By the Court. —
Lumpkin, J.,
delivering the opinion.
To avoid being tedious, I was strongly inclined to pass in silence all the minor points in this case. They were not dwelt upon by the able counsel in the argument. On account of the importance of the case, however, I concluded that every assignment of error had best be noticed. I shall dispatch them with as much brevity as possible.
[462]*462When the bill of exceptions was presented to Judge Bull Tor his signature, he made in his own handwriting, several -corrections of the facts as therein stated. To these additions counsel for the.plaintiff in error object; and it becomes necessary, therefore, to dispose of this preliminary point before proceeding further.
After verdict, a rule nisi was moved for a new trial. The motion was ordered to be entered upon the minutes. Upon Tearing the application, it was refused. It is now insisted lhat the rule nisi, by being placed upon the minutes, became a record, importing absolute verity, and that it is not competent for the presiding Judg'e to alter or modify the statement '•of the facts as set forth in the rule nisi, when he comes to ^certify subsequently to the bill of exceptions.
Is this position tenable? The rule nisi was, upon the hearing, denied; perhaps partly because the statements in it were not true and consistent with what transpired on the trial. At any rate, this is a sufficient reason for refusing such an application. The only effect of placing the motion upon the minutes was, to show that such a motion had been made at that ierra of the Court, and upon the grounds therein stated. That could not be controverted. But it did not concede that the facts therein stated were true.
1. It is complained that the Court erred in refusing to allow the witness, Daniel S. Printup, to state in evidence the following facts: That a short time after the homicide was committed lie visited prisoner, and, for the purpose of testing his sanity, -among other things, informed the prisoner that - it might Te very important in his defence, to know from whom he procured the pistol with which he shot deceased, for the twofold purpose of proving by the person from whom he procured it, his condition of mind at the time; and also., to show that the pistol was not the property of the prisoner; and it could not be ascertained from any other person from whom it was procured; and that he said nothing to the prisoner but what showed that it would be to his interest to disclose the fact, if he knew it: when the prisoner, replied, that he had no recollection, whatever, of having a pistol, nor any person from whom he could, or did, procure it; and had no recollection of shooting, or even seeing the deceased.
And also, in refusing to allow said witness to state the means adopted by B. H. Hill to test the sanity of the pris[463]*463oner at the time of committing the act, before he was employed to defend prisoner, and in refusing to allow the counsel tosíate before the Court what facts he did propose to prove on. this subject.
To this first ground of alleged error in the bill of exceptions, the judge appends this note: “The counsel only offered to prove a conversation with the prisoner, b.y himself, some three months after the homicide.”
Let us look at this ground for a moment, apart from the qualifying statement added by the judge:
If the prisoner were sane at the interview between Cok Printup and himself, and he is deserving of the reputation, which he has always sustained, of being a young man of more than ordinary talents, it would have occurred to a much duller intellect, in the twinkling of an eye, to have feigned entire ignorance and forgetfulness of the whole transaction, as much more available to his defence than any information he could communicate upon the points, to which his attention was directed.
What tests were applied by Mr. Hill, the powerful and indefatigable champion of the accused, we are not informed. We know that Mr. Hill does not profess to be an expert; and "if he- did, we are not aware that the law recognizes any such mode as the one pursued in this case for testing the sanity o£ culprits. It is not the conduct or declarations of the party, at the time of the act, which are sought to be proven as a part of the res gestee, but matters transpiring subsequently. In the-hands of honorable men — and the character of those concerned in this matter are above suspicion — a precedent like this, might not be so mischievous. It is a practice, however, so- ' liable to abuse, that we think it safer to discourage so- dangerous an innovation.
We were glad that no point was made, in the argument,, upon the refusal of the Court to allow counsel to state before the Court, and, of course, in the hearing of the jury, what facts he did propose to prove as to the matter we have been, discussing.
2. The second assignment of error is, in the Court’s refusing-to allow prisoner to prove that, owing to the diseased condition of prisoner’s mind, the family and friends about Rome, had long refused to allow him to have deadly weapons.
To which the Court adds: “I have no recollection of any-[464]*464offer to prove any control, or attempt to control, the defendant in carrying weapons, or, any refusal to permit him to carry them. The witness did testify that the family had endeavored to prevent prisoner from carrying a pistol.”
As the presiding judge refuses to certify that the facts stated in this ground are true, it is needless to review it. It is a very immaterial matter, at best. For what prudent family would not have dreaded to see deadly weapons in the hands, or about the person, of William A. Choice — one who, while in his cups, as all the proof demonstrates, was so dangerous, both to friend and foe?
3. The third complaint is, in allowing the State to prove, in rebuttal, by Luther J. Glenn, the difficulty between prisoner and deceased, the night before the homicide, as evidence of express malice, and in allowing the evidence of Thomas Gannon and Samuel Wallace to prove, the same point.
