State v. Jones , 50 N.H. 369 ( 1870 )

Ladd, J.

The court found, as matter of fact, that Goodrich would weighrthe evidence under a conscientious bias against capital punishment, and that for this reason he would not be an impartial or indifferent juror. It is well understood that this court does not ordinarily revise a finding of fact by the eourt at the trial term ; and we can see no reason for doing so in the present case. This was a matter within the discretion of the court below; Watson v. Walker, 33 N. H. 131; State v. Pike, 49 N. H. 399;—and we think the evidence reported was amply sufficient to warrant the finding.

This court has recently considered with much care, in the case of State v. Pike, above referred to, the sufficiency of the form of indictment objected to here. Pike was convicted of murder in the first degree on an indictment setting out the offence in the same form, and it was held sufficient. We have reexamined the opinion in that case, and considered again the reasons upon which it is placed, and are again brought to the same result. A majority of the court think the indictment is sufficient to sustain a verdict of murder in the first degree.

. The question calling for what Mrs. Jones said to the witness Page, not in defendant’s presence, was inadmissible. The case finds that no part of any conversation, to which the question proposed had relation, had been put in, and the declarations of Mrs. J ones, under the circumstances shown, would be hearsay.

The statement of Drew to Bennett, in regard to the defendant’s mental condition, was properly excluded for the same reason..

Remarks made to Bennett by other persons, not in defendant’s presence, calling his attention-to defendant’s mental condition, were rightly excluded because they were hearsay.

Whether Drew did or did not say anything to Bennett on account of what took place on the boat, would seem to be wholly immaterial. Drew was a witness, and could testify to all he knew, that was admissible, upon the question of defendant’s sanity or insanity, whether it took place on the boat or elsewhere; and whether he communicated to Bennett the same facts, or the conclusion which he drew from them, could have no bearing one way or the other, as we can see.

There was evidence tending to show that the defendant believed his wife guilty of adultery with one French, and that he killed her for that reason.. His counsel claimed that this belief was an insane delusion. There was also evidence tending to show that, during the trial, the defendant had said his belief in his wife’s infidelity was founded, not only on public rumor, but also on his own observation. The claim that this belief was an insane delusion was a direct and distinct claim that.no such public rumor existed; for, whatever difference there may be on other points, all ¿mist agree that a belief in what had actual existence would not be an insane delusion. Whether there was, in fact, such a public rumor, was thus put directly in issue; and to.meet this issue, evidence that such a public rumor did exist in Newmarket, where defendant and his wife lived, was relevant, and- properly admitted.

The history of the defendant, and evidence of his conduct at various times during a period of many years before the act for which he was tried, tending to show his temper, disposition, and character, were admitted against his objection. It was for the jury to say whether the act was the product of insanity, or of a naturally malignant and vicious heart. The condition of the man’s mind, whether healthy or diseased, was the very matter in issue. This must be determined, in some way or other, from external manifestations, as exhibited in his conduct. To know whether an act is the product of a diseased mind, it is important to ascertain, if possible, how the same mind acts in a state of health. The condition of sanity or insanity shown to exist at one time, is presumed to continue. • For these reasons, and others which we have not thought it necessary to enlarge upon, it would seem that evidence tending to show defendant’s mental and moral character and condition for a period of many years before the act, was properly received.

The remaining and most important questions in the case arise upon the instructions given by the court to the jury, and the refusal to give instructions requested by defendant’s counsel.

When, as in this case, a person charged with crime admits the act, but sets up the defence of insanity, the real ultimate question to be determined seems to be, whether, at the time of the act, he had the mental capacity to entertain a criminal intent — whether, in point of fact, he did entertain such intent.

"In solving that problem, as in all other cases, it is for the court to find the law, and for the jury to find the fact. The main question for our consideration here is, what part of this difficult inquiry is law, and what part fact.

It will be readily agreed, as said by Shaw, O. J., in Com. v. Rogers, 7 Met. 500, that if the reason and mental powers of the accused are either so deficient that he has no will, no conscience, or controlling mental power, or if, through the overwhelming violence of mental disease Ms intellectual power is for the time obliterated, he is not a responsible agent, and, of course, is not punishable for acts which otherwise would be criminal.

But experience and observation show that, in most' of the cases which come before the courts, where it is sufficiently apparent that disease has attacked the mind in some form and to some extent, it has not thus wholly obliterated the will, the conscience, and mental power, but has left its victim still in possession of some degree of ability in some or all these qualities. It may destroy, or it may only impair and becloud the whole mind; or, it may destroy, or only impair the functions of one or more faculties of the mind. There seem to be cases where, as Brskine said in Hadfield’s case, reason is not driven from her seat, but where distraction sits down upon it along with her, holds her trembling upon it, and frightens her from her propriety.

The term, partial insanity, has been applied to such cases by writers and judges, from Lord Hale to Chief Justice Shaw, where, as has been said, “ the mind may be clouded and weakened, but not incapable of remembering, reasoning, and judging ;” and it is here that the difficulty of the subject begins, and that confusion and contradiction in the authorities make their appearance. “ No one can say where twilight ends or begins, but there is ample distinction between night and day.” We are to inquire whether a universal test has been found wherewith to determihe, in all cases, the line between criminal accountability and non-accountability — between the region of crime and inno-' cence — in those cases which lie neither wholly in the darkness of night nor the light of day. If such a test exists or if one can bo found, it is of the utmost importance that it be clearly defined and broadly laid down, so that when it is given to a jury it may aid rather than confuse them. To ascertain whether a rule has hitherto been found, we must look to the authorities ; and so far as we have been able to examine them, the leading and familiar English cases and authorities are substantially as ’follows:

Lord Hale said the mental capacity ordinarily possessed by a child fourteen years old, was the test.

Mr. Justice Tracey, in Arnold’s case (1723), said : “ A man must be totally deprived of his understanding and memory, so as not to know what he is doing, no more than an infant, a brute, or a wild beast;” 16 Howell’s St. Tr. 764; — and the same doctrine, substantially, seems to have been acted on in ■Ferrer’s case, 19 St. Tr. 947.

