Andrews, J.
The evidence establishes beyond question that the death of Ann Mason was caused either by the blows inflicted
by Richard Barber or by the fire which he set, .from which, by reason of her injuries, she was unable to escape. It is not denied that Barber was-the actor in the tragedy which resulted in the death of one human being, and ultimately in the insanity of another. These two old people having outlived the ordinary limit of life, at last were, by the act of one whom they had treated with the greatest kindness, subjected to these irreparable injuries. If the act of Barber was that of a sane man, legally responsible for his conduct, the verdict of the jury and the judgment of death were never, in any case, more fitly rendered. The question of Barber’s sanity was the sole question litigated on the trial. To this question the voluminous evidence mainly pointed, and we are called upon to determine, not the final question of Barber’s sanity or insanity, because that is, and must be, in the end, a question of fact which a jury must determine, but simply whether, upon the whole case, as it now appears to us, justice requires that a new trial should be had, and a new jury summoned to re-examine the question of Barber’s criminal responsibility. It is unnecessary to say that we have examined the evidence and proceedings on the trial with great care. The case, in many' of its aspects, is extraordinary, and, in reaching the conclusion that justice requires a new trial, we should be misunderstood if it should be inferred that there was .anything in the conduct of the trial indicating that it was conducted in any spirit of unfairness towards the defendant.
It is a striking feature of the case, which arrests the attention at the outset; that no motive for the murder, for which the defendant has been convicted, was shown, and, indeed, that no reasonable suggestion of such motive is discoverable from the evidence. It was shown 'that the Masons had between one and two hundred dollars in money in the house, in .the custody of Mrs.. Mason, and kept by her in the buttery. The money was in bills, excepting a twenty-dollar gold piece and a little silver. There is no evidence that Barber knew there was any money in the house. The inference from the testimony of Richard Mason is that he did not. know it.
When. Barber was searched, an hour or two after he left the house, no money was found upon him, except a few shillings in change. The bills which were in the Mason house may have been burned in the fire, and the gold piece (if, in fact, there was a gold piece) may have been lost among the debris, or may have been taken by some of the many persons who visited the scene of the tragedy. There is not the slightest evidence that Barber had, at any time, any of the money in his possession. The recital by Bichard Mason of the transaction at the house tends strongly to refute any suggestion that Barber searched for or took any money from the house. The twenty dollars which Mason testifies he had in his pocket were not touched. The evidence of Bichard Mason is conclusive that there was no quarrel between himself and Bather, and that nothing occurred between them to excite sudden anger on the part of Barber, or provoke an assault. There was not only an absence of any evidence of motive on the part of Barber to injure the Masons, but they were among his best friends. The defendant became acquainted with them soon after he came to this country, he then being a lad nineteen years of age. The Masons were persons in humble circumstances, advanced in years and childless. Mason was also an Englishman. Barber visited them quite frequently, and the relations between them and Barber became of the most friendly character. Little attentions and kindnesses were exchanged and Barber regarded them as his
“
best friends in America.” The character of Barber prior to this transaction justified the confidence and affection which these two old people exhibited towards him. The evidence is undisputed that he was industrious, temperate, frugal, with no bad habits, of amiable disposition and of quiet and reserved manner. This was his character in England before he came to this country, and was his character here. There is no evidence or suggestion even that prior to the transaction in question he had injured any one or had exhibited any evil tendencies.
The evidence of what occurred at the house of Mason on the night of the murder is confined to the testimony of,
Richard Mason.. Has story is given in full in the statement of the case. In. one view it describes an intentional, unprovoked and murderous assault by Barber upon Richard Mason •and Ann Mason, followed by an attempt to burn the house to conceal the evidence of his crime. In this view the story has. extraordinary features. There was apparently no preparation to commit the crime. Barber had no weapon or deadly instrument with which to accomplish his purpose when he went to the house, if he then had murder in his heart. The evidence tends to show that he picked up the first implement at his hand with which to make the assault. One of the strange features of the history is the conduct of Barber in leaving the house on the entreaty of Mason, while Mason was still alive and under the bureau, without finishing his deadly work, seemingly accepting the assurance of Mason that he could not get out, but would be compelled to lie there and burn up with his wife.