The State having proved the homicide, closed, as the law would imply malice from the killing. To rebut this presumption, the plea of insanity was interposed, and a large amount of evidencé adduced to support it. An insane person is not supposed to act from malice. Does it not weaken the force and effect of the prisoner’s defence, to show express malice?
Who would not more readily believe that the prisoner was insane, had he shot a friend or an indifferent person, as he frequently threatened to do, but, as usual, failed or forebore, instead of one against whom he manifestly harbored a spirit of revenge for a supposed insult or injury? A drunken man rarely, if ever, shoots or stabs another, unless he cherishes some resentment toward him. It is quite otherwise with the insane. A drunken man reasons from correct data; whereas, the insane draw right conclusions from false data.
In this view of the testimony, it was strictly in rebuttal.
But this question has been repeatedly decided by this Court; that is, that the introduction of testimony, whether cumulative or in rebuttal, or for any other purpose, is entirely within the discretion of the Circuit Courts. We said, in one case, that in no case could we consent to reverse the Circuit Judge, for letting in testimony which was relevant, at any stage of the case. Bryan vs. Walker, 20 Ga. Rep. 480; Lumpkin vs. Williams, 19 Ga. Rep. 569; Walker vs. Walker, 14 Ga. Rep. 242; Bird vs. The State, Id. 43.
In this last ca,se; the Court says: “The State relied upon [465]*465the facts first proven, as making out a clear case of malice — ■ the malice ingredient being implied, as it clearly was reasonably to be implied, from all the circumstances of the killing. The prisoner then put in evidence, facts which went to some extent in rebutting the presumption of malice. The State then asked leave to strengthen its case, by proving express malice; and it being granted, the prisoner excepted.” “I confess,” says the learned judge who wrote out the opinion, “my inability to see upon what ground. Surely it is not necessary to discuss this point.”
4. The next assignment is, that the Court erred in allowing Luther J. Glenn and J. A. Hayden to give their opinions as to the sanity or insanity of the prisoner; and in allowing them to give their statements, that “the prisoner was drinking,” when such statements were made as conclusions, and not as facts.
The judge subjoins a note to this exception, to this effect: “I heard no objection to this testimony at the- time it- was given. The opinions of witnesses, other than experts, as to the question of the sanity or insanity of the defendant, was first introduced by defendant’s counsel, and at their instance; and after objection made by the State’s counsel, was admitted by the Court, with the distinct avowal, that as the question was somewhat unsettled, if the defendant’s counsel insisted on it, the evidence would be admitted, with the condition, that the rule should work alike in favor of both sides; and the defendant’s counsel expressly accepted the condition.”
Perhaps it would be better to dismiss this point, -without a word of comment. Unless the memory of the judge is greatly at fault, this ground should never have been incorporated in this bill of exceptions. When parties stipulate expressly with each other and with the Court, that a certain course shall be pursued in the management of a cause, that agreement should be considered binding, more especially when the record shows, as it does most abundantly in this case, that the defendant has reaped the -full benefit of the rule of evidence thus agreed to. Still, that it may not be said that any injustice has happened or fallen to the accused for want of recollection in the presiding judge, I propose to examine this fourth ground to some extent.
It has been the settled doctrine of this Court, from its organization, that the opinions of witnesses, other than experts, [466]*466are admissible as to matters of opinion, especially as it respects sanity or insanity, provided such opinions b.e accompanied by the facts upon which they were founded. Potts and others vs. House, 6 Ga. Rep. 324; Walker vs. Walker, 14 Ga. Rep. 242; Bryan vs. Walton, 20 Ga. Rep. 480; Goodwyn vs. Goodwyn, Id. 600. Our books are full of precedents upon this point.
As for myself, I would rely as implicitly upon the opinion of practical men, who form their belief from their observation of the appearance, conduct and conversation of a person, as I would upon the opinions of physicians, who' testify from facts proven by others, or the opinions even of the keepers of insane hospitals.
But the question in all such cases is, not which is the most reliable evidence, but the inquiry is, Shall the witnesses be restricted, in their testimony, to a simple statement of' facts coming within their knowledge, leaving the jury to draw an inference of sanity or insanity, or may the judgment of the witnesses, founded on opportunities of personal observation, be also laid before the jury, to assist them in forming a correct conclusion? One who has seen and conversed with an insane person, and observed his countenance and behawior, has an impression made upon his mind which is incommunicable. This Court is committed to the rule, that the jury, in such case, is entitled to the benefit of this impression.
It may be said that Col. Glenn’s opportunity of observing and judging of the capacity of Choice was too limited. But it has been .truly remarked, that so different are the powers and habits of observation in different persons, that no general rule can b.e laid down as to> what shall be deemed a sufficient opportunity of observation, other than, in fact, it has enabled the observer to form a belief or judgment thereon.
Col. Glenn had known prisoner for several years, though not intimately; had met him within the last three days before his arrest by Webb; learned from him that he was about going to New York, having engaged to travel for a house in that city; always considered him sane, and a man of more than ordinary intelligence.