The next prominent case in the books is Sadfield’s case (1800) ; and all I desire to say of that case, in this connection, is, that it seems to stand by itself. It was clear that Hadfield knew right from wrong ; it was clear that he knew the nature of the act he was about to commit; it was clear he manifested design, foresight, and cunning in planning and executing it; and it was clear he knew it would subject him to punishment, which was, indeed, his motive in committing it. The most that can be said of it is, that everybody saw he was insane, and that his insanity produced the act.

Next come three cases tried in the year 1812, — Parker’s case, reported in Collinson on Lunacy 477, Bowler's case, id. 678, and Bellingham's case; in each of which a more humane rule than that of Mr. Justice Tracey was adopted, namely, that knowledge of right and wrong, considered as abstract qualities, was the test; although in Bowler's case Mr. Justice Le Blanc added a further test, clearly suggested by and growing out of the facts of that particular case, and designed to furnish the rule by which the jury should be guided in deciding it, rather than by the formula in respect to right and wrong, namely, that it was for the jury to determine whether the prisoner was under any illusion in respect to the prosecutor, which rendered his mind, at the moment, insensible of the nature of the act he was about to commit. And in Bellingham's case, Sir James Mansfield, O. J., took the extraordinary liberty of changing the whole scope and m.eaning of the rule by telling the jury, in addition, that “ it must be proved beyond all doubt that, at the time he committed the atrocious act, he did not consider that murder was a crime against the laws of God and nature.”

It can hardly be contended that these three cases go far towards establishing a rule; for there is not much reason in calling that a rule,which the judge at the trial may feel at liberty to change, for the purpose of bringing about a conviction or acquittal, according to his individual view of the facts appearing in the case before him.

But these remarks of Mansfield, O. J., were approved by Lord Lyndhurst in Rex v. Offord, 5 C. & P. 168 (1831), although he, in the samé breath, or at least in the same charge to the jury, laid down another and a new test, which seems to be entirely inconsistent with the rule in Bellingham's case, namely, that the jury must be satisfied, before they could acquit the prisoner on the ground of insanity, that he did not know, when he committed, the act, what the effect of it, if fatal, would be with reference to the crime of murder. This is not so clear as might be desired, but I should suppose it would strike the average apprehension of a jury as about equivalent to telling them that he must know that the killing would be murder ;. which is a qualification of the rule as much in favor of life as Sir James Mansfield’s was in favor of death.

In Regina v. Oxford, 9 C. & P. 525 (1840), Lord Denman charged the jury : “ If some controlling disease was in truth the acting power within him, which he could not resist, then he will not be responsible. It is not more important than difficult to lay down a rule by which you are to be governed * * * * * * * '* * *. On the part of the defence, it is contended that the prisoner was non compos mentis, that is (as it has been said),unable to distinguish right from wrong; or, in other words, that from the effect of a diseased mind he did not know at the time that the act he did was wrong * * * *. Upon the whole, the question will be, whether all that has been proved about the prisoner at the bar shows that he was insane at the time when the act was done; whether the evidence given proves a disease in the niind as of a person quite incapable of distinguishing right from wrong. Something has been said about the power to contract, and to make a will. But I think those things do not supply any test. The question is, whether the prisoner was laboring under that species of insanity which satisfies you that he was quite unaware of the nature, character, and consequences of the act he was committing, or, in other words, whether he was under the influence of a diseased mind, and was wholly unconscious at the time he was committing the act that it was a crime.”

But three years afterwards, in Regina v. Higginson, 1 Car. & Kir. 129, Mr. Justice Maule, apparently in utter disregard of the elaborate charge of Lord Denman in Regina v. Oxford, said to the jury : “ If you are satisfied that the prisoner committed this .offence, but- you are also satisfied by the evidence that at the time of the committing of the of-fence the prisoner was so insane that he did not know right from wrong, he should be acquitted on that ground; but, if you think that at the time of the offence he did know right from wrong, he is responsible for his acts, although lie is of weak intellect.” And again, in 1848, in Regina v. Stokes, the same test, — knowledge of right and wrong in the abstract, — was applied by Baron Rolfe, who said: “ Every man is held responsible for his acts by the laws of his country, if he can discern right from wrong.”

The numerical preponderance of authority in England, as gathered from the cases thus far, would seem to be decidedly in favor of the rule that knowledge of right and wrong, without reference to the particular act, is the test; although their force is much shaken, if not wholly overthrown, by the qualifications which judges have seemed to feel at liberty to introduce, to meet their individual views, or the exigencies of particular cases; and especially by the charge of Lord Den-man in Regina v. Oxford.

The memorable effort of the House of Lords, in” 1843, to have the confusion and conflict of opinion which had arisen on this perplexing question all cleared away by one distinct and full avowal by the judges of what the law was and should be in relation to it, is too conspicuous in the history of the subject to be passed without notice.

It may safely be said that the character of the judges, and the circumstances under which the questions in McNaughten’s case (see note to Regina v. Higginson, 1 Car. & Kir. at p. 130) were, propounded to them by the House of Lords, make it morally certain that if, in the nature of things, clear, categorical, and consistent answers were possible, such answers would have been given. In other words, that if a safe, practical, legal test exists, it would have been then found by those very learned men, and declared to the world. Such a result would have brought order out of chaos, and saved future generations of lawyers and judges a vast amount of trouble in trying this kind of cases. But an examination of the answers given shows that they failed utterly to do any such thing; and it is not too much to say that, if they did not make the path to be pursued absolutely more uncertain and more dark, they at best shed but little light upon its windings, and furnish no plain or safe clue to the labyrinth. 8

In answer to the first question, all the judges, except Maulé, say that “ notwithstanding the party accused did the act complained of ■with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable, according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law, by which is meant the law of the land.” Here is an entirely new element — knowledge that he was acting contrary to the law of the land; and hereupon the inquiry arises, Is a man, acting under a delusion of this sort, presumed to know the law of the land ? The answer must be, Yes; for the judges say, further on: “ The law is administered upon the principle that every one must be taken conclusively to know the law of the land, without proof that he does know it.”

