An insane person cannot be legally charged with a criminal intent ; State v. Brown, 36 Utah 46, 102 Pac. 641, 24 L. R. A. (N. S.) 545. Where it is admitted that a defendant in a murder case is neither an idiot nor an in sane person, it is not competent to prove that he is weakminded; Rogers v. State, 128 Ga. 67, 57 S. E. 227, 10 L. R. A. (N. S.) 999, 119 Am. St. Rep. 364.
In reply to a defence of want of criminal capacity, proof was admitted that defend ant had sometimes feigned insanity ; Naanes v. State, 143 Ind. 299, 42 N. E. 609. But in sanity cannot be proved by reputation; Walk er v. State, 102 Ind. 502, 1 N. B. 856; State v. Coley, 114 N. C. 879, 19 S. E. 705.
See HYPNOTISM; KLEPTOMANIA.
The effect of the•plea of insanity has some times been controlled by the instructions of the court in regard to the burden of proof and the requisite amount.
In many of the states, there has been a tendency towards a relaxation of the rule settled in England, and which formerly prevailed in almost all the states, to treat a plea of insanity as being strictly one in con fession and avoidance which must be proved by the defendant either beyond a reasonable doubt or, as was said in many American cas es, by a preponderance of evidence. See BURDEN OF PROOF.
The English rule was thus stated in Mc Naghten's case: "Every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction ;" 10 Cl. & F. 200; and it is the settled law of England ; 3 C. & K. 188 ; 4 Cox, C. C. 149; 3 id. 155.
As to whether such proof must be by a preponderance of evidence or beyond a rea sonable doubt, the language of the English judges is not entirely free from ambiguity.
In many of the American cases the Eng lish rule is adhered to ; State v. Spencer, 21 N. J. L. 202, followed in Genz v. State, 59 N. J. L. 488, 37 Atl. 69, 59 Am. St. Rep. 619; Ortwein v. Com., 76 Pa. 414, 18 Am. Rep. 420 ; Com. v. Gerade, 145 Pa. 289, 22 Atl. 464, 27 Am. St. Rep. 689 ; State v. Brandon, 53 N. C. 463 ; Kriel v. Corn., 5 Bush. (Ky.) 362; Moore v. Com., 92 Ky. 630, 18 S. W. 833; Lovegrove v. State, 31 Tex. Cr. R. 491, 21 S. W. 191; Boswell v. State, 63 Ala. 307, 35 Am. Rep. 20 ; Maxwell v. State, 89 Ala. 150, 7 South. 824; Parsons v. State, 81 Ala. 577, 2 South. 854, 60 Am. Rep. 193 (where the subject is discussed at large) ; Bolling v. State, 54 Ark. 588, 16 S. W. 658 ; People v. Bawden, 90 Cal. 195, 27 Pac. 204; State v. De Rance, 34 La. Ann. 186, 44 Am. Rep. 426; State v. Clements, 47 La. Ann. 1088, 17 South. 502 ; State v. Lawrence, 57 Me. 574; Cora. v. Rogers, 7 Mete. (Mass.) 500, 41 Am. Dec. 458 ; State v. Hanley, 34 Minn. 430, 26 N. W. 397 ; State v. Page's, 92 Mo. 310, 4 S. W. 931; Bond v. State, 23 Ohio St. 349; State v. Bundy, 24 S. C. 439, 58 Am. Rep. 263; Baccigalupo v. Com., 33 Gratt. (Va.) 807, 36 Am. Rep. 795 ; State v. Strauder, 11 W. Va. 747, 27 Am. Rep. 606. See 36 Am. Rep. 467, n.
The terms of this rule cannot be better stated than in Com. v. Drum, 58 Pa. 9: "Where the killing is admitted, and insanity or want of legal responsibility is alleged as an excuse, it is the duty of the defendant to satisfy the jury that insanity actually ex isted at the time of the act, and a doubt as to such insanity will not justify a jury in ac quitting upon that ground." This language was quoted with strong approval in Ortwein v. Cora., 76 Pa. 414, 425, 18 Am. Rep. 420. In a much later Pennsylvania case it was said that "the burden of proof of insanity, was with the defence from the beginning, and that it never shifted." Com. v. Heidler, 191 Pa. 375, 43 Atl. 211.
