excuse crime is a question of fact for the jury, applies to tempoarry or periodical insanity. But it is a question for the jury whether the accused in a criminal prosecution labored under the influence of a delusion which rendered his mind insensible to the nature of his act: and whether or not a criminal act was done by a person subject to temporary or recurrent insanity, 'during a tit of madness, is a question for the jury. So, all symptoms of delusion or mental disease are matters of fact for the jury, and so are questions as to the existence and effect on the mind of insanity which subverts the freedom of the will, and destroys the power of the victim to choose between right and wrong, though he may be able to perceive the difference between them. And where insanity is alleged as a defense in homicide case, the question as to whether the accused was guilty of murder in the first or second degree should be submitted to the jury, as well as the question whether or not he was inno

cent.

THE SPREADING REFERENDUM.

Aside from Switzerland, writes Mr. Frederick Austin Ogg, in the Boston Evening Transcript, the United States is the only nation in which the twin principles of initiative and referendum have thus far been carried into practice on any considerable scale.

Beginning with South Dakota, in 1898, nine of our states have thus far established the legislative initiative and referendum in one or another form. In Utah the measure was proposed in 1899, and voted by the people in 1900, though for the lack of the necessary supplementary legislation it has not yet been put in operation. In Oregon the necessary proposals were made in 1899 and 1901, the adoption took place in 1902, and the validity of the system was affirmed in a Supreme Court decision of 1903. In Nevada the principles were ratified at the general election of 1904, though here again, by reason of constitutional technicalities, they are still inoperative. In Missouri similar proposals were made in 1903, resubmitted (after having been voted down) in 1907, and adopted in 1908. In Montana an initiative and referendum amendment was proposed in 1905, adopted in 1906, and given the necessary supplementary legislation in 1907. Delaware, is unique in being the only one of the States in which the people have never had an opportunity to vote immediately upon even a constitution or a constitutional

amendment. In 1905, however, the legislature submitted to the voters the question as to whether there should be established at the next session a system of advisory initiative and advisory referendum. By a vote of seven to one the proposition was approved November, 1906, and in 1907 the referendum was for the first time applied in a vote upon the question of whether or not liquor licenses should be granted within the three counties of the State.

At its session of 1907 the legislature of Maine adopted an elaborate proposal for a constitutional amendment providing for direct popular legislation, and at the state election of September, 1908, the amendment was ratified by a large majority. July 4, 1908, Oklahoma. entered the Union with a Constitution containing unusually elaborate provisions for the initiative and referendum, this being the first instance in which the system has been embodied in an original Constitution. In North Dakota the question is pending. An amendment was proposed in 1907, but has not yet reached the point of submission to the people, although of its eventual adoption there is very little doubt. Of the two States now entering the Union, one-New Mexico-has not incorporated the initiative-referendum in its Constitution, but the other-Arizona-is practically certain to do so. Illinois has a modified form of the initiative, established in 1901 by a law creating the so-called "public opinion" system, under which 25 per cent of the registered voters of any incorporated town, village, city, township, county, or school district may compel the submission of any local question to popular vote, and 10 per cent of the registered voters of the State may by petition secure the submission of a proposition to the electo.rte of the entire Commonwealth. Texas has a device of a somewhat similar sort.

DR. BERTILLON GOT HIM.

"Gee, Dat's a Great Systurm," Says a Forgetful Convict, Giving In.

George Williams, a big raw-boned negro with a strong Southern dialect, was caught on November 5 coming from an apartment at 383 Central Park West with a large bundle of furs and was convicted of burglary. When Judge Rosalsky called the man before him for sentence yesterday he asked if he had ever been in jail.

Williams assured Judge Rosalsky that he had never seen a jail until he entered the Tombs.

"Ever heard of Joliet?" asked Judge Rosalsky.

"Joliet, Joliet?" said the negro with a vague, faraway look. "Where is dat place?"

"Ever been in Chicago?" asked Judge Rosalsky.

"No, sah," answered Williams promptly.