Let this proposition be examined a moment. Knowledge that the act was contrary to the law of the land is here given as a test; that is, such knowledge is assumed to be the measure of mental capacitw-suflicient to entertain a criminal intent. By what püsSíttemeans, it may be asked, can that test or measure be applied, without first finding out_ whether the prisoner, in fact, knew what the law of the land was "t How could a jury say whether a man knew, or did not know, that an act was contrary to the law of the land, without first ascertaining, whether he knew what that law was ?

It was like saying that knowledge of some fact in science, — as, for example, that a certain quantity of arsenic taken into the stomach will produce death, — shall be the test, and at the same time saying that it makes no difference whether the prisoner ever heard of arsenic, or knows anything of its properties or not. Knowledge that the act is contrary to law might be taken as a measure of capacity to commit crime, and so might knowledge of any other specific thing that should be settled upon for that purpose ; and such a test would be consistent and comprehensible, whether it were right or not; but when it is said that knowledge of a certain thing is the test, and then we are told in the next paragraph that it makes no difference whether the man ever heard of. the thing or not, I confess that I am not able to see any opening for escape out of the maze into which we are led. Whether a jury would be more successful, must depend, I suppose, on their comparative intelligence.

In connection with this rule, it is useful to bear in mind that Had-field knew he was doing an illegal a6t, and did it for the avowed purpose of bringing upon himself the punishment which he knew was the legal consequence of the act.

Maulé, J.,

holds that the general test of capacity to know right from wrong in the abstract, is to be applied in the case supposed by the first question, the same as in any other phase of mental unsoundness. • .

In answer to the second and third questions, which relate to the ternas in which the matter should be left to the jury, the judges say that “to establish a defence on the ground of insanity,-it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason from disease of the mind as not to know tlie nature and quality of the act he was doing, or, if he did know it, he did not know he was doing what was wrong.”

Suppose, now, an insane man does an act which he knows to be contrary to law, because from an insane delusion (if that term amounts to anything more than the single term insanity) he believes it to be right notwithstanding the law, that the law is wrong,, or that the •peculiar circumstances of the case make it right for him to disregard it in this instance: how are these two rules to be reconciled ? It would seem to be plain that they are in hopeless conflict, and cannot both stand.

Maulé, J., says: “ The questions necessarily to be submitted to' the jury are those questions of fact which are raised on the record. In a criminal trial the question commonly is, whether the accused be guilty or not guilty ; but in order to assist the jury in coming to a right conclusion on this necessary and ultimate question, it is usual and proper to submit such subordinate or intermediate questions as the course which the trial has taken may have made convenient to direct their attention to. What these questions are, and the manner of submitting them, is matter of discretion for the judge, — a discretion to be guided by a consideration of all the circumstances attending the inquiry. In performing this duty, it is sometimes necessary or convenient to inform the jury as to the law” — which, he repeats, is knowledge of right and wrong. He also says, there are no, terms which the judge is by law required to use, only they must not be inconsistent with the law that knowledge of right and wrong is the test.

The answer to the fourth question introduces a doctrine which seems to me very remarkable, to say the least. The question was: “ If a person, under an insane delusion as to existing facts, commits an offence, is he thereby excused ?” To which the answer was as follows: <e On the assumption that he labors under partial delusion only, and is not in other respects insane; he must be considered in the same situation, as to responsibility, as if the facts, with respect to which the delusion exists, were real. For example: if, under the influence of delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was, that the deceased had inflicted a serious injury to his character or fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.”

The doctrine thus promulgated as law has found its way into the text books, and has doubtless been largely received as the enunciation of a sound legal principle since that day. Yet it is probable that no ingenuous student of the law ever read it for the first time without being shocked by its exquisite inhumanity. It practically holds a man confessed to be insane, accountable for the exercise of the same reason, judgment, and controlling mental power, that is required of a man in perfect mental health. It is, in effect, saying to the jury, the prisoner was mad when he committed the act, but he did not use sufficient reason in his madness. He killed a man because, under an insane delusion, he falsely believed the man had done him a great wrong, which was giving rein to a motive of revenge, and the act is murder. If he had killed a man only because, under an insane delusion, he falsely believed the man would kill him if he did not do so, that would have been giving rein to an instinct of self-preservation, and would not be crime. It is true, in words, the judges attempt to guard against a consequence so shocking, as that a man may be punished for an act which is purely the offspring and product of insanity, by introducing the qualifying plmase, “ and is not in other respects insane.” That is, if insanity produces the false belief, which is the prime cause of the act, but goes no further, then the accused is to be judged according to the character of motives which are presumed to spring up out of that part of the mind which has not been reached or affected by the delusion or disease. This is very refined. It may be that mental disease sometimes takes a shape to meet the provisions of this ingenious formula ; or, if no such case has ever yet existed, it is doubtless within the scope of omnipotent power hereafter to strike with disease some human mind in such peculiar manner that .the conditions will be fulfilled ; and when that is done, when it is certainly known that such a case has arisen, the rule may be applied without punishing a man for disease. That is, when we can certainly know that, although the false belief on'which the prisoner acted was the product of mental disease, still, that the mind was in no other way impaired or affected, and that the motive to the’ act did certainly take its rise in some portion of the mind that was yet in perfect health, the rule may be applied without any apparent wrong. But it is a rule which can be safely applied in practice, that we are seeking; and to say that an act which grows wholly out of an insane belief that some great wrong has been inflicted, is at the same time produced by a spirit of revenge springing from some portion or corner of the mind that has not been reached by the disease, is laying down a pathol#gical and psycholgical fact which no human intelligence can ever know to be true, and which, if it were true, would not be law, but pure matter of fact. No such distinction ever can or ever will be drawn in practice ; and the absurdity as well as inhumanity of the rule seems to me sufficiently apparent without further comment.

