4. It is not necessary that the defense be established beyond are sonable doubt. It is sufficient if the jury is reasonably satisfied by the weight of preponderance of testimony that the accused was insane at the time of the commission of the act, 9ut 29in ved the Tinta bise tabu") Shut be to MEEKER, J. eteribib sier jeg to tal ada of as a vieɔup sdi vsizemos bin ***CHARGE TO JURY. 79 of 9nging tid? To bre

One of the defenses set up by the defendant under the plea of not guilty, is that of insanity..)

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That is, that the defendant was insane at the time the crime was committed as charged in the indictment. That he was irresponsible to the law for said crime, by reason of insanity.

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This defense is recognized by the law, and when properly made out, is a full and complete defense to all criminal charges, tostar

Where, in a prosecution for homicide, the defense is insanity, it is not sufficient if the proof barely shows that such a state of mind was possible; nor is it sufficient if it merely shows to have been probable. The proof must be such as to overrule the legal presumption of sanity; it must satisfy you that he was not sane. It would be unsafe to let loose upon society great offenders upon mere theory, hypothesis or conjecture. A rule that would produce such a result would endanger the community, by creating a means of escape from criminal justice, which the artful and experienced would not fail to embrace. The defense of insanity is not uncommon. It is a defense often attempted, especially in cases where aggravated crimes have been committed, under circumstances which afford full proof of the overt acts, and render hopeless all other means of evading punishment. While, then, the plea of insanity is to be regarded as not less full and complete than it is a humane defense, when satisfactorily established, and while we should guard against inflicting the penalty of crime upon the unfortunate maniac, or insane person, we should be equally careful that we do not suffer an ingenious counterfeit of the malady to furnish protection to guilt.

Was, then, Elmer Sharkey insane and irresponsible to the law at the time he committed the act the state complains he did commit?

1

If you resolve this important question in the affirmative, you must acquit; but here your most earnest and careful attention is required. Look at all the evi dence and circumstances touching this issue, You will examine all the detailed evidence touching upon the subject, and permit not your minds to be carried away by loose inferences and careless deduction; but you must examine this is sue, this matter, carefully and candidly. You must consider it important both for the protection of the community, and the safety of the insane.

The plea of insanity presents an issue, the affirmative of which is upon the defendant. And here let me lay down to you the principles of the law. As the law presumes every person who has reached the age of discretion to be of sufficient capacity to be responsible for crime, the burden of establishing the insanity of the accused affirmatively to the satisfaction of the jury on the trial in a criminal case, rests upon the defendant.

It is not necessary, however, that this defense is established beyond a reasonable doubt. It is sufficient if the jury is reasonably satisfied by the weight of preponderance of the evidence that the accused was insane at the time of the commission of the act. Apply these principles to this case. Elmer Sharkey, by the law at the time of the crime charged, is presumed to have been sane, and to be fully responsible for the consequences of his own acts. Presumed to be of sufficient capacity to form the criminal purpose, and to deliberate and premediate upon the acts which malice, anger, hatred and revenge, or other evil disposition might impel him to perpetrate.

To defeat this legal presumption which meets the defense of insanity at the threshhold, the mental alienation relied upon by the accused must be affirmatively established by fair preponderance of evidence as aforesaid.

If, however, from a full and careful consideration of all the testimony of the case in its weight and character, the conclusion is fixed upon your mind that the defendant was insane at the time of the commission of that act, then it is your duty to find in favor of insanity.

But what is insanity? What is meant in law by insanity? What is meant in law by insanity that will excuse a crime?

Insanity, indeed, exists in so many shapes and forms, and manifests itself in so many different ways that it is almost impossible for science to comprehend it, or give it an intelligible definition. The learned and the unlearned differ about it

The classes, grades and manifestations are not well understood by any of tuus, learned or otherwise. Then how shall we determine the responsibility of man to the law? The policy of the law ought to fix, as far as it can, and does fix it.

Insanity in its general, legal sense is the inability or incapacity to distinguish between right and wrong, as applied to particular charges of crime. It is the inbility or incapacity to distinguish between right and wrong, or the want: of knowledge of right and wrong as to particular acts committed. If in the commission of a criminal act, the capacity of discriminating between right and wrong is overcome or destroyed, or the knowledge of such discrimination is buried in oblivion, or if his mind is diseased to such an extent that he is unables to restrain his acts, unable to choose between the right and wrong, no longer a free agent, to act or not act at will. Such an act would make a perpetrator irresponsible; and in the language of some judges, in well defined cases, that in order to constitute a crime, a man must have intelligence and capacity enough to have a criminal infent and purpose. And if his reason and mental powers are either so deficient that he has no will, no conscience or controlling mental power; or if through the overwhelming violence of mental disease, or from any other cause, his intellectual powers are for the time abdicated, he is not a responsible moral agent, and be is not punished for criminal acts. But a man is not to be excused from responsibility if he has capacity and reason sufficient to enable him to distinguish between right and wrong as to the particular act he is then doing, in knowledge and conscience that the act he is then doing is wrong and criminal, and may subject him to punishment, he having the power to desist.

