
    Richard Dove v. The State.
    1. Criminal Court op Montgomery. Judge may certify transcript to. An act establishing the Criminal Court of Montgomery county, requires the Circuit Court to certify to the Criminal Court, transcripts, &c., and the Criminal Court to enter the transcripts on the minutes; and enacts that the entry of record shall give to said Court jurisdiction, &c. Held that a transcript certified by the Circuit Judge, entered of record, &c., gave the court jurisdiction.
    2. Objection. What waived by plea. If any exception could have been taken, it was waived by plea of not guilty.
    
    3. Prosecutor. Omission to mark. What is. Where an indictment is marked, “no prosecutor necessary,” evidently because there was a coroner’s inquest and verdict; held, that the want of a prosecutor was cured by the Code, 5242, though the inquest was not sufficient to authorize the indictment.
    4. Insanity. Practice. Hypothetical case. When to be submitted. It is not error for the court, on a trial for murder, where insanity is set up as a defense, to require the defendant to submit his hypothetical case to his professional witnesses, before the rebutting evidence of the State is heard on the question of insanity. If evidence materially varying the hypothetical case, is afterwards introduced, the defendant must ask leave to re-examine as to the new matter.
    5. Error. Must be material. If the new proof does not make any change in the hypothetical case submitted, the defendant would not be injured by the refusal.
    6. Witness. Competency. Proof of. The State introduced a witness not bearing the name of the defendant, and the defendant objected to her competency, that she was his wife; but refused to examine her on her voir dire, and objected to her examination by the State. Held, that an offer to prove marriage “by reputation, cohabitation, conduct, and acknowledgment of the parties that they ware man and wife,” was properly refused. The defendant was bound to produce the best evidence, or account for its absence.
    7. Same. Same. Error in admitting, must appear. The exclusion or admission of the witness being a matter for the court, this court would not reverse, where upon, the whole case, they were satisfied that the witness was not the defendant’s wife, though there was no direct evidence on that point.
    
      8- INSANITY. Opinions of unprofessional witnesses. Unprofessional witnesses may he asked, after giving the circumstances and conduct of the party, to state their opinion as to his sanity; and the exclusion of such evidence offered by a defendant, is error.
    9. Hrkob. in charge. Flea, for defense. It is not error for the court, in his charge, to speak of the defense of insanity set up, as, a plea of insanity put in.
    10. Same. As to matter not controverted. In a case where the killing is proved beyond question, for the judge to change the jury that the plea of insanity put in, (the defense of insanity,) was an admission of the killing, is not error.
    11. Insanity. Quantum of proof. Doubts. A. charge that “the proof of insanity must be as clear and satisfactory, in order to acquit, as the proof of the crime ought to be to find'a sane man guilty;” or to charge that if the jury have a reasonable doubt as to the insanity of defendant, they ought to convict, is error.
    12. Same. Quantum of capacity. Uo person can be guilty of murder who has not sufficient discernment to distinguish between good and evil, and who has no consciousness of doing wrong in the act he is committing.
    Cases cited: Gibson v. Gibson, 9 Yer., 329; Norton v. Moore, 3 Head, 480; Coffee v. The State, 3 Yer., 283.
    PROM MONTGOMERY.
    Criminal Court, January Term, 1871, before Jakes E. Rice, J.
    Horace H. LurtoN, for tbe prisoner,
    insisted: 1st, that the transcript of the record from the Circuit Court of Montgomery, to the Criminal Court of Montgomery, is not properly certified. The proceedings had in the Circuit Court in regard to the bill of indictment in this ease, should have been certified to the Criminal Court, under the signature of the Clerk, who was the custodian of the record: Act of 1870, c. 115, s. 10, creating Criminal Court of Montgomery; Code, 3794. Definition of word “Court,” used in Act of 1870: Bouvier’s Law Diet., word Court.
    