To form a correct estimate of the value of these answers, we have only to suppose that, at the end of a criminal trial where the defence is insanity, they be read to .the jury for their guidance in determining the question with which they are charged. Tried by this practical test, it seems to me, they utterly fail; and the reason of' the failure, 'as I think, is, that it was an attempt to lay down as law that which) from its very nature, is essentially matter of fact, i - It is a question of fact whether any universal test exists, and it is 'also a question of fact what the test is, if any there be.

The efforts-of text writers to extract a rule from the cases have not, in my judgment, been more successful. See 1 Russ. Cr. 13 ; Roscoe’s Cr. Ev. 944. It is worthy of notice, however, that Mr. Chitty lays down a rule from which is excluded all reference to knowledge of right and wrong, or moral good and evil, thus :

“ Where there is only such partial derangement as leaves the party free to act or to forbear in the particular case in question, or where he is guilty of the crime during a lucid interval, he will be equally liable to punishment with those who are perfectly sane. Where, however, the mind labors under such a delusion that, though it discerns some objects clearly, it is totally deranged as to the objects of its attack, the party will be entitled to be acquitted.” 1 Ch. Or. L. 725. To my mind this is but another form of saying that where the act is the product of mental disease it is not crime ; which was the instruction given in this case.

If we leave the English rule where it seems to be left by these authorities, I think an examination of the American cases will not lead to any more satisfactory result.

In Commonwealth v. Rogers, 7 Met. 500 (1844), Shaw, C. J., instructed the jui'y that “ a person is not responsible for any criminal act he may commit, if, by reason of mental infirmity, he is incapable of distinguishing between right and wrong in regard to the particular act, and of knowing that the act itself will subject him to punishment ; or has no will, no conscience, or controlling mental power ; or has not sufficient power of memory to recollect the relations in which he stands to others, and in which they stand to him; or has his.reason, conscience, and judgment so overwhelmed by the violence of disease us to act from an uncontrollable impulse.”

Here seem to be four distinct tests. The first is substantially that given by Lord Denman in Regina v. Oxford, but with one most important qualification added, namely, knowledge that the act will subject him to punishment. But how can it be said that such knowledge constitutes one of the links in a chain of conclusive evidence, — that it is one fact in a chain of facts from which that degree of insanity which will excuse a person from crime is to be conclusively found?

If that be so, then certainly, a legal quality, effect, or significance is given to it by its position in the chain, which no one would ever think it possessed when standing alone. The desire for revenge may be so strong as to outweigh the fear of a punishment which a man without any mental disease knows must follow his act. But the rule is, that, in addition to the knowledge of right and wrong in respect to the particular act, the accused must have been capable of knowing that the act itself would subject him to punishment.

It is doubtless true that ability to know that a certain act will be followed by punishment, furnishes evidence of the mental condition. So would knowledge of any other fact in law or science. But I can see no more reason for holding that such knowledge is any part of a legal test of capacity to commit Crime, than for holding that knowledge of the cause of an eclipse is entitled to the same effect.

The second rule relates to a case where there can be no doubt,— where the will, the conscience, and controlling mental power are all gone; and the fourth is substantially the same, — wher^ the reason, conscience, and judgment are so overwhelmed by the violence of disease, that he acts from uncontrollable impulse. There can be no very appreciable legal distinction between a person who has no will, no conscience, or controlling mental power, and one whose reason, conscience, and judgment are so overwhelmed by the violence of disease as to act from an uncontrollable impulse. In both cases it is an act in which reason, conscience, judgment, and will do hot participate; in a word, it is the-product of mental disease.

Power of memory sufficient to recollect the relations in which he stands to others and in which others stand to him, which is given as the third test, seems to me no more a legal criterion,‘than power of mepiory to recollect any other fact which a healthy mind would be expected to remember; and such power of memory or its lack, would be a fact, like other facts, for the jury to weigh in judging whether he had the mental capacity to entertain a criminal intent.

There is no doubt but these instructions of the learned and eminent Chief Justice of Massachusetts have been largely followed in cases since tried in this country; but the course has been by no mean's uniform, as we shall see. ■ ■

In New York and Pennsylvania, in the two leading cases of Freeman v. People, 4 Denio 9, and Commonwealth v. Mosler, 4 Barr. 267, capacity to distinguish right from wrong was given as the naked test. But in neither of those States has the rule thus laid down been followed with uniformity. In the trial of Huntington,, for forgery, in New York city, in 1856, Judge Capeón said to the jury: “ To constitute a complete defence, insanity, if partial, as monomania, must be such in degree as to wholly deprive the accused of the guide of reason in regard to the act with which he is charged, and of the knowledge that he is doing wrong in committing it.” And the remarks of Edmonds, J., in the earlier case of The People v. Kleim, 1 Edm. S. Cas. 13, are wholly at war with any such rule as that promulgated in People v. Freeman. He says: “ The moral as well as the' intellectual faculties may be so disordered by the disease as to deprive the mind of its controlling and directing power ; — that he must know the act to be wrong and punishable, and be able to compare and choose between doing it and not doing it.”

In Pennsylvania, in Commonwealth v. Knepley (1850), knowledge of right and wrong in regard to the particular act was given as the test; and in Commonwealth v. Haskell, the judge charged that “ the true test lies in the word power. Has the defendant in a criminal case the power to distinguish right from wrong, and the power to adhere to the right and avoid the wrong ?”

It would probably not be far out of the way to say that the number of American cases where -knowledge of right and wrong in the abstract, and knowledge of the nature and quality of the act, — that it was wrong, — have been given as the test, is about equal, with a tendency of late years to the latter form; while it will appear that', in almost every case where any rule has been given on the subject, it has been modified and explained to meet the facts of the particular case, or to carry out the personal views of the judge on the matter of insanity.