Before dismissing, finally, this fourth exception, upon which I am fully conscious of having occupied too much time already, I would suggest, that it does not fairly represent the testimony of Glenn and Hayden. Their testimony, when [467]*467taken altogether, is wholly unexceptionable. Glenn, for instance, says “prisoner, from Ms appearance, had been drinking;” and Hayden, upon his cross-examination, swore, that, “although he did not see Choice drinking, yet he judged, from his manner and appearance, that he had been drinking; had seen him frequently in that condition before.”
By reading the testimony, it will be seen that expressions similar to that excepted to, abounds on every page of it. The witness, Gregory, says: “Saw prisoner a short time before he left Rome for Atlanta; had been drinking several days; does not know that he was drinking; zms acting like a man who had been drinking.” Again, by the same: “thought, at the time he left Rome, the exciting cause of prisoner’s insanity was liquor.” Echols testified: “Prisoner appeared to be drinking; witness supposed him to be drunk.” - Bartlett, sworn: “Did seem like a drunken man.”
After such expressions as these, selected almost at random from the answers of the prisoner’s witnesses, it would seem rather captious to object to the statements of Glenn and Hayden, that prisoner “appeared to be drinking.” Such expressions, both in ordinary life and in the Courts, convey to the mind, with sufficient certainty, the condition of a person, so as to enable one to pronounce a decision thereon, with reasonable assurance of its truth. Really, no other rule is practicable. If the witness must be confined to a simple narration of facts, how the person leered or grinned, how he winked his eyes or squinted, how he wagged his head, etc., all of which drunken men do, you shut out, not only the ordinary, but the best mode of obtaining truth.
We reiterate, then, what we have said from the first- — -that, legally and philosophically considered, there is no- merit in this objection. And in the case before us, what benefit would it be to the cause of the accused to exclude this truth? Did not Choice himself state to D. H. Branan, when sober and sane, that he “was drinking that night; that Webb knew that he was, and ought not to have treated him so- ” Why, I ask should Mr. Webb know it, any more than Glenn and Hayden, except from his conduct and appearance? But all the proof shows that such was his condition, the night before the homicide was committed.
5. In the next place, it is complained, that when the State had closed its rebutting testimony, the defendant re-intro[468]*468duced Dr. H. W. Brown and Dr. W. E. AYestmoreland, to prove that the additional facts, proven in the rebutting testimony, did not change their opinions of the insanity of the prisoner at the time of the killing. Each witness stated that he did hear some of the witnesses in rebuttal; when the defendant moved that these facts be read to them from the evidence as taken down, which the Court would not allow to be done.
To this assignment of error the Court adds: “This motion was made as to Dr. AYestmoreland, who stated that he was present while the witnesses were being examined, but did not hear all their testimony. I had, at the request of defendant’s counsel, permitted portions of the testimony to- be read over in the hearing of the medical witnesses, as a foundation for their further examination; and refused to allow it any further, stating that counsel mig'ht state the facts hypothetically, and ask the witnesses’ opinion on them.”
AYe understand the law to be this: Medical men are permitted to give their opinion as to' the sane or insane state of a person’s mind, not on their own observations only, but on the case itself, as proved by other witnesses on the trial. And while it is improper to ask an expert what is his opinion upon the case on trial, he may be asked his opinion upon a similar case hypothetically .stated. And this the Court expressly offered to permit the defendant’s counsel to do. AVhat more could be asked? The judge was not bound to read, or suffer to be read, the testimony as taken down. He had already allowed this indulgence, at the request of the counsel; still, it was a matter of favor, and not of right.
I shall, for the present, pretermit the sixth, seventh, eighth, ninth and tenth grounds of error, and consider them together hereafter, in connection with the fifteenth and sixteenth assignments.
6. The next error which I shall discuss, is the eleventh ground in _ the motion for a new trial: because the Court charged the jury, that they should not find the prisoner guilty of any grade of homicide below murder, and that he was guilty of murder, or not guilty at all.
This ground is not correctly stated, in the motion for a new trial, but differs in a material point from the charge as given to the jury; and this discrepancy illustrates the propriety of the view expressed in the beginning of this opinion upon the [469]*469preliminary question. Judge Bull would have been justified in refusing the motion for a new trial upon this ground, because it does not state correctly his charge given. Instead of saying to the jury, by way of direction, that they should not find the prisoner guilty of any grade of homicide below murder, and that he: was guilty of murder, or not guilty at all, the charge was this: “There are several grades of homicide recognized by the law, involving different degrees of punishment: such as murder, voluntary and involuntary manslaughter, and justifiable homicide. The defendant in this case is indicted for murder, and, in the opinion of the Court, there can be no intermediate verdict between that of guilty of murder, and that of not guilty; and it is, therefore, unnecessary to charge you on the minor grades of homicide.”
