaintiff for 0500. The defendant appealed.
    
      Savage, for the plaintiff in error.
    1. The court erred in refusing to permit defendant below to prove, that, in fact, plaintiff has sustained no damage— “the grounds of this action being the-wrongful act of defendant and the loss resulting to the plaintiff therefrom.” — See Starkie on Slander, 327,408, 409. The refusal of this evidence, in effect, takes the ground that the speaking of the words by one man, would injure the plaintiff’s character as much as by another, which, in point of fact, we know not to be the case.
    2. The court should have admitted proof of defendant’s state of mind; “the insanity of the defendant at the time of speaking the words, being a complete excuse, when the defendant is entirely insane; and when it is only partial, it is evidence in' mitigation.” — 2 Starkie, 471; 5 Munford’s Kep., 466. The court erred even according to its own notion: “that we might, if we could, prove insanity at the time of the speaking, and that it would be a bar.” If that were so, we had a right to prove the fact of insanity, as well by circumstances as by positive evidence; and the proof of insanity before and immediately afterwards, are circumstances from which the fact might be well inferred, and is the very kind of proof most frequent in will cases, where the question is the insanity of testator.
    
      Fite, for defendant in error.
    The proposition of the defendant’s counsel in this case, was to prove that the defendant was sometimes deranged, and of course that he was sometimes sane. The. court rejected this evidence, but permitted evidence, if any could be produced, of insanity at the time of the speaking of the words.
    1. We insist that this defence, being in confession and avoidance, and being a complete bar, if true, to the action, should have been specially pleaded.
    The authorities cited by Mr. Savage, are in cases of actions for special damages, in which the rule is more strict.
    2. If the defence of insanity could be given in under the plea of the general issue, the proposition in this case was not to prove general insanity, but partial and occasional fits of it. The onus was on the defendant to show insanity at the time of the speaking, as general insanity was not proven nor offered to be proven. If general insanity be proven, then the presumption is that it continues, and he who insists the act was done in a sane interval must prove it. But if only occasional fits of insanity be proven, then the presumption is, that the act was done in a sane interval, and he who insists that it was done in an insane fit must prove it. — 3 Star-kie, 1276, note 2, et sequens.
    3. But, as the proof shows, the defendant was finally permitted to enquire as to the state of mind of defendant, and he was proven to be sane; there can be no error in the proceedings that would work injury to the defendant.
    As the court then sees that no injustice was finally done the plaintiff in error, as he was permitted before the close of the trial to introduce the proof at first refused, he has nothing to complain of.
    The doctrine of insanity, as applicable to wills and testaments, does not apply to a case of this kind; but the doctrine as applicable to criminal acts.' — 3 Starkie, 1279, note.
    The enquiry, if proper at all under the general issue, should have been, did he know right from wrong at the time? Did he have mind enough to know that he was slandering the plaintiff, and that it was wrong?
    There are various species of insanity. In some cases, the persons afflicted are devoid of all power of reasoning; they cannot be guilty of any crime. There is another species of madness, in which persons are subject to temporary paroxysms, in which they are guilty of acts of extravagance; this is called lunacy. If these persons were to commit a crime when they were not affected with the malady, they would be, to all intents and purposes, amenable to justice: so long as they.could distinguish good from evil, so long would they be answerable for their conduct. — 3 Starkie’s Evidence, 1276, note.
    ' These defects, whether permanent or temporary, must be unequivocal and plain, not an idle, frantic humor, or unaccountable mode of action, but an absolute dispossession of the free and natural agency of the human mind. — 3 Starkie, 1278, in note; Hale’s P. C., c. 4.
    In the Earl of Ferrer’s case, (State Trials,) although it was proven that his lordship was occasionally insane and incapable, from his insanity, of knowing what he did, or judging of the consequences of his actions, yet, as it appeared that when he committed the offence he had capacity sufficient to form a design, and know its consequences, he was found guilty and executed. — 3 Starkie, 1278, note.
    In this case, the witness proves that at the time, he heard plaintiff in error speaking the slanderous words, he was perfectly sane.
   Turley, J.

delivered the opinion of the court.

This is an action of slander brought by the defendant in error against the plaintiff in the Circuit Court of Macon county, and was so prosecuted that at the May term, 1845, a judgment was rendered against the .defendant for the sum of five hundred dollars. On the trial defendant introduced several witnesses by whom he proposed to prove, that he had been for many years past a diseased, whimsical and eccentric man; that his neighbors regarded him as a weak minded man, at times wholly deranged, and that during the summer, about the time, though not at the precise time of speaking the words, and before and after speaking the words as proved he was not in his sound mind. This proof was rejected by the court; and the question presented for our consideration is, whether in this there was error. That insanity is a good defence to this action'as well as all others.is not controverted, but it is argued that the proof offered was not sufficient to establish the fact; for that although he might have been deranged a short time before and after the speaking the words, yet non constat, that he was so at the time of the speaking.— This may-be so; but does it follow that the proof should not have been heard? The establishment of facts by human testimony is always matter of uncertainty; circumstances may deceive; a witness may commit perjury, but shall we not therefore hear the circumstances and examine the witnesses? So the proof of the existence of a fact at one hour and at another subsequent thereto, does not clearly establish the continued existence of the fact; yet, shall we not hear the proof as one means of ascertaining the disputed fact? ■ A man is found at ten o’clock in the morning a furious madman; he is also so found at four o’clock in the evening; in the intermediate space he has committed a crime. Shall this proof not be heard to establish the fact of his insanity during the intermediate space? . Surely it shall. For the law does not require. proof of the greatest possible certainty, neither does it require that it should be direct and positive;- it is sufficient if it be of such a character as will aid the jury in coming to a correct conclusion upon the fact. Of such character we think was the proof proposed in this case and rejected by the court. If the defendant was deranged a short time before and a short time after the speaking the words, we think in the absence of proof to the contrary, the jury might have inferred his insanity at that time, and have been well warranted in doing so; to require direct proof of insanity at that time, would be to require positive proof of the ex-r istence of a fact, when the law holds that it may be equally well established by circumstancial.

But it is argued that the judge afterwards received the proof, and that this corrects the error of its first rejection, — ■ This would be true if the fact were so, but it is not. The proof received as to his health and temper is of a different character altogether and by different witnesses, and not tending in any degree to establish the fact of insanity.

We therefore think that there was error on the part of the Circuit Judge in rejecting the testimony and reverse the judgment and remand the cause for a new trial.  