But there are not wanting cases where all tests have been discarded. In State v. Felter, 25 Iowa 67, Dillon, C. J., says: “ The jury, in substance, should, be told that if the defendant’s act in taking the life of his wife was caused by mental disease or unsoundness, which dethroned his reason and judgment with respect to that act, which destroyed his power rationally to comprehend the nature and consequences of that act, and which, overpowering his will, irresistibly forced him to its commission, then he is not amenable to legal punishment. But if the jury believe, from all the evidence and circumstances, that the defendant was in possession of a rational intellect and sound mind, and allowed his passions to escape control, then, though passion may for the time being have driven reason from her seat and usurped it, and have urged the defendant, with a force at the moment irresistible, to desperate acts, he cannot claim for such acts the protection of insanity.” And in Stevens v. The State of Indiana, reported in the Am. Law Reg., Sept., 1870, which was an indictment for murder, and the defence insanity, an instruction to the jury that, if they believed the defendant knew the difference between right and wrong in respect to the act in question, if he was conscious that such act was one which he ought not to do, he was responsible, was held erroneous.

In the course of his opinion in that case, Gregory, J., speaking of the charge in Commonwealth v. Rogers, said: “ It is by no means clear, and we think it is not entitled to the weight usually awarded it.”

Very much to the same effect was State v. Spencer, 1 Zabriskie 186. Hornblower, O. J., said: In my judgment the true question to be put to the jury is, whether the prisoner was insane at the time of committing the act; and in answer to that question there is little danger of a jury’s giving a negative answer, and convicting a prisoner who is proved to be insane on the subject matter relating to or connected with the criminal act, or proved to be so .far or so generally deranged as to render it difficult or almost impossible to discriminate between his sane and insane acts.”

And, also, a case said to have been tried in York county, Maine, in 1886, where the court charged the jury that if they were satisfied the prisoner was not of sound memory and discretion at the time of committing the act, they were bound to return a verdict of acquittal. Bay. Med. Jurisp. Ins., § 42. To the same effect, also, are our own cases of Prescott and Corey, referred to by the attorney-general in his brief.

Professor Greenleaf adopts the charge of Chief Justice Shaw, in Rogers’ case, without any attempt at modification or explanation, as covering the whole subject, so far as criminal responsibility is concerned. 2 Gr. Ev., § 372.

Mr. Bishop undertakes to give the forms in which courts have put the question of insanity to the jury in most of the modern cases. 1 Bisli. Or. L. 475. But I have not been able to find a case, ancient or modern, where the judge did actually give the question of insanity to the jury in just the terms of Mr. Bishop’s form; and he says, speaking of his rule: “ This form of stating the question of insanity to' the jury is well in cases where it is admitted that the mental disease or imperfection extends only to the intellectual powers, and the party has full control of his actions. How numerous comparatively these cases are is matter of science and fact nowhere to be discussed.” Id., § 478.

In regard to the difficulties of the subject the same author says: “ The labors of writers on insanity have been exhausted in attempts to find some test of ready application to determine when a person is to bo deemed insane, and when not, in reference to his responsibility for crime. And judges, less informed on this subject than on most other subjects of legal science, have struggled under the inherent- embarrassments of the question itself, under the influence of erroneous notions in the community, and under the failures of counsel and witnesses in particular cases to present the real points of inquiry. The result has been, that instructions given in reference to particular facts appearing in the cases before them have seemed, to casual observers, to be very discordant, while to scientific inquirers after the facts of insanity, they have seemed very absurd.” Id., § 474. And in a note, “ It seems to me there has been too much attempt to do what in its nature is impossible, and too little attempt to do what is possible regarding this matter. It is not, I submit, possible, in the nature of things, that the court should find an exact and literal rule which may be put into the hand of a juryman, wherewith to measure the mind, and determine whether it is criminally responsible or not, for its act.”

It is to be remarked that the same thing, in substance, was admitted by the judges in McNaughten's case. Tindal, C. J., giving the opinion of the majority, said: “ We have foreborne entering into any particular discussion upon the questions, from the extreme difficulty of applying those answers to cases in which the facts are not brought judicially before us. The facts of each particular case must, of necessity, present themselves vtith endless variety,, and with every shade of -difference in each case; and we deem it at once impracticable, and dangerous if it were practicable, to attempt to make minute applications of the principles involved in the answers to yóur Lordships’ questions.” -

Maulé, J., speaking for himself, observed: “ I feel great difficulty in answering the questions put by your Lordships on this occasion. First, because they do not appear to arise out of, and are not put in reference to, a particular case, or for a particular purpose, which might explain or limit the generality of their terms, so that full answers to them ought to be applicable to every possible state of facts not inconsistent with those assumed in the questions.”

It is entirely obvious that a court of law undertaking to lay down an abstract general proposition, which may be given to the jury in all cases, by which they are to determine whether the prisoner had capacity to entertain a criminal intent, stands in exactly the same position as that occupied by the English judges in attempting to answer the questions propounded to them by the House of Lords in this case ; and whenever such an attempt is made, I think it must always be attended with failure, because it is an attempt to find what does not exist, namely, a rule o£ law wherewith to solve a question of fáct.

This is the only conclusion I desire to draw from the cases and text writers referred to. It is clear to me that judges have adapted their language to the facts of the particular case before them; and that when anything is said about knowledge of right and wrong, or knowledge of the quality of the act, or any other legal test, it has been, and will inevitably continue to be,-qualified and explained in such a way, to meet the evidence upon which the jury are to pass, that its character as a rule entirely disappears.

No one but the Creator of all things can look in upon the chaos of a disordered mind, and determine with certainty whether its powers are so much prostrated, enfeebled, or deranged, that the unhappy sufferer has ceased to be an accountable being. Still the court and jury must determine that question, approximately, as best they can in each individual case; and it makes no difference, so far as I can see, with the difficulty of the subject, whether Lord Brougham's view, that a distinction is to be made between the moral accountability of a man to his Maker and his accountability to human tribunals, be accepted or not. With this duty to perform, and this responsibility upon them, courts naturally and properly turn to men of science, such as have had large experience in the care and treatment of the insane, for aid ; and the questions allowed to be put to experts and answered by them, both in England and this country, show that what is laid down as law in theory, is almost universally treated as fact in practice.