As we have said, the sole defense was insanity. The defendant’s counsel sought to establish by evidence that the defendant at the time was under the influence of epileptic furor, caused by epilepsy, and that his acts were the unconscious and uncontrollable result of epileptic mania. To sustain the defense of insanity the defendant’s counsel in the first instance sought to prove an inherited predisposition to epilepsy in the defendant. Their most important evidence on the point was the testimony of Dr. Blasson, an English surg-eon and physician of thirty-three years practice, a resident of Billingsborough, England, who had known Barber from his birth, and who had been the family physician of the Barber family for many years and had professionally attended many of the maternal relatives of Barber during attacks of epilepsy. Dr. Blasson’s testimony was corroborated by evidence of Barber’s mother and other, members of the family, and was contradicted by no one. The evidence of Dr. Blasson is fully recited in the statement which precedes the opinion. His evidence, if credited, shows that for generations epilepsy had been a marked characteristic among the maternal relatives of the defendant.
His grandfather, his grandfather’s cousin, his great uncle, two aunts, several cousins and all his brothers and sisters were, as Dr. Blasson testifies, epileptic, and were attended by him for that disease. One of the aunts became insane in consequence of the disease and is now confined in an asylum; a great uncle was drowned in an epileptic seizure; another relative committed suicide by hanging, and several of Barber’s brothers and sisters have died from the disease. In short, the medical history of the family, as related by Dr. Blasson, exhibits a record of cerebral disease resulting from epilepsy of the most marked and striking character. All the experts on both sides, who testified on the subject, unite in saying that hereditary predisposition is the great cause of epilepsy.
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Andrews, J.
The evidence establishes beyond question that the death of Ann Mason was caused either by the blows inflicted
by Richard Barber or by the fire which he set, .from which, by reason of her injuries, she was unable to escape. It is not denied that Barber was-the actor in the tragedy which resulted in the death of one human being, and ultimately in the insanity of another. These two old people having outlived the ordinary limit of life, at last were, by the act of one whom they had treated with the greatest kindness, subjected to these irreparable injuries. If the act of Barber was that of a sane man, legally responsible for his conduct, the verdict of the jury and the judgment of death were never, in any case, more fitly rendered. The question of Barber’s sanity was the sole question litigated on the trial. To this question the voluminous evidence mainly pointed, and we are called upon to determine, not the final question of Barber’s sanity or insanity, because that is, and must be, in the end, a question of fact which a jury must determine, but simply whether, upon the whole case, as it now appears to us, justice requires that a new trial should be had, and a new jury summoned to re-examine the question of Barber’s criminal responsibility. It is unnecessary to say that we have examined the evidence and proceedings on the trial with great care. The case, in many' of its aspects, is extraordinary, and, in reaching the conclusion that justice requires a new trial, we should be misunderstood if it should be inferred that there was .anything in the conduct of the trial indicating that it was conducted in any spirit of unfairness towards the defendant.
It is a striking feature of the case, which arrests the attention at the outset; that no motive for the murder, for which the defendant has been convicted, was shown, and, indeed, that no reasonable suggestion of such motive is discoverable from the evidence. It was shown 'that the Masons had between one and two hundred dollars in money in the house, in .the custody of Mrs.. Mason, and kept by her in the buttery. The money was in bills, excepting a twenty-dollar gold piece and a little silver. There is no evidence that Barber knew there was any money in the house. The inference from the testimony of Richard Mason is that he did not. know it.
When. Barber was searched, an hour or two after he left the house, no money was found upon him, except a few shillings in change. The bills which were in the Mason house may have been burned in the fire, and the gold piece (if, in fact, there was a gold piece) may have been lost among the debris, or may have been taken by some of the many persons who visited the scene of the tragedy. There is not the slightest evidence that Barber had, at any time, any of the money in his possession. The recital by Bichard Mason of the transaction at the house tends strongly to refute any suggestion that Barber searched for or took any money from the house. The twenty dollars which Mason testifies he had in his pocket were not touched. The evidence of Bichard Mason is conclusive that there was no quarrel between himself and Bather, and that nothing occurred between them to excite sudden anger on the part of Barber, or provoke an assault. There was not only an absence of any evidence of motive on the part of Barber to injure the Masons, but they were among his best friends. The defendant became acquainted with them soon after he came to this country, he then being a lad nineteen years of age. The Masons were persons in humble circumstances, advanced in years and childless. Mason was also an Englishman. Barber visited them quite frequently, and the relations between them and Barber became of the most friendly character. Little attentions and kindnesses were exchanged and Barber regarded them as his
“
best friends in America.” The character of Barber prior to this transaction justified the confidence and affection which these two old people exhibited towards him. The evidence is undisputed that he was industrious, temperate, frugal, with no bad habits, of amiable disposition and of quiet and reserved manner. This was his character in England before he came to this country, and was his character here. There is no evidence or suggestion even that prior to the transaction in question he had injured any one or had exhibited any evil tendencies.