In the one case, his charge is in the form of direction; in the other, it is the expression of m opinion merely, and, for that reason, declining to instruct the jury as to the minor grades of homicide, but at the same time, leaving the jury untrammelled by his judicial fiat.
And we concur fully in opinion with the presiding judge, that the killing was murder, or excusable on account of the insanity of the accused. If Wm. A. Choice was sufficiently rational to be criminally responsible for his acts, the killing of Calvin Webb was, in the eye of the law, murder, without provocation, and without one mitigating circumstance: if insane, he was entitled to a verdict of 'acquittal; and there can be no intermediate ground. And for the Court to have charged the jury as to manslaughter, would have been foreign from the case made by the pleadings and the proof. No such defence was set up for the accused; no such request was made of the Court. In Boyd against the State, 17 Ga. Rep. 194, this Court held, that it was not error to refuse or omit to give in charge to the jury, portions of the Penal Code which have no application to the issue submitted upon the pleadings and proof. And the Court, in that case, say: “We ask what had the law of manslaughter to do with this case?” What a mockery and farce, for the presiding judge to have instructed the jury as to involuntary manslaughter! and yet, he is charged with “manifest error,” in omitting to add this! He would have been guilty of manifest folly, if he had. Had there been any evidence, in the case before us, upon which the jury might have mitigated the offense from [470]*470murder to a lower grade of homicide, it would have been different. There was not a scintilla of proof to that effect. Without the shadow of excuse, Choice, with deliberate aim, shoots down an unoffending citizen, in the peace of the State. If the law is administered, his life must atone for it, if he be subject to punishment; if he be not, it is fit and proper that he go free altogether, as would the infant and the idiot.
7. It is alleged as error in the Court, that it refused to allow the defendant to prove by Printup, Hooper and others the family and neighborhood reputation of prisoner as injured permanently in his mind, by reason of the injury he had received. No authority is produced to justify the proof of a particular fact by general reputation — a fact, too, in which the public were not concerned. We know of_no rule which would allow the introduction of this kind of hearsay testimony. In Wright against Tatham, 1 Ad. and Al. 3, 8, the question was much discussed, whether letters addressed to a person whose sanity was in issue, were admissible to prove that he was treated as insane1 by the writers of the letters; and after undergoing several investigations before the Court of Kings Bench and Exchequer Chamber, it was finally decided by a large majority of the House of Lords, that such letters were inadmissible, unless connected by proof with some act of the person implicated, in regard to the letters themselves, or their contents.
8. The sixth error alleged in the motion for a new trial is, because the judge failed to include in his charge to the jury, the law on all material facts proven in the evidence, and insisted on in the argument of counsel; and especially in failing to charge the jury whether the prisoner was or was not responsible for crime, if by reason of the injury to his brain, or otherzmse (mark that expression) ! he was afflicted with the disease called oinomania, and by reason of this- disease, was irresistibly impelled, by a zjjill not his ozsmz, to drink; and' after being so impelled, did drink, and thus became insane from drink, and while thus insane, he committed homicide. The Court also erred in not charging- the jury, that if they believed the prisoner had suffered by injury, or otherzmse, (mark that again) ! a pathological or organic change in the brain, which produced the disease of oinomania 1, and by this disease was irresistibly impelled to drink liquor, and from the liquor thus drank became insane, and while thus insane, killed deceased, he was not guilty of murder. And
[471]*471Seventhly, Because the Court erred in charging the jury, that if prisoner labored under a disease of the brain, which did not render him insane, but notwithstanding the disease, knew right from wrong when sober, and then drank liquor, which produced madness or insanity, and killed deceased, he was not guilty of murder.
Eig'hthly, Because the Court erred in refusing to charge the jury, in language or substance, as requested by defendant’s counsel, in writing, as follows: “If the jury believe that prisoner was insane when he left Rome and came to Atlanta, and continued insane until he killed deceased, the fact that he drank liquor in the meantime can not render him liable, but he must be acquitted of murder.
Ninthly, Because the Court erred in charging the jury, that insanity produced proximately by drunkenness is no excuse for crime.
Tenthly, Because'the Court erred in charging the jury, that insanity was an excuse, unless such insanity was produced by liquor.
Eifteenthly, Because the Court erred in submitting to the jury the question of drunkenness, as explanatory of his condition at the time of the homicide; and that the defendant could not protect himself from the responsibility of one crime, when committed during* insanity produced by another crime voluntarily assumed. And
Sixteenthly, Because the charge of the Court, as a whole, and in each part, was error, in that it submitted to the jury questions not made by the issues and the facts, and did not submit to the jury the questions made by the issues and the facts.