At the trial where insanity is set up as a defence, two questions are presented: — First: Had the prisoner a mental disease ? Second: If he had, was the disease of such a character, or was it so far developed, or had it so far subjugated the powers of the mind, as to take away the capacity to form or entertain a criminal intent ? The first is so purely a question of fact, that no one would think of disputing it any sooner than he would dispute that it was a question of fact whether a man has consumption or not. It is in settling the second that all the difficulty arises.

The instructions asked for in this case go upon the ground that this is a mixed question of law and fact; that where there is delusion there can be no criminal intent; and that, where there is capacity to know right from wrong in reference to the particular act, there is capacity to commit crime. , It is true, the sixth request does not present the matter in just this form; but if knowledge of right and wrong, as to the act, is to be considered a legal test of criminal accountability, it must follow that those who have such knowledge are accountable, as well as that those who have it not are not accountable, y And this court is now called on, as a court of law, to decide whether either of these tests shall be adopted in this State ; and if so, which.

It would doubtless be convenient to adopt some such test. It would, to some extent, save the trouble of trying each case,- as it arises, on its own special and peculiar facts; at any rate, it would narrow the range, of investigation to a search for the facts constituting the test adopted. But in cases of this sort, the argument of convenience is not to be admitted. No formal rule can be applied in settling t questions which have relation to liberty and life, merely because it will j'lessen the labor of the court or jury. Nor ought such a rule to be “ adopted upon the authority of cases, unless those cases show beyond a doubt not only its existence, but that it is founded in reason and fundamental truth. Expressions of even the most eminent judges must not be mistaken for the enunciation of a universal principle of law, when it appears that they were used in charging the jury upon the ; facts arising in a particular case.

The instructions given also imply that this is a mixed question of law and fact; that the only element of law which enters into it is, that no man shall be held accountable, criminally,for an act which was the offspring and product of mental disease. Of the soundness of this proposition there can be no doubt. Thus far all are agreed; and the doctrine rests upon principles of reason, humanity, and justice, too firm and too deeply rooted to be shaken by any narrow rule that might be adopted on the subject. No argument is needed to show that to hold that a man may be punished for what is the offspring of disease would be to hold that lie may be punished for disease. Any rule' which makes that possible cannot be law.

It will hardly be contended, I suppose, that delusion, or knowledge of right and wrong with reference to the act, or any other thing, can, with any degree of propriety, be called a legal test of the mental capacity to commit erime, unless that capacity is determined absolutely, in all cases, by the presence or absence of the fact which is assumed to constitute the test.

If we speak of delusion, for instance: before that can be adopted as the test, in the sense intended by the request in this case, it must appear that it makes no difference whether the delusion has any reference to or connection with the act or not. If we say, as Erskine said in Sadfield’s case, that delusion is the test when it appears to have produced the act, but not when it does not appear to have produced the act, — that the delusion and the act should be connected, — we admit that delusion eannot be a legal test, because it is not a universal test.

And even if it were established, that in all cases where there is delusion there is not capacity to commit crime, with as much certainty as that a heavy body left free in the air will fall to the earth, it still remains a fact. That a heavy body will fall is a fact, although it is at the same time a law of nature: that delusion attends incapacity for crime would be a fact still, although, were the fact ascertained to be certain and universal, it might be called a law of mental disease, and might, therefore, be given to the jury as a criterion, without any positive or practical wrong.

Yet, in that view, it would be the law of the land in no other sense than the laws of nature and physics may be considered laws of the land. Now this court, sitting for the decision of questions of law, is not at liberty to receive and consider evidence, or weigh and determine matters of fact. 1

But the very first step in the inquiry to ascertain if there be any test or criterion that may be safely given to the jury on this subject, whether as a faet universally true, or as a principle of law, involves the examination of an immense mass of evidence, as complicated and difficult to understand as can well be conceived. Moreover, it would require a degree of skill and scientific attainment which could only be reached by years of special study and intelligent observation. Not only ought all the facts bearing on the question to be collected from every asylum for the insane throughout the world, but, as an inflexible rule is to be established, the facts of all other cases, where the patient has never received scientific treatment, ought to be added to the stock. Then, after collecting the facts in this way, it would be necessary to compare cases and classes of cases one with the other, to weigh facts against facts, to balance theories and opinions, and finally to deduce a result which might itself turn out to be nothing more than a theory or opinion after all. At any rate it would be a deduction of fact.

It need not be said that this is not the business of a court of law. It is a work which can only be reasonably well done by men who devote their lives exclusively to its accomplishment. Such a work has doubtless been done, with extraordinary patience and ability, by our distinguished countryman, Dr. Bay; and the result of his laborious investigation is, that no test can be found. He says: “ To persons practically acquainted with the insane mind, it is well known that in every hospital for the insane are patients capable of distinguishing between right and wrong, knowing well enough how to appreciate the nature and legal consequences of their acts, acknowledging tlie sane-, tions of religion, and never acting from irresistible impulse, but de-! liberately and shrewdly.” Bay’s Med. Jurisp. Ins., § 43.

If we were at liberty to weigh and consider evidence upon the question, it is clear that such testimony must outweigh all the convenient formulas and arbitrary dogmas laid down by lawyers and judges from the time of Lord Hale to the present, simply for the reason that Dr. Bay is qualified by study and observation to give an opinion, while lawyers and judges are not. But we do not consider evidence upon this point at all. Whether there is any universal test is as clearly a pure matter of fact, as is the question what that test may be.

A strong argument in favor of the instructions given in this case, and of consequence against proceeding further to give the specific instructions requested, is found, both upon principle and authority, in the course of decisions where testamentary capacity has been before the courts.

