Boswell v. State.

murder, for example - and which facts are common to every case within the class, and those occasional, or exceptional questions of fact, which do not necessarily belong to the class, but may be termed the accidents of the case. That a reasonable creature in being was killed; that the prisoner on trial was the agent or manslayer, and that he did the act with malice aforethought, express or implied, are facts necessary to be shown in every successful prosecution for murder. To this extent, and to each of these constituent, indispensable elements, the burden rests with the State to prove their existence, beyond a reasonable doubt. The presumption of innocence, in which all men are primarily panoplied, follows, and guards them through all the stages of the trial, until these uniformly constituent facts are established. The law, in its firm yet conservative morality, declares that all men, who have attained to years of discretion, are presumed to be of sound mind; and without any proof of that fact, resting securely in the presumption of sanity, it adjudges the offender shall suffer its penalties. But there are persons of mature years, whose minds are so diseased, as that they are incapable of discriminating between right and wrong; and this defense is set up in avoidance of the facts which otherwise stamp the prisoner as a murderer. We here enter the field of the exceptional, the accidental; and inasmuch as the law presumes sanity, that presumption, like that of innocence, should prevail throughout the trial, until it is overcome. And whether the evis dence of insanity arise out of the testimony which proves the homicide, or is shown aliunde, reason and analogy alike declare it is insufficient, until it overturns the presumption of sanity.

In Commonwealth v. Eddy, 7 Gray, 583, the court said: "The burden is on the Commonwealth to prove all that is necessary to constitute the crime of murder. And as that crime can be committed only by a reasonable being-a person of sane mind-the burden is on the Commonwealth to prove that the defendant was of sane mind when he committed the act of killing. But it is a presumption of law that all men are of sane mind; and that presumption sustains the burden of proof, unless it is rebutted and overcome by satisfactory evidence to the contrary. In order to overcome this presumption of law, and shield the defendant from legal responsibility, the burden is on him to prove to the satisfaction of the jury, by a preponderance of the whole evidence in the case, that at the time of committing the homicide he was not of sane mind."

:

Boswell v. State.

Pennsylvania stands unmistakably committed to the same doctrine. Ortwein v. Commonwealth, 76 Penn. St. 414; s. c., 28 Am. Rep. 420. The opinion is both able and philosophic. Says AGNEW, C. J. "Insanity is a defense. It presupposes the proof of the facts which constitute a legal crime, and is set up in avoidance of punishment. Keeping in mind, then, that an act of willful and malicious killing has been proved, and requires a verdict of murder, the prisoner, as a defense, avers that he was of unsound mind at the time of the killing, and incapable of controlling his will; and therefore that he is not legally responsible for his act.

Soundness of mind is the natural and normal condition of men, and is necessarily presumed; not only because the fact is generally so, but because a contrary presumption would be fatal to the interests of society. No one can justly claim irresponsibility for his act contrary to the known nature of the race of which he is one. He must be treated and be adjudged to be a reasonable being, until a fact so abnormal as a want of reason positively appears. It is therefore not unjust to him, that he should be so conclusively presumed to be, until the contrary is made to appear on his behalf. To be made so to appear to the tribunal determining the fact, the evidence of it must be satisfactory, and not merely doubtful, as nothing less than satisfaction can determine a reasonable mind to believe a fact contrary to the course of nature." To the same effect are State v. Smith, 53 Mo. 267; People v. McDonnell, 47 Cal. 134; State v. Lawrence, 57 Me. 574; Leoffner v. State, 10 Ohio St. 599; State v. Starling, 6 Jones (N. C.), 366; State v. Felter, 32 Iowa, 50; McKenzie v. State, 26 Ark. 332; Whart. on Hom., § 665; 2 Greenl. Ev., § 373. Mr. Wharton, in his work on Homicide, § 666, classes New York among the States that hold insanity is a defense, the affirmative proof of which rests with the defendant. The question, we think, is somewhat unsettled there. Flanigan v. People, 52 N. Y. 467; s. c., 11 Am. Rep. 731.