The evidence of what occurred at the house of Mason on the night of the murder is confined to the testimony of,
Richard Mason.. Has story is given in full in the statement of the case. In. one view it describes an intentional, unprovoked and murderous assault by Barber upon Richard Mason •and Ann Mason, followed by an attempt to burn the house to conceal the evidence of his crime. In this view the story has. extraordinary features. There was apparently no preparation to commit the crime. Barber had no weapon or deadly instrument with which to accomplish his purpose when he went to the house, if he then had murder in his heart. The evidence tends to show that he picked up the first implement at his hand with which to make the assault. One of the strange features of the history is the conduct of Barber in leaving the house on the entreaty of Mason, while Mason was still alive and under the bureau, without finishing his deadly work, seemingly accepting the assurance of Mason that he could not get out, but would be compelled to lie there and burn up with his wife.
As we have said, the sole defense was insanity. The defendant’s counsel sought to establish by evidence that the defendant at the time was under the influence of epileptic furor, caused by epilepsy, and that his acts were the unconscious and uncontrollable result of epileptic mania. To sustain the defense of insanity the defendant’s counsel in the first instance sought to prove an inherited predisposition to epilepsy in the defendant. Their most important evidence on the point was the testimony of Dr. Blasson, an English surg-eon and physician of thirty-three years practice, a resident of Billingsborough, England, who had known Barber from his birth, and who had been the family physician of the Barber family for many years and had professionally attended many of the maternal relatives of Barber during attacks of epilepsy. Dr. Blasson’s testimony was corroborated by evidence of Barber’s mother and other, members of the family, and was contradicted by no one. The evidence of Dr. Blasson is fully recited in the statement which precedes the opinion. His evidence, if credited, shows that for generations epilepsy had been a marked characteristic among the maternal relatives of the defendant.
His grandfather, his grandfather’s cousin, his great uncle, two aunts, several cousins and all his brothers and sisters were, as Dr. Blasson testifies, epileptic, and were attended by him for that disease. One of the aunts became insane in consequence of the disease and is now confined in an asylum; a great uncle was drowned in an epileptic seizure; another relative committed suicide by hanging, and several of Barber’s brothers and sisters have died from the disease. In short, the medical history of the family, as related by Dr. Blasson, exhibits a record of cerebral disease resulting from epilepsy of the most marked and striking character. All the experts on both sides, who testified on the subject, unite in saying that hereditary predisposition is the great cause of epilepsy. Barber up to the age of nine years had frequent fits, accompanied by violence and delirium. Dr. Blasson, who attended him on forty or more of these occasions, declared that they were the fits of epilepsy. The remission of these attacks after that age for eighteen years, without any known recurrence up to the time of the homicide, was regarded by some of the experts examined by the prosecution as indicating that the fits which Barber had in his childhood were not of an epileptic character. It was claimed, on the part of the defendant, that during the winter of 1887-88 there were indications that the defendant suffered from nocturnal epilepsy. The Donohues, with whom he had lived that winter, testified to various circumstances — the condition of his bed, incontinence of urine, and other facts which experts testified were indications of the disease. He had a skin disease during the winter of an irritating character. He was said to he nervous and haggard. He complained of his head and in the morning looked tired, and when playing checkers, as he sometimes did, he could not hold his attention.
We have stated sufficient of the circumstances developed on the trial to show that the case is a remarkable one in many aspects, and that whatever the truth may be, the defense of insanity was one most proper to he urged, and required most
deliberate and careful consideration. It was assumed by all the medical witnesses that if Barber, when he assaulted the Masons, was in a condition of epileptic mania, he was unconscious of the nature or character of his acts. The question of motive was manifestly a most important consideration on the issue of insanity. It is only at times that epileptics are unconscious or irresponsible, that is when the disease breaks out into what is known as epileptic furor, which may come without special warning, and after a brief period pass away. The court was asked to charge the jury that if no motive had been established for the crime, it should be regarded as important on the question of epilepsy. This request was refused, except as charged. The judge, in his charge, had said to the jury : “ If there were, in fact, no motive for the atrocious murder, it does not need an expert to tell us that that is an important question in determining what was the condition of his mind. Whether there was a motive or not, I will refer to hereafter.” Referring to the subject afterwards the court stated to the jury that it “was not necessary for the People to show you that there was an adequate motive for this act.” And, again, “ It is not necessary for the People to show what his motive was, but they claim that the reason and the method, and plan and design apparent in the act. which he did, in itself indicate sanity, and indicate that there was method, and that there was motive for the act itself.” We think it would have been better if the learned judge had brought to the attention of the jury, with more distinctness, the consideration which should be given to the absence of motive as bearing upon the question of epilepsy.