In order to be responsible he must have the power of self-control, free agency, the power and freedom of will to avoid a wrong, no less than the power to distinguish between the wrong and the right. He must have sufficient power of memory to recollect the relation in which he stands to others, and in which others stand to him; that the act he is doing is contrary to the plain dictates of justice and right; his duties to others, and the violations of the dictates of duty. On the contrary, although he may be laboring under partial insanity, if he still understands the nature and character of his acts, and its consequences, if he has a knowledge that it is wrong, and criminal, and mental power sufficient to apply that knowledge to his own case, and to know that if he does the act he will do wrong, and be liable to punishment, and the power to choose and restrain his acts at will, such partial insanity is not sufficient to exempt him from responsibility for criminal acts..

Counsel for defense in this case have urged that we should disregard, or modify a rule adopted by the courts of this state in determining criminal responsibility, and the burden of proof in establishing insanity, and adopt the views to a modified extent of other states, which it is claimed are more in accordance with justice, and the enlightened humanity of the age. Whatever may be our private opinion on this subject we are not at liberty, as a court, to disregard the settled law of the state.

It is the court's duty to ascertain the law and give it to you. It is your duty to receive it, and apply it to the facts of the case. If there is any need of improvement of the law in this respect it is the duty of the legislature to furnish the remedy, or the Supreme Court to modify its rulings on this subject. Notwithstanding the able argument by counsel in cases in other states referred to, we are not convinced that a change should be made.

And here again, let me remind you, gentlemen, that you should before com ing to a conclusion, carefully recall by aid of your memories all the evidence and circumstances bearing upon this question of insanity, since and before this act is charged to have been committed, to-wit: January 12, 1889, but all must relate and refer to the state of the defendant's mind at the time he is charged with the commission of the crime. For all the evidence given of defendant's condition, as he was before and after the homicide, as well as the condition of his relatives' minds, were offered and received by you for the purpose of assisting you in determining the condition of the defendant's mind, whether sane or insane, at the date said Caroline Sharkey was killed.

And, gentlemen of the jury, if you find by a fair preponderance of the evi dence that when the defendant struck and killed the deceased, Caroline Sharkey, he was laboring under some mental infirmity, rendering him incapable of deter. mining that it would be wrong to take the life of the deceased. That by reason of such mental disorder he was unable to know that his duty to his fellowmen resired that he should abstain from so doing: that he would be punished by the law if he killed her under the circumstances shown in this case, and slew the deceased from the uncontrollable impulse of his mental disorder, without power or will or reason to see it was wrong and abstain from doing it, then you should ac

quit him; but, on the contrary, if you find that the defendant did know that it was wrong and punishable by the law; if he could have restrained himself; if it was not the impulse of his mental disorder; if it was the impulse of the passion or anger or feelings of malice excited by the wrongs, if any, he may have suffered by the conduct of the deceased, then he was legally responsible; and if he killed Caroline Sharkey, he is guilty of one of the degrees of murder, or manslaughter, or assault, or assault and battery, embraced in said indictment, as defined and explained in the former part of this charge, as the evidence may warrant, under the law as given by the court.

I am asked by counsel to call the jury's attention to the testimony and opinions of witnesses, both as non-experts and experts on the question of insanity. The credibility to be given to the opinions of witnesses on the question as to the defendant's mental faculties, whether sane or insane, largely depends upon the facts the opinion is based upon. Where the witness has had the opportunity to observe and converse with the person whose mind is in question, and has conversed with and watched the facts and conduct of such person, and testifies to, and gives to the jury, such conversation, acts and conduct, he may give his opinion as to the condition of such person's mind. And such opinions are to be considered by the jury in connection with the facts, conduct and appearance of such person.

In determining whether the defendant's mind was sane or insane, at the time of the homicide, and such opinions are strong or weak, as it may or may not be, backed up by the facts and circumstances, etc., by such witnesses given to the jury.