Williams was then asked to look at a photograph of a negro who strongly resembled him. The subject in convict's clothes and the picture was taken at Joliet.

He studied the picture for some time and then said:
"Judge, I'se a better looking coon than that nigger."
He stuck to it that the picture was not his.

"I guess you had better take off some of your clothes," said Judge Rosalsky.

Williams' face fell perceptibly at this order, but he had to obey and began the process. Then the Bertillon system was put to work. The convict in the picture had a mole on the left shoulder. So had Williams. The convict in the Joliet picture had a mark on his left side. So had Williams. When the Bertillon system had been thoroughly applied to the big negro he admitted that he had seen Joliet and that the picture was his.

"Gee, dat's a great systurm," was all he could say.

Judge Rosalsky sent him to State prison for not less than two years and six months nor more than four years and six months.-New York Sun.

GIFTS OF PUBLIC MONEYS.

In the leading case of Loan Association v. Topeka (20 Wall., 655) it was laid down that inherently and independently of express constitutional or statutory restriction, there is a limitation upon the right of taxation that it can only be used in aid of a public object; that it cannot be applied in aid of private enterprises for the benefit of individuals, though, in a remote or collateral way, the local public may be benefited thereby. In the course of the opinion of the court, Mr. Justice Miller observed:

"To lay with one hand the power of the government on the property of the citizen and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation.

It is a decree under legislative forms."

Such axiomatic principle affords general applicability to the decision of the Supreme Court of Georgia in Smith v. Fuller (October, 1910, 69 S. E., 177), holding that where a county treasurer embezzled funds of the county, and a judgment was rendered against him and the sureties on his official bond, and the latter made payments partly extinguishing the indebtedness, a subsequent resolution, passed by the General Assembly, which authorized the county authorities to refund to the sureties any and all sums which they had paid, except such amount as had been expended as costs in the prosecution of the principal, was void. The gist of the reasoning is contained in the following extract from the opinion:

the treasury of the State a portion of its funds to sureties who "If the Legislature would not have the right to give from had paid in such money, certainly they could not make such a graft from the county treasury. The funds of a county generally arise from taxation. If when a defaulting treasurer embezzles such funds, and when his sureties, aganist whom a judgment has been rendered on the bond, pay a portion of the indebtedness against them, the Legislature can require the county to give it back to them, the taxpayers may have again to pay taxes to replace the funds so lost and needed for public purposes, and, in effect, be taxed to make a gift to the sureties."

West Virginia Court of Appeals

Decisions Handed Down at This Term

REPORTED ESPECIALLY FOR THE BAR

Appearing Here for the First Time in Print

GRAY ET AL. v. MANKIN.

Raliegh County. Affirmed.
Robinson, Judge

1. It is only in action wherein no writ of inquiry is requisite that office judgment become final so as to bar counter affidavit and plea at a subsequent term.

2. When the record does not exhibit a counter affidavit, tendered and refused in a case in which counter affidavit is admissible under Code 1906, ch. 125, sec. 46, it must be presumed that the same was so defective as to justify the refusal.

3. Refusal to consider a properly interposed demeurrer cannot be ground for reversal when the record shows that the demurrer was not well taken.

4. A judgment entered as upon an office judgment confirmed, in a case in which a writ of inquiry is proper, which technically irregular as to procedure, is not reversible when the record shows that no jury was demanded and the same judgment must have been entered on inquiry of damages.

WOOLRIDGE, ET ALS. v. WOOLRIDGE, ET ALS.
McDowell County. Decree Affirmed.
Miller, Judge.
SYLLABUS.

1. A deed made on Sunday is not for that reason invalid, Section 17, Chapter 149, Code 1906, providing that "no contract shall be deemed void because it is made on the Sabbath day."

2. The evidence of a Justice of the Peace, who takes and certiñes an acknowledgement to a deed, is incompetent so far as it tends to impeach his official act.

3. A case in which the evidence is held insufficient to invalidate the deed of a deceased grantor for alleged fraud and forgery, and themental incompetency of the grantor to make a deed.