There are respectable authorities to the contrary, but we decline to follow them. We hold, then, that insanity is a defense which must be proven to the satisfaction of the jury, by that measure of proof which is required in civil causes; and a reasonable doubt of sanity, raised by all the evidence, does not authorize an acquittal. The doctrine we have been combating is, we think, purely American; and we regard it as an erroneous application of the principle

Boswell v. State.

of presumed innocence. One disputable presumption should not be allowed to override and annihilate another.

Under the rules above declared, the entire affirmative charge of the Circuit Court is free from error. Of the charges asked by defendant, those numbered 1, 2 and 3 were abstract, there being no evidence to support them; those numbered 4, 5, 6, 10, 11, 12, 13, were all rightly refused, under the principles we have declared above; charges 6, 7 and 8 were calculated to mislead the jury, if they were not abstract, and were rightly refused; the two charges given at the instance of the prosecution are free from error; and the judgment of the Circuit Court must be affirmed.

It is therefore ordered and adjudged that on Friday the eleventh day of June, 1880, the sheriff of Talladega county execute the sentence of the law, by hanging the said George Boswell by the neck until he is dead.

BRICKELL, C. J., dissenting.

Judgment affirmed.

NOTE BY THE REPORTER. - See contra, Guetig v. State, 66 Ind. 94; s c., 32 Am. Rep. 99. In Webb v. State, 9 Tex. Ct. App. 490, the same doctrine was announced as in the principal case, HURT, J., dissenting. The court said:

"The most formidable question in the case under consideration grows out of the refusal of the court to give in charge to the jury a special instruction requested, as follows: That if the jury entertain a reasonable doubt of the sanity of the accused at the time he shot Charles Foster, they should acquit him.' Upon the issue of sanity and insanity the general charge given followed almost literally the law as enunciated in Webb v. State, 5 Tex. Ct. App. 596, and which was but a reproduction of the doctrine upon that subject as declared in 2 Greenl. on Ev., §§ 372, 373 After making an appropriate application of these rules of law to the facts, the jury were further charged: 'It is your province to determine from all the evidence in the case whether the defendant was sane or insane. Every defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence, beyond any reasonable doubt, and in case of a reasonable doubt as to his guilt he is entitled to be acquitted. Therefore, if you have any reasonable doubt of the guilt of the defendant, under the evidence in the case and the law as herein given you, you will acquit him.' Here it will be seen that the court had charged the reasonable doubt fully with regard to the whole case made by the evidence. Was the defendant entitled to, and was it incumbent upon the court to further charge, in addition, the reasonable doubt specially with regard to the issue of his sanity?

"In this State this question has never heretofore, so far as we are aware, been directly adjudicated. If we look to the English decisions, or the decisions of the other State courts, we find much contrariety of opinion upon the subject, some courts holding that the burden of proving his insanity rests upon the defendant who interposes it, and that he is in duty bound to establish it as an independent fact, beyond all reasonable doubt; others hold that the fact must be established by defendant, but need only be shown by a preponderance of evidence, as in civil cases, sufficient to overcome the presumption of sanity, and not necessarily to the exclusion of the reasonable doubt; whilst others again- and these may be classed as of the modern or progressive school - insist that inasmuch as the burden of proof never shifts from the State in any criminal case, but rests upon her to establish every element necessary to constitute the crime alleged, and inasmuch as the question of a defendant's sanity enters into and ends to outrovert the most important constituent of

crime,

are,

Boswell v. State.