      2d. There is no prosecutor marked upon the indictment. The indictment was based upon the inquest, set out on page 47. This inquest is insufficient in form and substance, and is not an inquest for “willful homicide or murder,” as required by the Code, 5097. As to what makes a valid inquest: Code, 5296 to 5309, inclusive. In this inquest, it does - not appear that the jurors were summoned, or were lawful men, or citizens of the county. It does not show when Diggins came to his death, or-where, or how, or whether feloniously. This is not a case of omission, to mark a prosecutor cured by section 5242 of Code. It is a question of the sufficiency of this inquest to render one unnecessary: Section 5242, strictly construed; 2 Cold., 184; 3 Cold., 118.
    3d. The court erred in refusing to allow the medical experts to be present, and hear the testimony; 7 Met., 500; Bennett & Heard’s Leading Crim. Cases,-, and cases there cited: Kay on Insanity, § 638.
    4th. The court erred in requiring the defendant to submit his hypothetical case to the opinion of medical experts, before the State’s rebutting proof upon the sanity of defendant had been heard.
    5th. The court erred in refusing to allow the defendant to show the incompetency of the witness, Virginia Holland, by showing that she was his wife by evidence of reputation, cohabitation and achiowledgment of the parties. Marriage may be so proven: 1 Tenn., 107, 396; 5 Cold., 539; Ewell v. The State, 6 Yer., 364.
    6th. The court erred in refusing to allow witnesses to the question of sanity, to express an opinion as to' sanity of defendant, after havsng stated facts upon which their opinion was based: Gibson v. Gibson, 9 Yer., 329; 6 Cold., 22; 16 Ala., 776; 24 Ala., 241; 12 Miss., 223; 12 Ohio, 483; 19 Ohio, 303; 6 Geo., 324; 43 Mo., 133.
    7th. The court erred in stating to the jury in his charge, “that the plea of insanity is put in. He admits that he killed Diggins, but says his mind was diseased at the time of the killing; that he was incapable of committing the crime. No plea of insanity was put in, and the defendant never admitted the killing of Diggins. By an examination of the record, the court will see that the proof wholly fails to prove that Diggins died of the blows inflicted upon him by Dove; nor is there any proof as to the character of the wounds. Yet the court charges the jury that the killing is admitted.
    8th. The court erred in charging the jury that the proof of insanity must be as clear and satisfactory, in order to acquit on the ground of insanity, as the proof of the crime ought to be to find a sane man guilty: Code, 4597; 9 Hum., 670; 7 Met., 500; 3 Yer., 283; 1 Grey, 61; 7 Cold., 92; 29 Penn., 429; 31 Ill., 393; 39 III, 458; 2 Ala., 43; 16 N. Y., 58; 43 N. H., 224; 17 Mich., 9; 19 Ind., 170; 40 Ill., 352; 28' Ala., 692; 7 Grey, 583. And the attention of the court is particularly called to the copious notes and thorough discussion of this question, in 1st Bennett & Heard’s Leading Grim. Cases, pp. 303 to 308, inclusive; and to the case of The People v. Schryver, 42 N. Y. Rep., to be found in 1 Am. Rep., 480; 2 Ala., 43; 10 Ohio' State Rep., 598; 43 Mo., 133; 1 Bennett & Heard’s Leading Crim. Cases, pp. 94 to 131, where will be found a review of the whole law of insanity, ancient and modern. Also, to January number, 1870, of Am. Law Eev., article on insanity; 4 Met., (Ky.) 227; 1 Duvall, (Ky.) 224; and authorities cited.
    Attorney General Heiskell, for the State.
    The charge of the court, that, if there was a reasonable doubt as to insanity, the jury ought to convict, is right: It. v. Stolces, 3 Car. & Kir., 185, cited in Tay. Med. Jur., 681. The twelve Judges in McNaughton’s case, say: “The july ought, in all cases to be told that every man should be considered of sane mind until the contrary was clearly proven in evidence; that .before a jilea of insanity should be allowed, undoubted evidence ought to be adduced that the accused was of diseased mind, &c.: Brit. & For. Med. Eev., July, 143, p. 273; BucknilPs Cr. Lunacy, 44; Tay. Med. Jur., 686. Mr. Erskine, in his defense of Hadfield, speaks of the rules of law as to insanity as being justified “from the extreme difficulty of tracing with precision the secret motives of a mind deprived by disease of its soundness and strength: Erskine’s Speeches, vol. 4, jd. 123; 1 Archb. PI. and Ev., p. 37 to 42; 1 Whart. Am. Cr. L., §§55 and 711.
    It was decided by fourteen of the fifteen English Judges, that there must be strong proofs of insanity before certain questions as to the opinions of medical experts, could be asked. Tay. Med. Jur., 695, citing Med. Gaz., vol. 46, j>. 240.
    In Com’l v. Mohler, 4 Barr., 266, Gibson, C. J., declares that, to establish homicidal insanity as a justification, it is necessary to show its existence by clear proofs: See Tay. Med. Jur., 688.
    