Now, what is substantially the response of Judge Bull to all this? “I will not, gentlemen of the jury, confuse you or myself, by attempting to notice all these learned distinctions. The simple rule laid down by the law is, that if a man has capacity and reason sufficient to enable him to distinguish between right and wrong, as to the particular act in question: if he has knowledge and consciousness that the act he is doing is wrong, and will deserve punishment, he is, in the eye of the law, of sound mind and memory, and consequently, the subject of punishment. Eor the Code declares, that a person shall be considered of sound mind who is not an idiot, a lunatic, or affected by insanity; or who [472]*472hath arrived at the age of fourteen years, or before that age, if such person knew the distinction between' good and evil.
“But, though it is the general rule, that insanity is an excuse, yet, there is an exception to this rule, and that is, when the crime is committed by a party in a fit of intoxication, though the party may be as effectually bereft of his reason by drunkenness as by insanity produced by any other cause. For drunkenness shall not be an excuse for.any crime or misdemeanor, unless such drunkenness was occasioned by the fraud, artifice or contrivance of another. Nor does it make any difference, that a man by constitutional infirmity, or by accidental injury to the head or brain, is more liable to be maddened by liquor than another man. If he has legal memory and discretion when sober, and voluntarily deprives himself of reason, he is responsible for his acts in that condition. But if a man is insane when sober, the fact that he increased the insanity, by the superadded excitement of liquor, makes no difference. An insane person is irresponsible, whether drunk or sober.”
I pause to remark, how fully does this concluding proposition meet the 8th ground of alleged error in the motion for a new trial, to wit: That if the jury believed that Choice was insane when he left Rome and came to Atlanta, and until he killed deceased, then, the fact that he drank liquor in the meantime can not render him liable, but he must be acquitted of murder. Certainly, responds the Judge; for an insane man is irresponsible, whether drunk or sober!
But to proceed with the charge — “These are the rules for determining the question of insanity, and the degree and nature of irresponsibilty to the law. The law presumes every man of sound mind till the contrary appears, and the burden of proof is on the defendant, that, at the time of the commission of the act, he was not of sound mind. And it ought to be made to appear to a reasonable certainty, to your reasonable satisfaction, that, at the time of the commission of the act, the party did not know the nature and quality of the act, or, if he did, did not know that the act was wrong; and it devolves upon you to decide whether the defendant has, by proof, rebutted this legal presumption of sanity. If, after mature deliberation, you are satisfied, beyond a doubt, that the prisoner is guilty, you will find so; if not, you will find him not guilty.”
[473]*473Would that I could transcribe this admirable charge entire. For, in our judgment, it submits to the jury, full and fairly, the law upon the only questions made by the issues and the facts in this case. t
Whether any one is born with an irresistible desire to drink or whether such thirst may be the result of accidental injury done to the brain, is a theory not yet satisfactorily established. For myself, I . capitally doubt whether it ever can b.e. And if it were, how far this crazy desire for liquor would ■excuse from crime, it is not for me to say. That this controlling thirst for liquor may be acquired by the force of habit, until it becomes a 'sort of second nature, in common language, I entertain no doubt. Whether even a long course of indulgence will produce a pathological or organic change in the brain, I venture no .opinion. Upon this proposition, however,'I plant myself immovably; and'from it, nothing can dislodge me but an Act of the Legislature, namely: that neither moral nor legal responsibility can be avoided in this way. This is a new principle sought to be ingrafted upon criminal jurisprudence. It is neither more nor less than this, that a want of will and conscience to do right, will constitute an excuse for the commission of crime; and that, too, where this deficiency in will and conscience is the result of a long and persevering course of wrong-doing. If this doctrine be true — -I speak it with all seriousness — the Devil is the most irresponsible being in the universe. For, from ins inveterate hostility to the Author of all good, no other creature has less power than Satan to do right. The burglar and the pirate may indulge in robbing and murder, until it is as hard for an Ethiopian to change his skin, as for them to cease to do evil; but the inability of Satan to control his will, to do right, is far beyond theirs; and yet, our faith assures us that the fate of Satan is unalterably and eternally fixed in the prison-house of God’s enemies. The fact is, responsibility depends upon the possession of will — not the power over it. Nor does the most desperate, drunkard lose the power to control his will, but he loses the desire to control it. No matter how deep his degradation, the drunkard uses his will whenever he takes his cup. It is for the pleasure of the relief of the draught, that he takes it. His intellect, his appetite, and his will, all work rationally, if not wisely, In his guilty indulgence. And were you to exonerate the ine[474]*474briate from responsibility, you would do violence both to his consciousness and to his conscience; for he not only feels the self-prompted use of every rational power involved in acountability, but he feels, also, precisely what this new philosophy denies — his solemn and actual wrongdoing, in the very act of indulgence. Converse seriously with the greatest drunkard this side of actual insanity — just compose him, so as to' reach his clear, constant experience, and he will confess that he realizes the guilt, and therefore the responsibility of his conduct. A creature made responsible by God, never loses his responsibility, save by some sort of insanity. There have alwaj^s existed amongst men a variety of cases, wherein the will of the transgressor is universally admitted to have little or no power to dictate a return to virtue. But mankind have never, in any age of the world, exonerated the party from responsibility, except where they were considered to have lost rectitude of intellect by direct mental alienation.
