Guetig v. The State.

from the evidence, that there is a reasonable doubt whether the defendant has been subject to attacks of epilepsy, and if this fact (if so found) has been supplemented by the testimony of expert witnesses, establishing to the satisfaction of the jury (evidence raising a reasonable doubt being sufficient), that epilepsy is a disease which tends to produce insanity, this evidence would not be sufficient to raise a reasonable doubt of his sanity at the time of the alleged commission of the homicide. There must be sufficient evidence to raise a reasonable doubt of actual insanity at the time of the alleged commission of the offence."

It is contended, on behalf of the appellant, that this instruction is erroneous, because of its uncertainty and tendency to confuse and mislead the jury, and because it directly instructs the jury as to the weight of evidence, and thus assumes to decide a question of fact which is beyond the province of the court's power or duty.

The State contends that the instruction is not erroneous, but is within the authority of the cases of Sawyer v. The State, 35 Ind. 80, and Bradley v. The State, 31 Ind. 492; and, although the instruction, standing by itself, might be erroneous, yet that all the instructions given by the court, taken together, present the law correctly, and, therefore, the instruction can not be held as sufficient to reverse the judgment.

In the case of Sawyer v. The State, supra, Sawyer was indicted for the murder of his wife. At the trial, the appellant offered to prove "that the deceased, Lizzie Sawyer, had, for a long time previous, been having adulterous intercourse with a man by the name of Bibbs and others, of which adulterous conduct the defendant had, for a long time, been cognizant." The evidence, on objection made by the State, was rejected, and the defendant excepted. In this case the court, after holding the evidence to be incompetent to

Guetig v. The State.

prove a justification, excuse or even palliation of the offence, remarked:

"It is claimed, however, that the evidence should have been permitted to go to the jury, on the ground that it tended to establish the insanity of the accused. * * But the evidence, as offered, was incompetent for that purpose."

There are some important distinctions between this case and the one before us. It is clear that the fact that Sawyer's wife had been committing adultery with Bibbs and other men, and that Sawyer knew the fact, would not tend to produce the disease of insanity in Sawyer. It might very much enrage or distract him temporarily, but would not tend to produce insanity as a disease. This is a very different statement from the facts supposed in the instruction we are considering, namely, that Guetig had attacks of epilepsy, and that epilepsy tended to prove insanity. Besides, in the Sawyer case, the question was one upon the admissibility of evidence, which is solely for the court to decide. The question in the present case is one upon the insufficiency of the evidence to prove a given fact, which is solely for the jury to decide.

The case of Bradley v. The State, supra,is cited and quoted from with approval, in support of Sawyer v. The State, supra, and is not in conflict with it in any respect. Neither of these cases supports the views of the State, as urged in the case under consideration.

The instruction complained of, compactly stated, plainly means, that, if the appellant has been subject to attacks of epilepsy, and epilepsy is a disease which tends to produce insanity, these facts are not sufficient to raise a reasonable doubt of his sanity, at the time of the alleged commission of the homicide. It is not clear in the statement of the time of the attacks of the epilepsy, in relation to the time of the commission of the offence. For aught that the

Guetig v. The State.

instruction says, in words, it might be understood to mean, that, if the appellant had attacks of epilepsy on the day the deed was done, (a fact, indeed, which the evidence tends to prove,) or an hour before, or even at the time, it still would not be sufficient to raise a reasonable doubt of his sanity at the time the homicide was committed. Such a view would be plainly erroneous. The instruction is also erroneous, because it directly states that certain evidence, which is legitimately before the jury, is not sufficient to prove a certain fact, or to raise a reasonable doubt of a certain fact.

What evidence proves, or tends to prove, after it has gone to the jury, is a question solely for the jury to decide; and it is error for the court to interfere with their decision upon the weight of evidence, by an instruction.

Nor do we concur with the views of the State, that the instruction, if objectionable, can be corrected by other instructions which are not objectionable.