      In Com’l v. Smith, Allison, J., charged that the defense “requires to be examined with the greatest care, nor should it be relied on unless established by the clearest proof: Tay. Med. Jur., 689. •
    In People v. Kleim, cited in Law. Rev., vol. 4, 237, Edmonds, J., charged that insanity must be “clearly proved.”
    The English authorities establish the rule. Those before the Revolution are binding on the court. Those since, and the American authorities, are only persuasive: Heiskell’s Dig. Tit., Authority.
    That the experience of other States is not such as to encourage judicial legislation to pander to sentimental tenderness. English statistics show that out of 120 persons acquitted on the ground of insanity, 79 were not insane. Judicial legislation can not provide asylums, and as its powers are limited, ought to be sparingly used.
    That doubt of insanity and doubt of guilt do not stand on the same footing. Rules of law are not matters of simple logical consistency. Policy influences them. Every man is presumed to know the law; to contemplate the consequences of his- acts; malice is presumed from the use of a deadly weapon, or from the fact of killing; not because courts suppose these things are universally true in fact, but that policy demands their adoption. Policy, not logic, is the foundation of the rule as to drunkenness, that it shall not excuse crime. The legal reason for it is, logically, nonsense; practically, wise. The same policy demands that we shall adhere to the English rule as to proof of insanity, not make a new one, as the courts of other States have done.
    The defendant can not be sent to an Insane Asylum on a doubt as to his insanity. He must, therefore, in all doubtful cases, be turned loose upon the country.
    In doubtful cases, the prisoner ought not to be punished capitally, but he is a fit subject for imprisonment on all the grounds for which punishment is applied. Eor restraint, for reformation, and for example. The necessity of restraint is of the highest. All admit the capacity of the insane, in many degrees and stages, to be influenced, and they are, 'capable of influence by example, while those who make pretense of insanity especially need the example.
    On the admission of opinions, he insisted that the rules of evidence were more stringent in many cases in criminal than in civil cases. That the rule of responsibility was different, and that the State could also introduce opinions which might greatly prejudice the prisoner. The English case, cited from Taylor, 695, is conclusive on this question.
    He argued the other questions orally.
   Nicholson, C. J.,

delivered the opinion of the Court.

Bichard Dove was tried and convicted of murder in the first degree, for killing William Diggins. The jury found that the murder was committed with mitigating circumstances, whereupon he was sentenced to the penitentiary for life. He has appealed to this court. The case was tried at the January Term, 1871, of the Criminal Court of Montgomery county, where the following evidence was adduced:

The first witness introduced by the State was Virginia Holland. Defendant objected to her examination on the ground that she was his wife, but refused to examine her on voir dire, and objected to her examination by the State to prove her competency. Defendant offered to prove by evidence aliunde, that she was his wife. The court gave leave to prove that fact. Defendant then offered to prove the marriage of the witness with defendant, by reputation, cohabitation, conduct, and acknowledgment of the parties; and tendered proof of that character, but the court refused to hear such proof, and ruled that a marriage could only be shown by the certificate of marriage, the testimony of the officer who performed the ceremony, or the evidence of witnesses who witnessed the performance of the ceremony. Defendant excepted to the ruling. Witness then proved that she had been living with defendant three or four years. They were living in a house in the coaling ground of Poplar Springs Furnace, in Montgomery, at the time of Wm. Diggins’ death, which took place in 1869. Dove was working for Diggins in the coaling grounds. Dove, witness, her two children, her mother, her sister, and Diggins, all lived in the same house, it having but one room. There were three beds in the room; witness and Dove occupied one, her mother and sister another, and Diggins and her oldest child, seven years old, the third. Dove and Diggins ate supper together; they were very friendly; there was no bad feeling between them; they laughed and talked together, and then went to bed, and were so laughing and talking when witness went to sleep. About 2 o’clock at night, witness was awakened by the blows being struck by Dove with an axe, and by the cries of Diggins, who said: “Oh! Dick; oh! Dick.” Witness saw and heard Dove strike Diggins two or three blows with the axe. She jumped up and went to Diggins’ bed, saying, “Dick, you have killed my child!” She pulled the child from under Diggins., Dove said: “You see what I have done, and it is not the first 1 have done that way. I have done many a one that way.” He walked across the floor, and then said: “ Now if the old son-of-a-bitch has any money, I interrd to take it to travel on;” and took up Diggins’ pants, and took out his pocketbook and examined it, and said: “He’s got no money; here’s some scrip; I won’t have that; but I’ll take his knife;” and did put it in his pocket. He then threw a blanket over Diggins. Dove then asked witness what she was going to do; whether she was going with him. Sh,e replied she did not know; that she didn’t want to go with him. He then went out, and came in again with the axe in his hand and said: “Now say what you are going to do, and say it quick. I can’t leave you to witness against me. If you don’t go with me, I shall see the last of all of you. You sha’n’t be left for witnesses against me.” He then told witness’ mother to take Diggins’ chickens to the Furnace, about a mile and a half or two miles, and sell them, and collect a half dollar a negro owed him, and meet him at the Furnace that night at 12 o’clock. Witness, Dove, and her two children, then went off into the woods; but; before leaving, Dove hid the ase under the sill of the house, where he said it could not be found. They stayed in the woods all day. Dove kept the knife in his hand, and said he would kill witness if she tried to leave him. Late in the evening they went towards the Furnace, and upon getting near the road, she saw Mr. Mathis and Mr. Brown, and she ran to them with her children, and asked for protection. She went on with them to the Furnace. Dove had lived with Diggins five or six months. She said Dove was once jealous of Diggins, but he had been satisfied about that. Diggins was an old gray headed man, about sixty years old. He was a quiet, good old man. She said Dove was a very passionate man; often got very mad without any cause; would be violent and irritable when no one had troubled him. Sometimes threatened witness and her mother, and had struck her without provocation. He frequently threatened to kill somebody; frequently said he would have the heart’s blood of somebody, walking the floor, in a great fury, throwing his arms wildly about, though nobody had done anything to him. His threats were not at anybody in particular. During one evening, while they were all sitting around the fire, he jumped up, gathered a chair, and tried to strike Diggins; but was ■ prevented by a young man present. There was no cause for this, no quarrel, nor was any warning given of his attack. He was not drunk, but had taken two or three drinks. He often complained of head-ache; he so complained during the day before Diggins’ death. To the question by the Attorney General, whether Dove, from all she knew of him, was a man of sane or insane mind, answered: She never saw anything wrong about him; he was a very quiet man; a sullen and irritable man often, but talked like a man of sense.