Mr. M. N. Bartlett testified, that prisoner, after one of his sprees, would swear that he would quit drinking. And he stated to Mr, Wilkes, that vicious associations would lead young men to drink; and he thought there was, no security when a young man took to his cups. Here was both consciousness and conscience. He did not seek to shield himself from responsibility, because he had lost the power to control his will, any more than David did from the crime, of “blood-guiltiness;” because, overpowered by his lust, he had caused the life of Uriah to be sacrificed, in order that he might possess himself of his beautiful wife.
On the trial of Kleim, before Judge Edmonds, of Spiritual Rapping notoriety, ip 1845, we find the first clear legal recognition of this moral insanity doctrine — a doctrine which destroys all responsibility to human and Divine law; and one originating, as I verily believe, in an utter misconception of man’s moral and physical nature; an offshoot from that Bohon Upas of Humanism, which has so pervaded and poisoned the Northern mind of this country, and which, I fear, will cause the glorious sun of our Union to- sink soon in the sea of fratricidal blood!
And this is the doctrine which is intended to be covered by the term, "or otherwise,” twice repeated in the 6th ground of the motion for a new trial; and to which attention was directed by the words in parenthesis, in copying that ground. [475]*475Had the Court been requested, in writing,' to give charges upon this doctrine favorable to the prisoner, he ought to have declined. For, in the judgment of this Court, no such principle has been recognized in crimnal law, whatever may be the opinion of medical writers and others upon the subject.
When Choice killed Webb, he was sober, or drunk, or insane. If he was sober, or the homicide was committed in a mere fit of drunkenness, which is no excuse for crime, in either of these events, the offence was confessedly murder. But his defence is, that he was insane. It, then, becomes important, to inquire, What was the degree of insanity under which he labored? For the law, acting upon the assumption, perhaps, that all men are more or less insane, and that it is a question of degree only, has established a .standard or test by which Courts are to be governed in the trial of criminal cases.
Judge Bull charged the jury, that the rule was this: That “if a man has capacity and reason sufficient to enable him to distinguish right and wrong, as to the particular act in question : if he has knowledge and consciousness, that the act he is doing is wrong, and will deserve punishment, he is in the eye of the law, of sound mind and memory,” and therefore criminally responsible for his acts.
Did he state the rule correctly? This must be decided by authority — to which, I must say, very little reference has been made in the argument — and not by the speculations of Ray and Winslow, Bucknill and Tuke, and other medical writers, however ingenious they may be.
And it is worthy of notice, that a less degree of capacity is required in crimnal cases than in civil contracts. It may be an anomaly, still, this difference was distinctly maintained in Bellingham’s case, who' was tried for the murder of the Hon. Spencer Perceval, in 1812, and was convicted by Lord Frskine, on the trial of Hadfield for shooting at the King in 1800. Indeed, the amount of capacity which would make one responsible for criminal conduct, would stop far short of binding him upon a civil contract.
Lord Hale, in his Pleas of the Crown, p. 30, says: “There is a partial insanity, and a total insanity. Some persons that have a competent reason, in respect to some subjects, are yet under a peculiar dementia in respect to some particular discourses, subjects or applications; or else it is partial in re[476]*476spect to degrees; and this is the condition of every man, especially melancholy persons, who, for the most part, discover their defect in excessive fears and griefs, and yet, are not wholly destitute of the use of reason; and this partial insanity seems not to excuse them in committing any offence, for it’s matter capital; for doubtless, most persons that are felons of themselves and others, are under a degree of partial insanity when they commit these offences. It is very difficult to define the invisible line that divides perfect and partial insanity; but it must rest upon circumstances, duly to be weighed and considered by the judge and jury, lest on the one side there be a kind of inhumanity towards the defects of human nature, or on the other, too great an indulgence given to great crimes. Such a person, as laboring under melancholy distempers, hath yet, ordinarily, as great understanding as, ordinarily, a child of fourteen years hath, is such a person as may be guilty of treason or felony.”
Arnold was tried in 1728 (8 Hargrave's State Trials, 322), for shooting at Lord Onslow. In this case, Mr. Justice Tracy laid down the law to be, “that it 'is not any kind of frantic humor, or something unaccountable in a man’s actions, that points him out to be such a madman, as is exempted from p-unishment: it must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant — than a brute or a wild beast.”
The trial of Hadfield took place in the King’s Bench, before Lord Kenyon, in 1800, and is fully reported in 27 Howell’s State Trials, 1281. Some of the grounds occupied by Lord Erskine, and in which the Court acquiesced, were, substantially :
That it is unnecessary that reason should be entirely subverted or driven from her seat, but that it is sufficient if distraction sits down upon it, along with her, holds her trembling hand upon it, and frightens her from her propriety ;
That there is a difference between civil and criminal responsibility; that a man affected by insanity is responsible for his criminal acts, where he is not for his civil;
That a total deprivation of memory and understanding is not requisite to constitute insanity.