On both sides experts were examined, who expressed their opinion on a hypothetical question embodying the facts claimed to have been, proved, as to the sanity or insanity of the defendant at the time of the homicide. One of the questions was framed by the ¡irosecution and one by the defendant. The prosecution thereafter framed a series of specific questions, which they propounded to the experts introduced by them, and which they were permitted to answer. We think
some of these questions went beyond the permissible scope of examination of experts. The opinion of medical experts as to the sanity or insanity of the defendant, based upon testimony in the case, assumed for the purpose of the examination to be true, was undoubtedly competent. So, in connection with their opinion, they could be permitted to state the reasons upon which it was founded.
(Lewiston S. M. Co.
v.
Androscoggin Water Power
Co., 78 Me. 274.) But inferences from facts proved are to be drawn and found by the jury, and cannot be proved as facts by the opinion of witnesses. The evidence given under the special questions encroached, we think, upon, the domain of the jur and exceeded the reasonable boundaries of expert xdence. The following questions and answers are illustrations: “ Q. What do you say as to his holding the door-knob and looking up and down the road ? A. That is evidence of consciousness. Q. Does it indicate apprehension ? A. Yes, sir; it does. Q. What does it indicatethe absence of blood on his person ? A. That he knew enough not to leave marks on his person that should identify the crime. Q. What do you say of his stating to an acquaintance whom he met, who informed him that the fire was at Waterburgh, that he thought so, too; what would that indicate to you ? A. It would indicate that he lied if he was moving away from it. Q. His hastening away from the barn, what do you say to that ? A. It would indicate that he knew he had done something he ought not to have done, and something to run away from. Q. And his not asking why he was arrested, what do you say to that? A. That he already had a knowledge of the act which he concealed. Q. If he remained watching the fire, and when it got a pretty good headway, Mason said to him, “ Why don’t you go away; I can’t get out of here; I shall lie here and perish and burn up with my wife,” after Mason assured him he could not get up, and he should then leave, would that show knowledge of what he was about and a design, a belief and intent on his part that Mason should lie there and burn up with his wife, what would that indicate ? A. It would indi
cate that he knew what he was about. Q. That he understood and believed what Mason told him? A. Certainly. Q. And that he acted upon that belief of what Mason told him ? A. Certainly. Q. What did his breaking his agreement to go to the opera-house and hastening away from the barn show? A. It showed an attempt to escape. Q. And did it show also a knowledge or consciousness of a wrongful act committed? A. Certainly. Q. Would a person who was committing an act of violence during an epileptic seizure, could he return to consciousness before completing the crime and see before him the crime he had committed, would he be liable to have remorse and flee from the deed or crime, or would he help and assist, etc ? A. As soon as he came to himself, if these were his friends, he would, of course, show remorse; if he attempted to kill them he would run away.”
It cannot be doubted that many, if not all, of these questions and answers were improper. The inferences to be drawn from the facts referred to in the questions were matters for the jury. They were within the range of ordinary judgment and experience and were not the subject of expert testimony. The evidence was not given as reasons for the opinion of experts on the main issue of sanity or insanity, but was independent proof by opinion of the effect of certain facts in evidence upon the question of guilt or innocence, and of the mental operations of the defendant. At least so it might well have been regarded by the jury, and it is needless to say that in this view it was damaging to the defendant.
On consideration of the whole case, we think a new trial would subserve the ends of justice. We express no opinion as to how the case should be finally decided.. This is not our province. The facts relied upon by the prosecution to show the adaptation of means to ends, the alleged flight across the fields, the conduct of the defendant after his arrest, his calmness of demeanor, both at the house and afterwards, are factors of importance upon the question of the defendant’s legal responsibility. It will be the duty of the jury, on a new trial,
to consider them in connection with the whole evidence, and theirs will be the final responsibility.
The judgment should be reversed and a new trial granted. All concur, except Finch, J., not voting.
Judgment reversed.