Sarah Holland, the mother of the last witness, gave the same account of the transaction, and stated the character and peculiarities of Dove about as the last witness.

John W. Mathis proved that Dove was a lazy, trifling, indolent man; he was a strange man; nobody knew him; witness never knew him, though he had lived with him.

Sam. Tally, worked with Dove; he talked like any other man; he never had much to say; was very quiet. One day, when they were working, he suddenly stopped, and said, with an oath, “he would kill any man who would not work for himself, but made other people work for him.” He said Diggins did not work for himself, but made him work for him; that he would kill him before he would stand it any longer. This was some time before Diggins was killed. Diggins was not present, and they had no quarrel. He talked and acted like any other man.

The State introduced and read a paper purporting to be the return of a jury of inquest over Diggins’ body, over the objections of defendant.

Jefferson Sly, for defendant, had employed Dove to-work. He quit without cause; witness went to see him; complained of his head; acted strangely; walked the floor, and acted like a drunken man, but he had no whisky. While Dove worked for witness, he was very taciturn and gloomy; would sit by himself for hours at a time; indulged in talking to himself a great deal; would mumble and sing to himself; complained often of pains in his head; wouldn’t work as long as he had anything in his house to eat. He was asked by defendant’s counsel what, from all he had stated, was the condition of his mind: was he of sound or unsound mind? The Attorney General objected to the question, and the objection was sustained by the Court.

James Andrews, T. J. Sly and Jeff. Wojoten, testified to similar characteristics of Dove as the last witness.

Patsey Cozzart, a sister of Dove, testified that he was 47 or 48 years of age; was born in Alabama; went to East Tennessee, and lived there until he was 13 or 14 years of age, when he came to Nashville. He was a clerk for Mr. Norman, in the grocery business, one or two years. While engaged with Mr. Norman, he received á bad wound on one side of his head; he was not expected to live. He was deranged from the wound. He talked silly and incoherently. He stayed with witness, while he was laboring under the wound, about four months. He then left, and returned to Mr. Norman’s. Pie was not then well; he was not much better. He complained of pains in the head all the time. He received the injury about fourteen or fifteen years ago. Before receiving the injury he was as smart, active and energetic as any man. She never saw him but once after he left, and that was twelve or fifteen years ago. She saw him but a few minutes; he said his head was not well.

The counsel for the defendant announced to the. Court, that he expected to examine several physicians, as experts, on the subject of defendant’s sanity, but desired, before doing so, that the State might examine any further witnesses she might have on that subject. The Court ruled that the defendant must complete his testimony before the rebutting evidence of the State should be introduced. Defendant excepted to the ruling.