In Bellingham’s case, to which I have already alluded, and which is reported in 1 Collinson on Lunacy, 650, tried in 1812, Lord Mansfield charged the jury, that “the single [477]*477question for them to determine was, whether, when he committed the offenc'e charged upon him, he had sufficient understanding to distinguish good from evil, right from wrong; and that murder was a crime, not only against the law of God, but against the law of his country.” The defendant was convicted and executed, notwithstanding he labored under many insane delusions, as the facts in the case show. He determined to assassinate the Premier, that he might thus secure an opportunity of bringing his imaginary grievances before the country, and obtaining a triumph over the attorney-general. And the test applied in this case, by Lord Mansfield, of the power of distinguishing right from wrong, has ever since been adopted as the only one, to mark- the line between sanity and insanity, responsibilty and irresponsibility.
Mr. Justice LeBlanc reiterated the test prescribed by Lord Mansfield, in King vs. Bowler. (I Collinson on Lunacy, 673.) Lord Lyndhurst did the same thing in the late case of the King vs. Oxford. (5 Carrington and Payne, 168.) And’in the still more recent case of Green Smith (see statement of the case in Taylor, 513), occurring in 1837, Mr. Justice Parke told the jury, that, as regards the effect of insanity or responsibility for crime, “it is merely necessary that the party shontld have sufficient knowledge and reason to discrimnate between right and wrong.”
With one other citation, I shall conclude this branch of the discussion.
In- 1843, took place the trial of McNaughton, for killing Drummond, which excited through England a great degree of interest. Lord Chief Justice Tindal, in this case, instructed the jury, that, before convicting the prisoner, they must be satisfied that, when committing the criminal act, he had that competent use of his understanding, as that he was doing a wicked and wrong thing; that he was sensible it was a violation of the law of God and man.
This trial occasioned the submitting of certain questions, by the House of Lords, to fifteen judges (that being the number, instead of twelve, as formerly), with a view of eliciting their opinions in regard to criminal responsibility. Those' questions and answers were designed to settle the law of England on this subject.
Question 1: What is the law respecting alleged crimes, [478]*478committed by persons afflipted with insane delusions, with respect to one or more particular subjects or persons; as, for instance, when, at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with the view, and under the influence, of some insane delusion, of redressing or avenging some supposed grievance or injury, or of producing some supposed public benefit ?
Answer: The opinion of the judges was, that, notwithstanding the party committed a wrong act, while laboring under the idea that he was redressing a supposed grievance or injury, or under the impression of obtaining some public or private benefit, he was liable to punishment.
Question 2: What are the proper questions to be submitted to the jury, when a person alleged to be affected with insane delusions, respecting one or more particular subjects or persons, is charged with the commission of a crime — murder, for example’ — and insanity is set up as a defence?
Answer: Before a plea of insanity should be allowed, undoubted evidence ought to- be adduced, that the accused was of diseased mind, and that at the time he committed the act, he was not conscious of right and wrong. Every person was supposed to know what the law was, and therefore, nothing could justify a wrong act, except it was clearly proved, that the party did not know right from wrong.
Question 3: If a person under an insane delusion, as to ex•isting facts, commits an offence, in consequence thereof, is he hereby excused ?
Answer: If the delusion were only partial, the party accused was equally liable with a person of sane mind. If the accused killed another in self-defence, he would be entitled to an acquittal; but if the crime mere committed for any supposed injury, he mould be liable to the punishment awarded by the lazos to his crime.
The charge of the Court, then, tested by a full review of the English cases, from Lord Hale to the present time, and with which all the best considered American cases agree, is 'fully sustained. And Humanitarians should deliberate maturely, before they lend their aid to break down a rule-, which has received the sanction and approbation of the wise and the good for centuries. One other point, and we are done. Was the verdict of the jury contrary to the evidence?
[479]*4799. Under the Act of i853-’54, it is not only the privilege, but made the imperative duty of this Court, tó express an opinion upon the testimony in this case, because several of the grounds in the motion for a new trial are, that the verdict was contrary to, and decidedly against the weight of the evidence. I have carefully examined the evidence again, and again, and speaking as it were from the jury-box, rather than the bench, I will state succinctly the conclusions at which I have arrived: The proof has utterly failed to establish that, apart from liquor, the accident of 1850 has inflicted any permanent injury upon the brain of the accused.
During the eight years which intervened between the accident of 1850, and the homicide, where was Wm. A. Choice, and what was his manner of life? He was no recluse, but, from his education, social position, and employments, he mingled much in society. He had been a clerk at Milledgeville; and Dr. Gordon, in his testimony, states as a reason why he noticed him while there, was, that he had often heard him spoken of as a man of a high order of talents, and that his prospects were bright for making a star comedian. Having heard such reports often, and also having seen his name favorably spoken of by the Press, he was induced to examine him critically. There were, perhaps, few men, of his age, more generally known.