to wit, the criminal intent,-- that therefore the State must affirmatively establish the fact of sanity beyond a reasonable doubt. Those curious to investigate these different theories, and the grounds upon which they rest, will find the authorities collated and discussed in Bovard v. State, and the editor's notes to the case (1 Morris Cr. Cas. 818), and in 2 Bish. Crim. Proc. (3d ed.), §§ 669 to 673, inclusive. Whart. Cr. Ev. (8th ed.), § 335 et seq. Our own State, in the plenitude of her mercy and humanity, following the generous dictates of all human and divine law, declares that no act done in a state of insanity can be punished as an offense' (Penal Code, art. 39), and in the definition of murder provides that it must be the act of one of sound memory and discretion These two principles however, subordinate to another, which is a postulate in estimating all human action from a legal stand-point, and that is that every man is presumed to be sane until the contrary is made to appear. This presumption of sanity is one of the maxims of the law. To such an extent is it indulged, even in cases of murder, that the indictment makes no mention that the accused is of sound mind, even when drawn on a statute which has the words of sound memory and discretion. For though sanity is essential to crime, it is sufficiently charged in the allegation of the criminal act, being the prima facie condition of mankind.' 2 Bish. Cr. Proc. (3d ed.), § 669. And so also the authorities agree, and properly, that in some way the presumption of sanity attends the proven acts of the prisoner, operating with sufficient force to create against him a prima facie case.' Id., § 672. Such a case is more than prima facie; it is a positive case.

"To us it appears needless to dispute as to how or in what manner this presumption is to be rebutted and overcome. It is self-evident that if no issue at all of sanity is raised by the evidence introduced by the State, nor by that produced in behalf of the defendant, then the positive case (prima facie, as it is called by Mr. Bishop) established by the State should and will rightfully carry conviction with it by virtue of the presumption. But if, beyond this presumption of sanity,-if beyond the positive, not alone prima facie, case attending the proven acts constituting the crime, it still devolves upon the State to show affirmatively the existence of sanity beyond a reasonable doubt, then it seems to us that it necessarily follows that this proof must be made in all cases, irrespective of whether the issne grows out of the evidence or not, and consequently that the virtue of the presump tion becomes a delusion, and a prima facie case without this proof an utter impossibility. The folly of such an argument is its own most appropriate answer.

"Suppose, however, that the sanity of the defendant does become a question,- whether from the evidence of the State or that adduced by the defendant,- should the State show the sanity or the defendant the insanity beyond a reasonable doubt? Admit, for the sake of the argument, that the duty devolves upon the State; how is the judge to charge fully the law applicable to the subject ? In terse, plain, and comprehensive terms he could not, perhaps, better express it than in the following language, viz. The law presumes every man to be sane until his sanity is established beyond a reasonable doubt.' This, it may be said, is an absurdity. Grant it, and yet the absurdity will rest where it properly belongs, with those maintaining the proposition that the State shall prove sanity beyond a reasonable doubt.

"We do not deem it necessary or incumbent upon us to unravel or attempt to answer the misty mazes and the metaphysical disquisitions indulged in by the opposing theorists about sanity being】 essential to criminal intent, and criminal intent being essential to punishable crime, nor their equally abstruse and obscure views as to which side has the burden of proof when the sanity of the defendant, from whatever cause, acquires a status in the case. The attempt would be as useless as profitless, in our view of the question. We are free to admit that the defendant is not bound to plead his insanity specially, nor that he may not show it under 'a plea of not guilty.' Still, this does not settle it that the burden of proof is either on the State or the defendant. Until the legislature definitely declares a rule, the question will still, perhaps, remain in doubt as to where the burden of proof rests. We think it is unnecessary that we should determine it. Oftentimes it occurs in law, as in ordinary human transactions, that between opposing theories and opinions there is a middle ground, which, once attained, will lead to safe and satisfactory results. 'In medio tutissimus ibis.' And so, in our opinion, in regard to this question of sanity in criminal cases. Mr. Bishop states this middle ground. He says: The doctrine of principle, sustained by a large part of our courts and rapidly becoming general, is that as the VOL. XXXV-5

Boswell v. State.

pleadings inform us, insanity is not an issue by itself, to be passed on separately from the other issues, but like any other matter in rebuttal, it is involved in the plea of not guilty, upon which the burden of proof is on the prosecuting power; the jury to convict or not. according as, on the whole showing, they are satisfied or not, beyond a reasonable doubt, of the defendant's guilt.' 2 Bish. Cr. Proc., § 673. And Mr. Wharton says: At the same time, if the defense goes to negative malice, and malice is an essential part of the case of the prosecution, then, if on the whole evidence there be a reasonable doubt as to malice, there should be an acquittal. Whart. Cr. Ev., 335.