Dr. D. F. Wright testified, that he had been practicing as a physician and surgeon for twenty-seven years. He had examined the head of defendant, and found that he had received an injury to his head, apparently from a blow. It appears that there are two injuries to his head — one on the right side, just below the crown; the skull has been fractured, and a portion of the bone is depressed upon the brain. The depressed portion is fractured about the centre, and a piece of the skull bone is broken off, which protrudes through the fracture, and is now sticking down upon the brain. One of the injuries may have been the result, of concussion, resulting from the blow which caused the deju’ession. Without knowing anything of the previous history of the defendant, witness said such an injury was bound, more or less, to produce a diseased mind. Such an injury might produce disease of the mind that might lay dormant an indefinite length of time, or it might indicate its presence only in paroxysmal insanity. Its presence might only be detected by some startling crime, that would, for the first time, call attention to symptoms that only an experienced person could have noticed. Paroxysmal insanity would be the character of insanity most likely to result from such an injury. During the intervals between the paroxysms of one afflicted with that form of insanity, tbe patient might appear reasonably rational, and might converse with intelligence. The symptoms of paroxysmal insanity are, moodiness, gloominess, melancholy, love of solitude, a feverish restlessness, irritability, passion without apparent cause. The persons afflicted often commit the most horrible crimes without any known cause, murders without motives discernible, and often upon those persons to whom they are most dearly attached, or those to whom they are indifferent. The patient is often overpowered by an impulse to commit murder, and yet is conscious of the crime he commits, and of the penalty incurred. lie may converse rationally about his crime, confess, or seek to conceal it. An effort to conceal the crime, or to escape, would not be evidence of sanity.

The counsel for defendant then submitted to the witness a written synopsis of the facts, as proven in the case, relative to the condition of defendant’s mind, and asked his medical opinion on the hypothetical case stated. He said the symptoms there stated were the precise symptoms of one laboring under paroxysmal insanity, and that he should say the strong probability was, that he was insane at the time of the commission of the crime; that, without personally knowing the facts and the defendant, he could not put it in stronger language.

Drs. T. T>. Johnson and J. M. Larkins were asked their opinions on the same hypothetical state of facts, and they fully concurred in the opinion given by Hr. Wright.

After charging the law correctly as to the several grades of homicide, the Circuit Judge proceeded to instruct the jury on the defense of insanity, as follows:

“The law presumes a man to be sane, until the contrary is proven. ' The evidence of the insanity of defend-|nt must be as clear and satisfactory to overturn the presumption of the law in favor of sanity, as it is required to be, to overturn the presumption in favor of innocence. If the testimony leaves only a doubtful question, whether he was insane at the .time of the killing, the presumption of the law turns the scale in favor of the sanity of defendant. In such case the law holds the defendant responsible for his acts. If the evidence leaves it doubtful iu your minds, whether the defendant killed the deceased, then you should acquit; for there you find a reasonable ground for doubt, whether the defendant committed the homicide; and in such case, the testimony is not sufficient to overturn the presumption of innocence. But where it is admitted, or clearly proven, that the defendant committed the homicide, but it is insisted he was insane at the time he did it, and the evidence leaves the question of sanity in doubt, then you should find him guilty; for the other presumption arises, namely: that every man is presumed to be sane until the contrary is proven; or, in other words, where evidence of sanity on one side, and of insanity on- the other, leaves the question in an even balance, or so nearly poised that you have reasonable doubt of the insanity of the defendant, he is in that ease to be considered sane, and therefore responsible for his acts. The proof of insanity at the time of committing the homicide, ought to be as clear and satisfactory in order to acquit on the ground of insanity, as the proof of committing the act ought to be to find a sane man guilty.”

Several errors have been assigned on the record in this case, which we will now proceed to examine:

1st. This cause was transferred from the Circuit Court of Montgomery county, to the Criminal Court of that county, under the provisions of the Act of 1870, e. 95, establishing a Criminal Court for Montgomery county. It is insisted that the transcript of the record from the Circuit to the Criminal Court, is not properly authenticated. It is certified by the Circuit Judge, and not the clerk of the Circuit Court. The tenth section of the act requires the Circuit Court to certify to the Criminal Court, transcripts of the entry and finding of all indictments and presentments now pending in the Circuit Court, which shall be transcribed upon the records and minutes of said Criminal Court, and said entry of record shall give to said Criminal Court full and complete jurisdiction of said criminal, matters. The third section requires the Circuit Court to transfer all bills of indictment and presentment to the Criminal Court, for trial and proceeding therein; and section four makes the clerk of the Circuit Court the clerk of the Criminal Court. After the transcript from the Circuit Court was entered upon the record and minutes of the Criminal Court, and after the bill of indictment was transferred to the Criminal Court, the defendant was arraigned upon the indictment, and put in his plea of not guilty. We do not doubt that a transcript, certified by the clerk of the court, or by the judge thereof, after its entry on the records of the Criminal Court, gave that court full jurisdiction of the case; and if any doubt had existed as to this, the objection ought to have been taken before pleading. But we think the Criminal Court bad full jurisdiction of the case, and overrule this objection.