We do not find any other instruction given in this case, upon the question of epilepsy, as tending to produce the disease of insanity; and we have frequently decided that an erroneous instruction can not be corrected by an instruction which is not erroneous, unless the erroneous instruction be withdrawn.

The following authorities support our views:

Longnecker v. The State, 22 Ind. 247; Larue v. Russell, 26 Ind. 386; Cain v. Hunt, 41 Ind. 466; Kintner v. The State, 45 Ind. 175; Barker v. The State, 48 Ind. 163; Doring. v. The State, 49 Ind. 56; The Toledo, Wabash and Western R. W. Co. v. Shuckman, 50 Ind. 42; Summers v. The State, 51 Ind. 201; Greer v. The State, 3 Ind. 420; Matthews v. Story, 54 Ind. 417; Pratt v. The State, 56 Ind. 179; McCarthy v. The State, 56 Ind. 203; Clifford v. The State, 56 Ind. 245; Veatch v. The State, 56 Ind. 584; Broker v. Scobey, 56 Ind. 588; Killian v. Eigenmann, 57 Ind. 480; Richie v The State,

Caldwell . The State.

58 Ind. 355; Snyder v. The State, 59 Ind. 105; sec. 19, art. 1, constitution, 1 R. S. 1876, p. 23.

Other questions are presented in the case, but, as they will be opened by a new trial, and are not likely to arise again, we do not examine them.

The judgment is reversed, and the cause is remanded, with instructions to sustain the motion for a new trial, and for further proceedings.

CALDWELL V. THE STATE.

CRIMINAL LAW.-Berting on Election.-Parol Evidence of Terms of a Writing.-Parol evidence of the contents of a memorandum of the terms of a bet upon the result of an election is inadmissible, without first accounting for the absence of such memorandum.

From the Fayette Circuit Court.

W. C. Forrey, for appellant.

T. W. Woollen, Attorney General, for the State.

NIBLACK, J.-The indictment on which this prosecution was based charged, "that, on the 15th day of October, A. D. 1876, and in the county of Fayette and State of Indiana, Samuel Caldwell then and there unlawfully won and took from one Marshal Frazee twenty-five dollars, by then and there unlawfully betting and wagering with him, said Marshal Frazee, for said twenty-five dollars, upon the result of a certain election had and held on the 10th day of October, A. D. 1876, in the State of Indiana, for the election of a Governor of said State."

The defendant moved the court to quash the indictment, but his motion was overruled.

The court to which the cause was submitted for trial

Caldwell v. The State.

found the defendant guilty as charged, and, overruling a motion for a new trial, rendered a judgment of conviction upon the finding.

On the trial, one Frank Williams was produced on behalf of the State, who testified, that, sometime in the Fall, 1876, but before the state election of that year, Caldwell and Frazee came to him with an envelope, but he could not tell just what was said by them ;-he was, however, to hand over the envelope to one of the parties, on a contingency; and that, after the election, he had given the envelope to Caldwell. The prosecuting attorney asked the witness to "state what writing or figures was on the envelope." The defendant objected to the witness answering that question, upon the ground that his answer would not afford the best evidence of the contents of such writing or figures, but the court overruled the objection, and the witness answered, in substance, as follows:

6

"The words on the envelope were, If Blue Jeans Williams is elected Governor, or Governor of Indiana,' I can not say positively which, to give the envelope to Mr. Cald well.' On the other side, If Harrison is elected, to hand it to Frazee.' These were all the marks that were on the envelope."

In the case of Frazee v. The State, 58 Ind. 8, which was, in its essential features, the counterpart of the one in hearing, it was held that evidence, in substance the same as above set out, was erroneously admitted, upon the ground that the non-production of the envelope was not satisfactorily accounted for, and that no proper foundation had been laid for secondary evidence of the contents of the writing upon it.

Following that case, as we feel it our duty to do, we have to hold that the evidence admitted in this case as above, over the objection of the defendant, was admitted erroneously.