The opinions of medical experts are to be considered by you in connection with all the other evidence in the case, but you are not bound to act upon them to the entire exclusion of other testimony. Taking into consideration these opinions, and giving them just weight, you are to determine for yourselves, from the whole evidence, whether the accused was, or was not, of sound mind at the date of the homicide.

You are not to take it for granted that the statements contained in the hypothetical questions, which have been propounded to the witnesses, are true. Upon the contrary, you must carefully scrutinize the evidence, and from that determine what (if any) of the averments are true, and what (if any) of the averments are

not true.

Should you find from the evidences that some of the material statements therein contained are not correct, and that they are of such character as to entirely destroy the reliability of opinions, based upon the hypothesis stated, you may attach no weight whatever to the opinions based thereon. You are to determine from all the evidence what the real facts are, and whether they are correctly or not stated in the nypothetical question, or questions.

I need hardly remind you that an opinion based upon a hypothesis incorrectly assumed or incorrect in its material facts and to such an extent as to impair the nature of the opinion, is of little or no weight.

We give also in this connection the following comments upon the decision of the circuit court.

The opinion of the circuit court in the case seems to be such a radical departure from the settled law of Ohio, that the writer asks space in the Bulletin to briefly review it.

Ás the evidence in the case is not before us, it is difficult to say whether the hypothetical question of the state was a fortunate or an unfortunate one for the prosecution.

It seems very singular that counsel, having any regard for the interest of the state, and their own success with the jury, should present a hypothecated case, to an expert witness, that was wholly imaginary, and which, there was no testimony in the case even tending to support, and if counsel did adopt such a hazardous course, it would seem that the danger of prejudicing the case in the minds of the jury would be rather in favor of the defendant than against him. A jury is always ready to go to any length to rebuke unfairness on the part of counsel, or a want of candor in dealing with them about the testimony in a case, and if the hypothetical question was so clearly without support in the testimony as is indicated by the opinion of the circuit court, it certainly could not have deceived or misled the jury, to the prejudice of the defendant, and therefore furnished no valid reason for reversing the judgments. Especially is this true when the trial court left the question of how far the hypothetical case was supported by the evidence in the

case, to the jury, under instructions which practically required them to disregard the opinion of the expert, in so far as it was not based upon facts supported by the evidence in the case. In the case of Williams v. Todd's, Ex'r, 28 Ohio St., 547, cited by the circuit court, the Supreme Court does not decide the case upon this point, but expressly say, "We would therefore hesitate to reverse the judgment of the courts below on this ground alone."

Following this point the court recites, at some length, the evidence in the case, and then say: "The case does not now seem to call for an expression of opinion as to the weight of the evidence. Its substance is stated to show the impropriety of an important portion of the charge. The defense of insanity was founded upon the heredity of the accused, and his appearance, and conduct throughout his life. There was no evidence in the case from which a simulation of insanity could be inferred. But the court instructed the jury, in part, as follows;" (here follows an exact quotation from the celebrated charge of Judge Birchard in the Clark case, 12 Ohio, 495); but before examining the position of the circuit court upon the charge in the Clark case, let us see, in the case under consideration, if there was no evidence in the case from which a simulation of insanity could be inferred."

Simulation is not confined to any particular time, it may occur before, at the time of, or after the commission of the homicide. True, the question for the jury to determine is, was the accused sane or insane at the time he committed the homicide? Or, to speak with greater precision, was he responsible or irresponsible? But in determining this question, the jury are not limited to the precise time of the homicide, but may look to the conduct of the accused both before and after, as reflecting more or less upon the state of his mind, at the time of the homicide, and consequently every act or word of the accused either before, at the time of, or subsequent to the homicide, indicating a sane mind, would be evidence tending to prove that the insanity pleaded at the trial as an excuse for the crime, was simulated.

Tried by this test, we find even by the meager statement of the evidence given in the opinion of the circuit court, the following, at least tending to show simulation, because its direct tendency is to show a sane mind, which is inconsist ent with anything but simulation. "Opposed to this was the testimony of many witnesses who knew the accused well, and had seen nothing in his appearance or conduct to lead them to doubt his sanity" * ** "testimony showing that he made some progress in school, and that he transacted unimportant business ordinarily well; the opinions of some medical witnesses, and the fact-which the evidence seems to establish-that after the homicide he cunningly broke doors and windows in the house to avert suspicion from himself." In the face of these statements, how can the court say, "There was no evidence in the case from which a simulation of insanity could be inferred?”