2d. It is insisted that, as tliere was a prosecutor marked on the indictment, it was error not to arrest tlie judgment. The indictment is marked, “no prosecutor necessary,” evidently because there was the return of the jury of inquest. But it is immaterial whether the return of the jury inquest was a valid or an invalid return. If the former, no prosecutor was necessary; if the latter, the omission to mark a prosecutor was cured by section 5242 of the Code.

3d. It is said the court erred in requiring the defendant to submit his hypothetical case to the medical experts, before the State’s rebutting evidence on this question of insanity was given to the jury. The court followed the usual practice of requiring the defendant to adduce all his evidence before the State should be called on to bring its rebutting evidence. If the defendant had applied to the court, affer the State had finished its rebutting proof, to examine the medical experts, with the additional evidence of the State before the jury, and the application had been refused, it would have been error. But no such application was made, nor was the defendant in any way damaged, as the State introduced no rebutting evidence which made it necessary to re-examine the medical experts.

4th. It is assigned in error, that the court refused to allow the defendant to show the incompetency of the witness, Virginia Holland, by proving her marriage with the defendaut by reputation, conduct and acknowledgment of the. parties. The refusal of the judge to hear the evidence tendered, must be understood as having special reference to the state of the question then before him. It was a question for the court, and not for the jury. The State had introduced a witness not bearing the name of the defendant. The defendant objected to her competency, alleging she was his wife. But he refused to examine her on her voir dire, and objected to her examination, as to her competency, by the State. The court allowed defendant to introduce proof of the marriage aliunde. He was bound then to produce the best evidence. This he did not do, or show any excuse for not doing. The court thereupon properly rejected the secondary evidence. It was manifest that the witness was not, in fact, the wife of the defendant. There was no error in this action of the court.

5th. It is insisted that it was error in the court to refuse to allow witnesses, to the question of sanity, to express .an opinion as to sanity of defendant, after having stated facts upon which their opinion was based. This question arose in the case of Gibson v. Gibson, 9 Yer., 329. Upon examination of the authorities, which were not found very satisfactory, the court laid down the following propositions: “First — -Attesting witnesses, and they only, are trusted to give their opinion merely, and without cause or reason assigned, of testator’s sanity. Second — Physicians may state their opinion of the soundness of a testator’s mind, but they must state the circumstances or symptoms from which they draw their conclusions. As to all others, their opinions, considered merely as opinions, are not evidence. But having stated the appearance, conduct or conversation of testator or other particular fact from which his state of mind may be inferred, they are at liberty to state their inference, conclusion or opinion, as the result of those facts.” The court adds: “After all, it is the facts which a witness details, the conduct which he Rescribes, which chiefly and principally constitute the testimony to be relied on.” This question was again fully examined in the case of Norton v. Moore, 3 Head, 480, where the same rule was adopted. The rejection of the opinions of the witnesses, based upon the facts and circumstances stated by them, was erroneous.

6th. It is insisted that the judge trenched upon the province of the jury in charging them as follows: “But the plea of insanity is put in for the defendant. He admits that he killed the deceased, but says that his mind was so much diseased at the time of the killing that he was incapable of committing the crime of murder, he being insane.” The obvious meaning of the judge was, that the plea or defense of insanity was put in for the defendant, and not that the defendant had put in a formal plea of insanity to the indictment. The residue of the statement was evidently intended to instruct the jury, that, in relying upon the defense of insanity the killing was necessarily admitted. We can not well see how the jury could have been mislead, or how they could have misunderstood the true meaning and purport of this language. We, therefore, think, this assignment of error, is not well taken.

7th. The last and most important error assigned is, as to that portion of the charge already quoted, in which the judge, among other things, said: “The proof of insanity must be as clear and satisfactory, in order to acquit on the ground of insanity, as the proof of the crime ought to be to find a sane man guilty.” The plain and unambiguous meaning of this language is, that the defense of insanity can not be available, unless it is proved beyond a reasonable doubt. In another portion of the charge, the judge says: “ That, if the evidence of sanity and of insanity be on an even balance, or so nearly an. equipoise that you have a reasonable doubt of the insanity of the defendant, he is in that case to be considered sane, and therefore, responsible for his acts.” It is conceded that this cause is sustained by English cases, and by cases in a few of the States, but it is certain that it is in contravention of a large number of decisions in other States of the Union.