"It is a noticeable fact that those who insist that the doctrine of reasonable doubt applies to the question of sanity, because insanity is an attack upon the integrity of the crim inal intent which the State is always bound to show affirmatively, are also forced into the position that it is not a distinct substantive issue upon which the defendant has the burden of proof. In other words, they claim that it is a part and parcel of the whole case made by the State; one which she is bound to establish beyond a reasonable doubt, and one which, when she has established it on the whole case beyond a reasonable doubt, is not sufficient, because she has not established it beyond a reasonable doubt when applied to the question of sanity separately and alone. The inconsistency is in giving to a part a prominence sufficient to defeat the whole of which it is but a part, and in insisting that a part shall control the whole, instead of being only considered with and included in it. It will not do to say that the reasonable doubt, independent of the whole case, applies and must be given to each and every element going to make up the corpus of the crime, and failing to do so, that the charge would be insufficient; because such a rule would lead to unnecessary and perhaps interminable confusion, and in a case of circumstantial evidence, for instance, it would be necessary to charge it with reference to each isolated fact in a chain of facts essential to the existence of the main fact. No one, we suppose, will contend that this is requisite. Speaking of the defense of an alibi, in the case of Walker v. State, Chief Justice ROBERTS says: 'It is not a defense at all, in any other sense than as rebutting evidence tending to disprove the fact alleged in the indictment, that. Walker killed Butler, the burden of proving which allegation rests on the State throughout the whole trial.' And again: "The rule of law is that such evidence of an alibi should only be of such weight as to produce upon the minds of the jury a reasonable doubt of the fact affirmed by the State, that Walker was the man who shot Butler.' 42 Tex. 360. In the case at bar, the evidence of insanity was no defense, save as it tended to rebut or destroy the criminal intent with which Webb shot and killed Foster, and it should only be given such weight as would produce upon the minds of the jury a reasonable doubt, not of Webb's sanity, but of the fact affirmed by the State, which was that Webb killed Foster with criminal intent, and under circumstances constituting the crime murder."

HURT, J., dissenting, referred to his opinion in King v. State, 7 Tex. Ct. App. 515. He there said: "When the plea of insanity is interposed, is the burden of proof on the State to show sanity, or is it on the defendant to prove insanity? Brush from this question the dust of ancient days, separate it from its old companions, and its solution is perfectly simple. Before entering upon an analysis of this subject permit us to allude to some very strange and inconsistent expressions used by the learned judges in treating of this question. The following are of the number alluded to: As insanity excuses the commission of crime, on the ground that the actor is not a responsible being,' etc. The onus of proving the defense of insanity, or, in the case of lunacy, of showing that the offense was committed when the prisoner was in a state of lunacy, lies upon the prisoner. It is rather in the nature of a plea to the jurisdiction, or a motion to change the venue. The defendant, through his counsel and friends, comes in and says that he is not amenable to penal jurisdiction. A very respectable volume could be made of such remarks, but those cited will suffice for our purpose.

"Let us take a steady look for a moment at these propositions. For example, take the first. What sane mind can comprehend the possibility of a crime being committed by an insane person? If the prisoner is insane there is no crime. If there be crime there is no insanity. Insanity cannot excuse crime, from the fact that if insane there is no crime to be excused. These observations apply to the second. Now to the third: 'Plea in the nature of a plea to the jurisdiction.' This plea never draws in issue the guilt of the prisoner. Under this plea sanity or insanity would be the issue separate and independent