lateral security, and subsequently the creditor gave time to the debtor, and took his note with new security, the collateral promissor, who was but a surety, was held to be discharged. But in the case of Butts v. Dean, (2 Met. 76,) a debt was due on account; the creditor took security by the bond of a third person, conditioned, if the debt was paid within eighteen months, the bond should be void; afterwards the debtor gave to the creditor his own negotiable note for the amount of the account, bearing the same date with the bond, and the creditor gave him a receipt. It was held that it was not to be presumed that the creditor intended to relinquish his security; and therefore the note was not to be deemed payment of the original debt. The remarks of Shaw, C. J., in delivering the opinion of the Court in the case of Melledge v. The Boston Iron Company, (5 Cush. 169, 170,) are, so far as they go, in accordance with the views I have here taken.

It is true that in the case of the Barque Chusan, (2 Story, 467,) Judge Story, treating of a case of Admiralty lien, speaks of the Massachusetts doctrine as differing from that of New York, in a manner which would indicate that he supposed the lien would be lost by taking a note in Massachusetts, when it would not be lost by the same act in New York. But the contract there was made in New York, and he had no occasion to examine the jurisprudence of Massachusetts. I think the Massachusetts doctrine does not go further than to consider the taking of a negotiable note a substitute for the pre-existing debt, where that would not impair any security or other right of the creditor. And to this extent it is unobjectionable, as it causes no inconvenience to the creditor, and may better protect the debtor. If it materially changed the right of the creditor, I think it would be an unfortunate departure from the general rule of law. I am of opinion that the lien in this case was not displaced or impaired by the taking of the notes, and that if the conditions of the statute were complied with, it could, after the expiration of the term of credit, be enforced in the Admiralty by process in rem.

J. A. Andrew, for the plaintiff.

P. W. Chandler, for the defendant.

NOTE. In the earliest case decided before the Revolution, and referred to by C. J. Parsons, in 5 Massachusetts, the notes were not produced. In 6 Mass. 146, Parsons, C. J, speaking of the Massachusetts doctrine, says, "there is no inconvenience to the creditor." It does not extend to cases in which the notes taken are not negotiable. 6 Mass. 358.

Supreme Judicial Court of Massachusetts.

December, 1856.

Suffolk, ss.

COMMONWEALTH v. WINSLOW EDDY.

the

If the witnesses in a criminal case are to be excluded from the room, rule must be applied to all the witnesses on both sides, except the medical witnesses.

It is not competent to ask a government witness, not an expert, on crossexamination, whether he has not said that the prisoner was crazy. On the trial of a husband for the murder of his wife, the defence may show, as bearing upon the question of insanity, strange conduct on the part of the prisoner, occurring at times when bad conduct on the part of the deceased had been brought to his knowledge.

If evidence is introduced for the defence to show that the prisoner was insane, the government may, in reply, after the prisoner's evidence is put in, call medical experts to this point.

The burden of proof is upon the government throughout in a capital case; but upon the question of sanity or insanity, this burden is met and sustained by the legal presumption of sanity; and if evidence is introduced on this point, the government is not bound to satisfy the jury beyond a reasonable doubt, of the prisoner's sanity, but the jury must decide this question by the preponderance of evidence on the whole case. Chitty's medical jurisprudence cannot be read to the jury by counsel as part of the argument.

THE defendant was indicted for the murder of his wife, Sarah Jane Eddy, on the 21st of June 1856. Trial before Justices METCALF, BIGELOW, and MERRICK, on the 29th of December, 1856.

John H. Clifford, Attorney General, and A. O. Brewster, Assistant Attorney for Suffolk, for the Commonwealth.

George S. Hale, and Thornton K. Lothrop, for the prisoner.

When the witnesses for the prosecution were called, Lothrop moved to exclude from the room those who were to testify in regard to the killing, until they should be respectively called to the stand. The Attorney General assented to the motion, and suggested the practice to be to impound all the witnesses, except the medical ones, on both sides. Per Curiam. All the witnesses on both sides, except the medical witnesses, must be excluded.

One of the grounds of the defence was, that at the time of committing the act the prisoner was insane. On the cross-examination of James Feely, a witness for the government, Hale proposed to ask him if he had not said the defendant was 66 a raving maniac, and as crazy as a bear." Per Curiam. The question cannot be put.

Hale offered to show strange conduct of the prisoner occurring at times when the deceased conducted improperly, and the prisoner knew it, and claimed the right to introduce evidence of bad conduct on her part and strangeness on his, occurring together, as tending to show that the act was committed by him in a fit of insanity, brought on by her misconduct, and by its coming to his knowledge. The Attorney General objected.

Per Curiam. The evidence is admissible.

At the close of the defendant's evidence, the Commonwealth called Dr. Stedman, a medical witness, who had been present during the whole trial, and proposed to examine him as an expert, as to his opinion of the prisoner's sanity, founded upon the evidence in the case.

Hale objected, that as the sanity of the prisoner must be necessarily part of the primâ facie case of the government, evidence on this point could not be introduced by way of rebuttal after the defendant's testimony. The government might either rely upon the general presumption of sanity, or introduce evidence to prove the sanity of the prisoner. But if they chose to rely upon the presumption, they could not introduce further evidence after the prisoner's case was closed, and cited Rex v. Stimpson, 2 C. & P. 415.