We have had no case in our own State where the exact question involved in the present one has arisen; but we consider the principle which must govern the decision as having been laid down in the case of Coffee, Ridley & Short v. The State, 3 Yer., 283, and followed ever since in subsequent cases. These cases were determined in 1832, and separate opinions were given by Judges Catron, Green and Peck. The cases had been tried before Judges Stuart and Kennedy, of whom Judge Catron said: “They are gentlemen of decided talents, accurate and extensive information on the criminal law, and great experience.” They had charged the juries, “that the law presumed the defendant innocent, and that presumption stood until the fact of killing was clearly made out by proof; and if they entertained a reasonable doubt as to the fact of killing by the defendant, they should acquit him; but if the fact of killing by the defendant be proved, the law presumed him guilty of murder, unless the proof showed clearly and satisfactorily the offense was one of less magnitude; and therefore, if they entertained doubts under the testimony, whether the act amounted to murder or manslaughter, they were bound to find defendant guilty of murder, as it lay upon the defendant to show clearly and beyond a •reasonable doubt, that the offense was not murder, but manslaughter, unless it appeared otherwise in the testimony of the State.” Judge Catron said: “The defendant is charged with the fact of killing and the intent with which it was done, and the fact and the intent, must concur to constitute the crime. The fact and intent are charged by the State, and must be proved to the conviction of the jury. But suppose they are not convinced that it is their duty to find the defendant not guilty; that is what is meant by a reasonable doubt.”

In such case, he says: “If, from this whole body of evidence, they are convinced of the killing, but are not convinced that it was done with malice, they ought not to find the defendant guilty of murder.” Judge Green said: “There is no reason in saying that a jury must acquit upon a doubt as to the fact of killing, and yet upon a stronger doubt as to the equally important fact of malice, they must convict. It is admitted that if this state of the mind (doubt) exist as to the fact of killing, an acquittal must follow. But not so as it relates to the malice. And why? Because we are told there is a legal presumption to afford the mind a resting place. In answer to that proposition, it has already been shown that this legal presumption, which was prima facie evidence of the fact, has been opposed by evidence so tveakening its force as no longer to be satisfactory, and consequently a doubt as to the fact thus presumed, must now exist. I hold, therefore, that to warrant a verdict of guilty of murder— the whole evidence taken together — must generate full belief of the guilt of the party as .consisting in the killing with malice. Whether, therefore, the doubt exists as to the killing, or as to the evidence of malice in the perpetrator, it results in the same thing — that is, a doubt whether the accused be guilty of the crime of murder.” Judge Peck concurred in the reasoning, and conclusions of Judges Catron and Green. The charges of the Circuit Judges were overruled, and from that time to the present, the law has been settled in our State, that, if the proof fails to generate full conviction of every material ingredient constituting the' crime of murder, the defendant must be acquitted. \ But the question is now raised, whether this principle of law is applicable to a case where there is reasonable doubt of the sanity of the defendant? The Criminal Judge, it has been seen, adopts the same doctrine as to reasonable doubt in the matter of sanity that Judges Stewart and Kennedy did as to the presumption of malice from killing.

Is there any sound reason upon which it can be held that a doubt as to the malice in the killing shall operate as an acquittal, but that a doubt as to the sanity of the defendant at the time of the killing shall not so operate?

“If any person of sound memory and discretion, unlawfully kill any reasonable creature, in being, and under the peace of the State, with malice aforethought, either express or implied, such person shall be guilty of murder”: Code 4597. "We have adopted the definition of murder given by Sir Edward Coke. The person to be guilty of murder must be of sound memory and discretion; “for,” as Blackstone says, “lunatics or infants are incapable of committing any crime, unless in such cases where they show a consciousness of doing wrong, and of course a discretion or discernment between good and evil.”

Assuming that this interpretation of the words “sound memory and discretion” is sufficiently accurate, it may be safely stated that no person can be guilty of murder who has not sufficient discretion or discernment to distinguish between good and evil, and who has no consciousness of doing wrong. The law presumes every person to have this sound memory and discretion. Therefore, when the defendant was put upon his trial for murder, it was not necessary for the State to adduce proof of bis sanity. The presumption of law stood for and supplied the proof.