In the well known leading case of Dew v. Clarke, 3 Addams 79, decided in 1826, Sir John Nicholl gave his opinion thus: “The true criterion — the true test — of the absence or presence of insanity I take to be, the absence or presence of what, used in a certain sense of it, is comprehended in a single term, namely, delusion. Wherever the patient once conceives something extravagant to exist, which has still no existence but in his own heated imagination ; and wherever, at the same time, having once so conceived, he is incapable of being, or at least of being permanently, reasoned out of that conception, — such patient is said to be under a delusion, in a peculiar half-technical sense of the term; and the absence or presence of delusion, so understood, forms in my judgment the true and only test or criterion of absent or present insanity. In short, I look upon delusion, in this sense of it, and insanity, to be almost if not altogether convertible terms; so that a patient, under á delusion, so understood, on any subject or subjects, in any degree, is, for that reason, essentially mad or insane on such subject or subjects, in that degree.” ■

After a very extended review of the evidence in the case, he draws this conclusion : “ The will propounded in this cause, a will virtually disinheriting the daughter, being the direct, unqualified offspring of that morbid delusion, — proved, I may now say without any qualification or restriction, to have been ever present to the mind of the deceased as to the character and conduct of his daughter — being, if I may so term it, the very creature of that morbid delusion, put into act and energy — I, at least, can arrive at no other conclusion than that the deceased was insane at the time of his making the will propounded in this cause ; and consequently that the will is null and void in law.”

In view of this explicit avowal, it may be considered somewhat remarkable that this case should have been regarded as an authority for ScPything more than this, — that delusion is the test of testamentary capacity, so far that a disposition of property by a will, which is shown to have been the direct, unqualified ’offspring of morbid delusion, cannot be upheld. If a morbid delusion produced the act, then the act is not valid. But, whether through a misconception of this case, or by adopting the theory of some writers, who maintain that the mind, though it has varied faculties, is one and indivisible, so that if it be disordered in any one of these faculties it cannot be said to be sound though its other faculties and functions remain undisturbed, a doctrine appears to have gained some currency in England to. the effect that delusion on any matter, however remote from the subject of the will, and however disconnected from it, is conclusive evidence tif unsoundness of mind, and, therefore, altogether destroys testamentary capacity. Waring v. Waring, 6 Moore P. C. Cas. 341; and see, also, Smith v. Tebbitt, L. Rep., 1 P. & D. 398.

This idea was attacked and completely overthrown in the case of Banks v. Goodfellow, Law Rep., 5 Q. B. 549, decided in July, 1870.

In that case it appeared that a testator labored under two fixed delusions : one, that he was pursued by spirits; the other, that a man, long since dead, came to molest him, — neither delusion influencing or calculated to influence the particular testamentary disposition, made by him. Brett, J., who tried the case, left it to the jury to say whether, at the time of making the will, the testator was capable1 of such knowledge and appreciation of facts, and was so far master of his intentions and .free from delusions as would enable him to have a will of his own in the disposition of his property, and act upon it.

It will be observed that, if delusion were to be regarded as a universal legal test, there was no question here to be submitted to the jury: a verdict should have been ordered against the will, for the existence of delusions was not disputed. But the instructions were held correct, and Lord Chief Justice Cockburn, in the course of his elaborate opinion, says: “ Every one must be conscious that the faculties and functions of the mind are various and distinct, as are the powers and functions of the physical organization. The instincts, the affections, the passions, the moral sense, perceptions, thought, reason, imagination, memory, are so many distinct faculties or functions of the mind. The pathology of mental disease, and the experience of insanity in its various forms, teach us that while on the one hand all the faculties, moral and intellectual, may be involved in one common ruin, as in the case of a raving maniac, one or more only of these faculties or functions may be disordered, while the rest are left unimpaired and undisturbed ; that while the mind may be overpowered by delusions which utterly demoralize and unfit it for the perception of the true nature of surrounding things, or for the discharge of the common obligations of life, there often are, on the other hand, delusions which, though the offspring of mental disease, leave the individual in all other respects rational, and capable of transacting the ordinary affairs, and fulfilling the duties and obligations, incidental to the various relations of life.”

The exact question presented to the court in this case, namely, whether unsoundness, not operating on the mind of the testator in regard to the particular testamentary disposition, will be sufficient to deprive him of the power of disposing of his property by will, was said to be a new question, not before presented for judicial decision in England.

But in Boardman v. Woodman, 47 N. H. 120, decided four years earlier in this State, the court below, Bartlett, J., charged the jury “ that the mere fact of the possession of a delusion may not be sufficient to render a person utterly incapable of making a valid will; that a person of sufficient mental capacity, though under a delusion, may make a valid will: if the will is in no way the offspring of the delusion, it is unaffected by it.”

This instruction was sustained ; and I am unable to find anything in the opinion of the court that conflicts with the doctrine of Banks v. Qoodfallow. Sargent, J., in the course of his opinion, says: “Delusion, in the technical sense, as explained by Sir John Nicholl, is the legal test of the presence of active insanity; and if the will is the offspring of this delusion, it should t)e set aside.”

It is sufficiently obvious that neither Sir John Nicholl nor Judge Sargent would hold that a man who labors under a delusion that his legs are made of glass, or that he is charged with controlling the motions of the planetary system, but is in other respects sane, would therefore be incapable of making a-valid will.

It is not necessary here to express any assent to or dissent from the manner in which the subject is treated in Dew v. Clarke and Boardman v. Woodman. Whether the inquiry is advanced by saying that the act, to be invalid, must be the offspring of delusion, instead of saying that it must be the offspring of mental disease, is a matter which does not concern this argument. See remarks of Lord Penzance in Smith v. Tebbitt, sup. If the doctrine of Banks v. Goodfellow and Boardman v. Woodman be applied in the case under consideration, it would clearly have been error to give the instruction as to delusion requested by defendant’s counsel; because delusion cannot be a legal test, if, while delusions exist in the mind, an act no way connected with such delusions nor produced by them is to be held valid.