METCALF, J. We think the testimony should be admitted; and that this is the first time at which it would be proper for the Commonwealth to offer it. There is no disposition on the part of the Court to deny the general doctrine contended for, that the burden is on the government throughout in a criminal case, to prove everything necessary to constitute the offence charged; but there is a legal presumption, which the law raises in all cases, that a person is of sane mind. That presumption is evidence of the fact, and it stands until rebutted. And when testimony is introduced to rebut it, and the presumption is rebutted and overcome, the jury, upon the whole evidence in the case, must be satisfied by a preponderance of evidence, of the prisoner's insanity.

In the closing arguments, the question of the burden of proof was discussed at considerable length. We can only present a brief and imperfect sketch of the arguments, as well as of the charge of the Court.

Hale, for the prisoner, argued upon this point as follows: The burden of proof is on the government to show, beyond a reasonable doubt, that the prisoner was of "sound

memory and discretion" at the time of the alleged homicide. The presumption of sanity only goes to the extent of authorizing the jury to find its existence in the absence of opposing evidence, and to excuse the government from introducing any testimony upon this point as part of their prima facie case.

The Commonwealth must prove the crime alleged, beyond a reasonable doubt. The crime of murder is defined to be "where a person of sound memory and discretion, unlawfully killeth any reasonable creature in being and under the King's peace, with malice aforethought, express or implied." 3 Inst. 47; 4 Bl. Com. 195. Murder is not proved so long as a reasonable doubt remains of the existence of any one of these elements. Conclusive presumptions should not be favored in criminal cases, for they do not aid in the discovery of the truth. Wills on Circum. Ev. 30–33; Burrill on Circum. Ev. 60. This presumption merely means that most men are sane, it is evidence or argument to be met like other evidence or argument; it does not make or change a rule of law. Take the case of an alibi, or where it is certain that the crime was committed by one of two persons, if there be a reasonable doubt the jury must acquit. Campbell v. The People, 16 Ill. 17.

This presumption of sanity does not hold in all cases. A person deaf and dumb from birth is presumed incapable of felony. 1 Greenl. Ev. $ 366. In a criminal case, this presumption meets that of innocence, and why must the latter yield here, when in other cases it is to prevail? Rex v. Twyning, 2 B. & Ald. 385; Greenborough v. Underhill, 12 Vt. 604; 1 Greenl. Ev. § 35. What is the actual force of the presumption? In Massachusetts it is said that one person in three hundred is either insane or idiotic, but not one in five thousand, probably, commits homicide, and the proportion of murderers is still less. The chance, then, is sixteen to one that a man is insane rather than murderer.

The rule we oppose is especially hard, for the insane are less capable of making a defence than the sane, nay, in most cases can render no assistance to prove their incapacity. Nor is it a matter peculiarly within the defendant's knowledge, a circumstance which is sometimes made a ground for throwing the burden on him. We contend that the essence of the indictment, and of the issue, and for which the government are allowed to open and close the case, includes the capacity of the prisoner to commit the crime charged against him. See Crowninshield v. Crown

inshield, 2 Gray, 524, where Thomas, J., in a very able opinion, shows that the burden of proof is in a party, offer ing a will for probate, to prove the sanity of the testator. It may be said that the party holding the affirmative claims against the legal right of the heir. But so here, the gov ernment allege the existence of guilt against the legal presumption, more sacred and valuable than that of the heir, of the defendant's innocence. So in Commonwealth v. Bradford, 9 Met. 268, the defendant was indicted for illegal voting in Boston, and it was proved that up to about seven months before the election he had his domicil out of Boston, the ruling below was that the defendant must prove that he had changed his domicil six months before the election, (the law requiring six months residence,) doubtless on the ground of the presumption that a man retains a domicil once acquired. But the Supreme Court decided that the burden was on the government to show that the defendant had not resided in Boston for six months before the election. See also Stebbins v. Leowolf, 3 Cush. 137; Regina v. Kirkham, S C. & P. 117; The People v. Tripler, 1 Wheeler, C. C. 48. And especially Bennett & Heard's Lead. Crim. Cases, p. 87, note to Com'th. v. Rogers, and p. 347, note to Com'th. v. McKie, in which this subject is treated with great ability and learning.

The Attorney General (for the government).-The general rule of law is, that the burden of proof never shifts. But there is a legal presumption that all men are sane. This presumption lies at the very foundation of all social organization and all government. It underlies all the contracts of men, all business and traffic, all the daily intercourse and arrangements of human life. It is the strongest presumption we have. That all men are sane, know what they are doing, and intend the consequences of their acts. And this presumption, so powerful and all pervading, meets and sustains the burden of proof, and stands until it is rebutted and overthrown.

It is essential to the safety and maintenance of the government that this should be so; society could not exist for a day, and government would come to an end, were it otherwise; and therefore so strong is the presumption, so essential to the safety and well-being of the community is it, that it should be considered sufficient evidence of sanity until rebutted by stronger evidence; that the law will hold is sufficient, even though it be an exception to the ordinary