In commenting on the charge of Judge Birchard in the Clark case, the circuit court say: "It is to be inferred that some evidence in the case suggested the simulation of insanity." In a case presenting such evidence, it may have been proper to comment upon the circumstances under which the defense of insanity is "often attempted," and to caution the jury against “an ingenious counterfeit oi the malady." "But such observations had no proper place in the case before us, where a counterfeit of the malady was not suggested by any evidence."

We would suggest, in this connection, Does not every case of genuine insanity suggest a counterfeit of the malady? And is it not by comparison of the known symptoms and characteristics of each with the other, and by reason, reflection and judgment thereon, that a jury, under proper instruction, would be able to distinguish the genuine from the counterfeit? If so, what objection can be urged to a charge which simply emphasises to the jury the vast importance of exercising their judgment in the most careful manner. To execute an insane man, and to turn loose on society a willful murderer, all will agree, are both great wrongs; but when the jury are alike cautioned against each of these extremes, the accused certainly has no ground to complain of the charge, and under the present system of trying the question of insanity, where the rich culprit can command the services of paid advocates, who come before the jury under the guise of expert witnesses, that judge would be recreant to his duty who should fail to give the jury every caution that would enable them to properly weigh the testimony and arrive at a just conclusior-a conclusion that should at once be just to the accused and to society as well.

Further along the circuit court say. "By it (the charge) the jury were informed that the defense here interposed was not sustained. if the evidence merely shows that the accused was probably insane when the homicide was committed.

It is submitted that this is not reconcilable with either reason, or the best considered authority in the state. To the commission of the crime charged, mental capacity for deliberation and premeditation was essential. If the evidence showed that this essential capacity was probably wanting, etc. * ** there was reasonable and substantial doubt of his guilt."

Without quoting further, at length the circuit court further criticise the word "satisfy" as used in the charge of the court below.

The position of the circuit court, carried to its legitimate conclusion is, that whenever the defendant raises a reasonable doubt, in the minds of the jury, of his sanity, he thereby raises a reasonable doubt of guilt and is entitled to an acquittal, This doctrine is in direct conflict with the unbroken line of our Supreme Court from the Clark case in 1843 to the present time.

The Clark case was approved and followed in Loeffner v. The State, 10 Ohio St., 599. In this case the court held that the burden of establishing the insanity of the accused affirmatively to the "satisfaction" of the jury, rests upon the defense.

Both the Clark and Loeffner cases were cited and approved in Silvers v. The State, 22 O. S., 101.

The question again came before the Supreme Court in the case of Bond v. The State, 23 O. S., 349.

Welch, J., in delivering the opinion in this case, says, "The counsel for the defendant requested the court to instruct the jury that if they entertained a reasonable doubt as to the sanity of the defendant they should acquit. This instruction the court refused to give, and on the contrary, instructed the jury that in order to an acquittal on that ground, it was incumbent on the defendant to prove the fact of insanity by a preponderance of evidence. In this we think the court was right and the counsel wrong.".

Again, in Bergen v. The State, 31 Ohio St., 111. Gilmore, J., in delivering the opinion of the court says, "The counsel for the motion admits that this is held to be the law in Ohio, but ably argues that it is not good law. If the question was an open one, a majority of the court would be in favor of the rule as it stands, and in as much as the rule has been so long established, and so repeatedly recognized in this state, as shown by the cases cited, the court is unanimous in the opinion that it should not be changed by judicial action."

What the circuit court meant by saying that the charge in the Clark case "is not reconcilable with the best considered authority in the state," we do not know, as they cite no authority in the state in conflict with or even criticising Judge Birchard's charge, while, as we have seen, that charge has been accepted by our Supreme Court as the settled law of Ohio, in every case in which it has been cited.

In view of these cases we submit that the decision under review is not only not good law, but is subversive of a principle of law in Ohio, that has been so long and so well established, as to become elementary.

248

RAILWAY STOCK-PLEDGE.

[Superior Court of Cincinnati, General Term, 1889.]

CINCINNATI, NEW ORLEANS & TEXAS PACIFIC Co. V. CITIZENS' NATIONAL BANK ET AL.

1. Persons receiving certificates of stock in pledge from the secretary of a railroad company, whose duty it is to attend to the issue and transfer of certificates on behalf of the company, are bound to inquire as to the authority of that officer to dispose of the stock for his own use, and in the absence of such inquiry the company is not estopped to dispute the validity of the certificates so received, although they have the genuine signatures of the president and secretary of the company, and the corporate seal.

For opinion on issues in this case see post, 24 B., 198. See also 9 Dec Re..