Many of the cases above cited rest upon the Idea that the issue is to be determined in each case by a preponderance of evidence, so that an effort to deduce from them a well established rule, supported by the weight of authority, as to whether the test is to be con sidered a preponderance of evidence or the establishment of the defence beyond a rea sonable doubt, is subject to the same ambigu ity that attaches to the language of the Eng lish judges. In addition to this question
which arises upon the. cases which put the burden of the defence upon the accused many courts have held that when evidence of insanity is introduced by the defendant, the burden of proving his criminal capacity is cast upon the prosecution (and most of the cases go to the extent of including this as one of the elements of the crime which must be proved beyond a reasonable doubt) ; U. S. v. Faulkner, 35 Fed. 730 ; Guiteau's Case, 10 Fed. 161, and note ; Hodge v. State, 26 Fla. 11, 7 South. 593 ; Brown v. State, 40 Fla. 459, 25 South. 63 ; State v. Johnson, 40 Conn. 136 ; Langdon v. People, 133 Ill. 382, 24 N. E. 874 ; Plake v. State, 121 Ind. 433, 23 N. E. 273, 16 Am. St. Rep. 408; State v. Nixon, 32 Kan. 205, 4 Pac. 159 ; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162 (but where the evidence is insufficient to raise a reasonable doubt, it does not shift the bur den of proof to the prosecution; Snider v. State, 56 Neb. 309, 76 N. W. 574); State v. Pressler, 16 Wyo. 214, 92 Pac. 806, 15 Ann. Cas. 93 ; Territory v. McNabb, 16 N. M. 625, 120 Pac. 907 ; Cunningham v. State, 56 Miss. 269, 21 Am. Rep. 360 ; State v. Bartlett, 43 N. H. 224, 80 Am. Dec. 154 ; Brotherton v. People, 75 N. Y. 159 ; Walker v. People of N. Y., 88 N. Y. 81; King v. State, 91 Tenn. 617, 20 S. W. 169 ; Revoir v. State, 82 Wis. 295, 52 N. W. 84 ; and the supreme court of the United States has accepted this latter doctrine ; Davis v. U. S., 160 U. S. 469, 16 Sup. Ct. 353, 40 L. Ed. 499 ; where it was held that the jury, to convict, must be "able, upon their consciences, to say that the evi dence before them, by whomsoever adduced, is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged." In a later case, Battle v. U. S., 209 U. S. 38, 28 Sup. Ct. 422, 52 L. Ed. 670, where the defence of insanity was interposed, the same court said: "The judge instructed the jury that the burden of proof was on the govern ment to prove that fact beyond a reasonable doubt, and he was not called upon to go fur ther. Until evidence is given on the other side, the burden of proof is satisfied by a presumption arising from the fact that most men are sane. In this case there was the merest shadow of evidence that the defend ant was not of sound mind. The jury were told to consider all the evidence, including the bearing of the prisoner and the manner of his own testimony, and the evidence re lied upon by him was stated. In the circum stances he could ask no more." In a criminal case the burden is on the de fendant to prove by a preponderance of evi dence the defence of insanity ; People v Suesser, 142 Cal. 354, 75 Pac. 1093 ; State v. Scott, 49 La. Ann. 253, 21 South. 271, 36 L. R. A. 721; State v. Robbins, 109 Ia. 650, 80 N. W. 1061; People v. Willard, 150 Cal. 543, 89 Pac. 124 ; Fults v. State, 50 Tex. Cr. R. 502, 98 S. W. 1057 ; Thomas v. State, 55 Tex. Cr. R. 293, 116 S. W. 600 ; State v. Hancock, 151 N. C. 699, 66 S. E. 137; Pribble v. Peo ple, 49 Colo. 210, 112 Pac. 220 ; though he need not prove it beyond a reasonable doubt ; Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330 ; Adair v. State, Okl. Cr. 284, 118 Pac. 416 ; but only to the satisfaction of the jury ; State v. Porter, 213 Mo. 43, 111 S. W. 529, 127 Am. St. Rep. 589 ; and when that is done the burden is shifted ; Hobbs v. State, 8 Ga. App. 53, 68 S. E. 515 ; but if not established by the state's evidence, defendant must prove it by direct evidence to the satisfaction of the jury ; State v. Cole, 2 Pennewill (Del.) 344, 45 Atl. 391; or at least so as to raise a reasonable doubt ; Johnson v. State, 57 Fla. 18, 49 South. 40. The burden of the defence of temporary insanity is on the defendant ; State v. Hand, 1 Mary. (Del.) 545, 41 Atl. 192 ; or of incapacity produced by delirium tremens at the very time of the act ; State v. Kavanaugh, 4 Pennewill (Del.) 131, 53 Atl. 335.