If he relied on the defense of insanity, the burden of proof was upon him to show that he was not of sound memory and discretion, unless the proof of the State showed that he was not of sound memory and discretion. To warrant a conviction, it must appear that the accused was capable, at the time of the killing, of distinguishing between good and evil, and had a consciousness of doing wrong. If he was thus sane, he could act willfully, deliberately, maliciously and premeditatedly. "We have seen, that, to justify a conviction for murder in the first degree, the State must show beyond a reasonable doubt that the killing was done willfully, deliberately, maliciously and premeditatedly. All these are essential ingredients in the offense, and all must be proved beyond reasonable doubt. But, suppose the proof in the cause makes it an even balance in the minds of the jury, whether the defendant was sane or insane. How, in that state of doubt, could the jury find that the defendant did the killing willfully, deliberately, maliciously and premeditatedly? They are in doubt about his being of sound memory and discretion. Of course they must doubt whether he could have done the killing willfully, deliberately, maliciously and premeditatedly. Yet, in the case before us, the judge instructed them that if the proof left their minds in equipoise as to the sanity or insanity of the defendant, the presumption of law turned the scale, and the defendant must be regarded as sane. The presumption of sanity stands for sufficient proof of sanity until the presumption is overturned. When the proof of insanity makes an equipoise the presumption of sanity is neutralized — it is overturned, it ceases to weigh, and the jury are in reasonable doubt. How, then, can a presumption, which has been neutralized by countervailing proof, be resorted to to turn the scale? The absurdity to which this doctrine leads will be more obvious by supposing that the jury should return a special verdict. It would be as follows: “We find the defendant guilty of the killing charged, but the proof leaves our minds in doubt whether he was of such soundness of memory and discretion to have done the killing willfully, deliberately, maliciously and premeditated] y.v Upon such a verdict no judge could pronounce the judgment .of death upon the defendant.

It is impossible to read the evidence in this case and not feel shocked by the enormity and atrocity of the crime, if we assume that the defendant was -of sound memory and discretion. An old, quiet, inoffensive man is brutally cut to pieces with an axe while he is sleeping peacefully in the room with the defendant and his family. No provocation had been given, there was entire friendship and cordiality between them when they retired to bed. Yet the jury found that the murder was attended with mitigating circumstances, and the defendant was sentenced to hard labor for life in the penitentiary.

We have searched the record in (vain for any semblance of a single mitigating circumstance. We are forced to the conclusion that the jury doubted whether the defendant was sane, and being instructed by the court that such doubt would not justify an acquittal, they gave the defendant the benefit of this doubt as a mitigating circumstance by way of saving him from the gallows. It has been earnestly and ably pressed upon us in argument, that the doctrine charged by the Criminal Judge ought to be adopted from considerations of public policy. It is conceded that the doctrine ought not to be carried to the extent of subjecting defendant to capital punishment, about the soundness of whose memory and discretion the juries may have doubts. This, it is admitted, would be too shocking to humanity to be tolerated. But t is insisted that the peace of society, and the prevention of the repetition of such horrible tragedies by defendants whose sanity is doubtful, would justify the courts in bolding that defendants who rely upon the defense of insanity should be required to establish their defense beyond reasonable doubt, otherwise that they should be held responsible as criminal, and subjected to' imprisonment for life.

The force of this argument is much strengthened by the facts proven as to the violent character of this defendant. To turn him loose might be to subject some other innocent victim to the same fate with Diggins. But this is not the tribunal to which the consideration of public policy, can be appropriately addressed. Our business is to administer and not to make the law. We find the law well settled, that when the State charges a citizen with crime, his guilt must be established beyond reasonable doubt. We apply this rule to the worst men about whose sanity no doubt is raised, and turn them loose to repeat their crimes, because they are entitled to the benefit of the humane doctrine of doubts. With what show of reason or humanity could we reverse the rule as to that unfortunate class of citizens whose memory and discretion is found' to be of doubtful soundness, and subject them to imprisonment for life. If the law, as it now stands, furnishes no remedy for the protection of society against the danger of turning loose homicidal maniacs, it is time that the Legislature had provided a remedy. But it seems to us that every society has the remedy within its reach. We do not see what obstacle is in the way of having all such cases tried by regular proceeding to ascertain the fact of insanity, and for the proper disposal of its unfortunate victims: Code 1553. But Section 1654 of the Code provides specially that when the defense of present insanity is urged on the trial of a person charged with a crime which subjects him to imprisonment or death, it is the duty of the judge to submit the question of sanity to the jury as a preliminary question, and if the defendant is found to be insane, the judge orders him to the Lunatic Asylum. The facts of this case might well have induced the judge to follow the directions of this section of the Code.

Our duty is discharged in declaring that the defendant has been convicted and sentenced to imprisonment, for life contrary to law.

We reverse the judgment, and remand the case for a new trial. 
      
       The argument that it was intended to urge, was, that the established law of England recognized this lule, and that policy forbade a departure from it — not that a new rule should be adopted upon such considerations now.
     
      
       The obstacle lies in the fact that the defense of present insanity is never put in when the fact of insanity at the time of the offense will answer the purpose.
     