Where are all his acquaintances — the cloud of witnesses that might have been brought forward to testify to his insanity? Not to distinct facts, these might have been forgotten — but who would state that they had known him for years, that they had repeatedly conversed with him, and heard others converse with him, that apart from the influence of liquor, and when entirely sober, they had noticed in these conversations, that he was incoherent and silly; that, when wholly free from the influence of' stimulants, he was wild, irrational, and crazy. Some few, it is frue, have spoken, but where are the five hundred who keep back?
On the contrary, you are met at every step in the evidence with such expressions as the following: “Think prisoner was drunk at the time of the difficulty in the barroom,” “Has known Choice intimately for several years, and considers him a man of promise and talents, but subject to eccentricities — never seen him'when he considered him insane— witness thinks him, when drinking, the most dangerous man [480]*480he ever saw.” “Has never seen him, only when under the influence of liquor, insane.” “Mr. Choice is a very violent man when drinking.” “When prisoner threatened to kill witness was three or four years ago. He had been drinking at the time — when under the influence of liquor he is a very violent man.”
The proof of insanity, apart from liquor, in this case, is too meagre to raise a reasonable doub.t as to the capacity of the accused to commit crime. Who can not count from one to twenty men, within the circle of their acquaintance, who- never suffered any injury upon the head, or elsewhere, and whose rationality, except when drinking, was never questioned, concerning whom more proof could be adduced to convict them of insanity, than the record in this case furnishes, to prove the insanity of Choice?
It may be, that, owing to the accident of 1850, the defendant was not only more easily affected by liquor, but, also, that he had less power to control his appetite for drink. Still this, if true, would not excuse him. A man may have partial or general insanity, and that, too, from blows upon the head, yet if he drink, and bring on temporary fits of drunkenness, and, while under the influence of spirits, takes life, he is responsible. “There are men,” says Mr. Justice Story, “soldiers who have been severely wounded in the head especially, who well know that excess makes them mad; but if such persons wilfully deprive themselves of reason, they ought not to be excused for one crime, by the voluntary perpetration of another.” — United States vs. Drew. 5 Mason’s U. S. Rep. 28.
It is insisted, particularly, that the finding was against the medical testimony in this case; without repeating it, I would state, generally, that the strength of this evidence is grealy overstated in the argument, as the brief of it will show. As it respects this species of testimony generally, the doctrine is this: It is competent testimony; and where the experience, honesty and impartiality of the witnesses are undeniable, as in this case, the testimony is entitled to great weight, and consideration. Not that it is so authoritative, that the jury are bound to be governed by it — it is inr tended to aid and assist the jury in coming to correct conclusions in the case.
With something short of a hundred more opinions to write [481]*481out during the recess, to say nothing of numerous other pressing engagements, we have bestowed upon this case all the time and consideration at our command. And what is the case?
Choice comes down from Rome to Atlanta. He engages in a drunken debauch, as has been the hab.it and manner of his life. Webb, the deceased, a constable, serves bail process upon him for ten dollars — Choice is greatly incensed, and such was the sense of injury which he felt, that he spoke complainingly of Webb’s treatment to Branan, when he was brought up from Milledgeville the April afterwards. Mr. Glenn, who happened to be present, interposed his kind offices, and agreeing to pay the debt, thé parties separated, while Choice professed to acquiesce in the suggestion of Mr. Glenn, that the officer had done nothing more than his duty. It is clear, that he was still writhing under the indignity, as he felt it to b.e, that had been offered him. He said to Thos. Gannon, “what do you suppose that damned bailiff done? He arrested me for ten dollars, and would not take my word for the amount;” and after soliciting a knife, or a pistol, he said he would cut the bailiff’s heart or Dr. Dowsing’s — the creditor’s — heart. Rising next morning from the carouse of the overnight, he commenced drinking again, and coming up with Webb — who was walking between the Trout House and the Atlanta Hotel toward the depot — he fires a pistol at him twice, and thus takes his life. The only thing said by deceased, was, “Don’t shoot;” and the only words uttered by Choice, were, “Damned if I don’t kill you anyhow.”' When Webb staggered and fell, Choice started off, saying, “You will take, that,” or, “Damn you, take that.” >
In his interview with Mr. Wilkes, in the callaboose, Choice ascribed his situation to drink, which made him a fool and a madman; but made no1 allusion to any permanent injury to his brain in 1850. Choice understood himself much better than the intelligent witnesses who testified, and this whole record demonstrates, to my mind, that he was right. *
Unless his offence can be excused, or mitigated, by the plea and proof of drunkenness, the verdict of the jury was fully justified by the facts. The prisoner has had a fair trial. The law, in the judgment of this Court, has been correctly administered, and when we have said this, our duty is discharged.
[482]*482JUDGMENT.
Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be affirmed.