How far the analogy holds between testamentary capacity and capacity to commit crime, it is not necessary to inquire, because delusion has never, so far as I can find, been regarded as a test in criminal cases, unless Hadfield’s case is to be excepted; and all the argument requires is, to show that the rule, which it has been thought may be drawn from the authorities in civil cases, has no existence even there, in the broad and universal terms in which the court was requested to apply it on the trial of this case.

Fortunately we are not embarrassed by any decisions, or, so far as I know, any dicta or expressions of single judges in this State, at variance with the broad philosophical doctrine laid down by the judges who tried this case. Indeed, there seems to have been a strong leaning heretofore in the same general direction, as is shown by the quotations from charges of two of our late chief justices, Richardson and Fell, in the brief of the attorney-general for the State.

In view of these considerations, jwe are led to the conclusion that the instruction given to the jury in this case, that “ If the defendant killed his wife in a manner that would be criminal and unlawful if the defendant were sane, the verdict should be ‘ not guilty by reason of insanity,’ if the killing was the offspring or product of mental disease in the defendant,” was right; that it fully cover's the only general, universal element of law involved in the inquiry; and, therefore, that any further step in the direction indicated by the requests would have been an interference with the province of the jury, and the enunciation of a proposition which, in its essence, is not law, and which could not in any view safely be given to the jury as a rule for their guidance, because, for ought we can know, it might have been false in fackJ

This would seem to dispose of the whole case. All the other instructions given are only the direct logical consequence of this principle.

Whether the defendant had a mental disease, as before remarked, seems to be as much a question of fact as whether he had a bodily-disease ; and whether the killing of his wife was the product of that disease, was also as clearly a matter of fact as whether thirst and a quickened pulse are the product’ of fever. That it is a difficult question does not change the matter at all. The difficulty is intrinsic, and must be met from whatever direction it may be approached, Enough has already been said as to the use of symptoms, phases, or manifestations of the disease as legal tests of capacity to entertain a criminal intent. They are all clearly matters of evidence, to he weighed by the jury upon the question whether the act was the offspring of insanity’: if it was, a criminal intent did not produce it; if it was not, a criminal intent did produce it, and it was crime.

The instructions as to insane impulse seem to be quite correct, and entirely within the same principle. If the defendant had an insane impulse to kill his wife, which he could not control, then mental disease produced the act. If he could have controlled it, then his will must have assented to the act, and it was not caused by disease, but by the concurrence of his will, and was therefore crime.

These instructions have now been twice given to the jury in capital cases in this State, — first, by Chief Justice Perley, in State v. Pike, and now again by Judge Doe, in the case before us. In State v. Pike, no exceptions were taken to this part of the charge, and the questions here raised were not before the whole court for judicial determination, although they were printed in the case as transferred, and no objection to their form is understood to have been made.

But a question was passed upon in that case, which, carried to its logical results, goes far towards settling most of the questions raised upon the instructions here. It was claimed that the defendant was irresponsible by reason of a species of insanity called dipsomania. The court instructed the jux*y that “ whether there is such a mental disease as dipsomania, and whether the defendant had that disease, and whether the killing of Brown was the product of such disease, were questions of fact for the jury.” These instructions were specially excepted to by the defendant, and were held correct. This would seem to be entirely inconsistent with the idea that either delusion or knowledge of right and wrong is, as matter of law, a test of criminal capacity; and would also seem to be about equivalent to holding, in ■general terms, that it was for the iurv to sav-whether the -killing- w-as; the product of-mental Hxlease7andretaxm-tlieir^erdiet--ef-i^jiilLy^i ox~“ not guilty by reason of insanity,” as they found that fact to be.

We should”be'lirow to establish any doctrine on this important subject, which we could see would be likely to result in the escape of malefactors from punishment, or afford encoxxragement to a fictitious defence of insanity; and no considerations of convenience or ease in the administration of the law, as before observed, should be allowed to weigh at all against adhering to any doctrine or any course of practice that rests upon sound reasoxx, or tlxat appears to be necessary for the attainment of right results, wlxether such doctrine or practice is supported by uniform authority or not.

Still it is no objection to the course of the judges who tried this case, and who tried Pike’s case, that it relieves the subject of some of its most formidable difficulties so far as the court is coxxcerned, and at the same time furnishes at least one clear and explicit direction which the jury can understand.

No untried or doubtful theory is adopted. The instruction given was always law, and always must be law, while jxxstice is administered upon principles at all consonant with the calls of civilization and humanity. Tlxe only objection is, that the court did not go further, and undertake to explore a region where all is doubt, uncertainty, and confusion upon the authorities, and where, upon principle, they had no right to go at all; that they did not undertake to lay down a rule where, if we could allow ourselves to investigate the fact, we should probably find there is and can be no rule, nor to enunciate as law a pure matter of fact which can only be absolutely known to the Almighty.

I may add, that it confirms me in the belief, that we are right, or at least have taken a step in the right direction, to know that the view embodied in this charge meets the approval of men who, from great experience in the treatment of the insane as well as careful and long study of the phenomena of mental disease, are infinitely better qualified to judge in the matter than any court or lawyer can be. See Ray’s Med. Jurisp. Ins., 5th ed., § 44.

The satisfaction with which the charge to the jury in State v. Pike is understood to have been received by the most enlightened members of the medical.profession, proves to my mind, not that we have thrown down old landmarks to adopt any theory based on a partial, imperfect, or visionary view of the subject, but that, in a matter where we must inevitably rely to a great extent upon the facts of science, we have consented to receive those facts as developed and ascertained by the researches and observations of our own day, instead of adhering blindly to dogmas which were accepted as facts of science and erroneously promulgated as principles of law fifty or a hundred years ago.

The last instruction, that the defendant was to be acquitted on the ground of insanity unless the jury were satisfied beyond a reasonable doubt that the killing was not produced by mental disease, was in accordance with State v. Bartlett, 43 N. H. 224, and was correct.

Exceptions overruled.