By the Court.
Nisbet, J.,
delivering the opinion.
[1.] This writ of error is founded on a refusal of the Court below to grant a new trial. The 1st and 2d grounds may be considered together. A new trial was asked by the prisoper, 1st, because the jury found a verdict contrary to the testimony, and 2d, because they found against the weight of the evidence. The first seems to assume that the evidence was all in favour of the prisoner, and needs only to be noticed so far as to say, that the record denies this very plainly. The assault was directly proven — the prisoner deliberately aiming and snapping a gun charged with powder and ball, twice, at Mr. Knight. It was also proven that he received no provocation; and the evidence under the plea of insanity was somewhat conflicting. We can not say that the jury found against the testimony, nor do we think that the presiding judge ought to have said so. The second, admits that there was some evidence againstthe prisoner, but asserts that the weight of it was in his favour. Whether this was so or not, was a question for the jury to determine ; their verdict has negatived the idea that it was. It is their duty to weigh the testimony, to reconcile conflicting evidence, and to judge of the credibility of the witnesses. Not only so, but it is the right of the parties that they shall discharge these duties. The principles which regulate the granting of new trials, upon the ground of a finding contrary to evidence, are well settled. I shall not go into them upon this occasion, for this reason, that applications for new trials, are left to the discretion of the presiding judge. Even he will not, but in a case of manifest injustice, disturb the verdict of the jury. And when that court has exercised its discretion, and refused a new trial, this Court will not interfere and control that discretion, but in cases that aTe strong and unequivocal. This is not one of that kind. The presiding judge being an eye and ear witness of the trial, cognizant of all the circumstances attending it, observing the appearance of witnesses, [323]*323their attitudes, intonations of voice, consistency or contradictions, must be infinitely better qualified to judge of the propriety of granting a new trial, than we can be who see the case only as it appears upon the record. In K. P. Boon vs. The State of Georgia, this Court say, “ It must be a very clear case of error in law, or a very naked, bald case, as to the facts, which will authorize this Court to control the discretion of the Court below, in a criminal 'cause, where the jury are made both the judges of the law and the facts.” 1 Kelly R. 618.
The new trial was asked also upon the ground of newly- '[2.] discovered testimony. The newly discovered testimony was that of Mrs.'Sims, who was called and sworn, and testified on the trial in behalf of the prisoner. She was examined in relation to the conduct and habits of the prisoner during the time that he boarded at her house, (being about four weeks,) before he was sent to jail. She was called to support the plea of insanity. The newly discovered testimony, as appears by her affidavit, relates to the prisoner’s appearance, sayings and conduct on the morning of the day when the offence was committed. The affidavit states that the prisoner in the morning, previous to the time when he snapped the gun at Knight, was at her house; was calm and rational; that his countenance appeared to have a vacant stare ; that she spoke to him about a gold piece that he had changed, and which he said he had lost; and not being able to satisfy him that he had changed it, he became furious and frantic; that he left the house, and when he returned, rushed upon her and was about striking her, when her son interfered and received the blow that was intended for her. From this recital two things are manifest:
1. That the prisoner might have had the benefit of this testimony on the trial, if any diligence had been used to get it. The witness was in court, was in communication with the prisoner’s counsel, and was sworn in his behalf. Further, the witness in her affidavit states, that the newly discovered testimony, relates to a conversation which she held with the prisoner on the morning of the day upon which the assault was committed, a part of which conversation was detailed by her when she was examined on the trial, and that she intended to state the whole, but was stopped. Counsel therefore had, while the witness was on the stand, intimation, nay, warning, of what the witness could prove, in this, that she was examined on the trial, in relation to the same conversation about which new testimony is said to be discovered. She was [324]*324stopped — if by the Court, then, if in that there was error, the prisoner had his remedy — if by the prisoner’s counsel, in that event, it' was his own wrong act, of which, he can not avail himself. To grant a new trial on the ground of newly discovered testimony, it must be shown that due diligence, was used to procure it. Here there was no diligence, and for that reason the new trial, as to this ground, was properly denied. *'
2. The new testimony was cumulative; it was to the same subject matter, to wit, the appearance, sayings and conduct of the prisoner, about which the witness had already testified; it relates to the same conversation to which her previous testimony related, and has reference to the same time. It was cumulative, and therefore the new trial was rightfully denied. Wharton Am. Crim. Law 662, 659, 660; 1 Bayley R. 263; ib. 491; 2 id. 267; 6 Pick. R. 114; 10 id. 16; 8 Johns. R. 84; 15 id. 210; 18 id. 489; Peters C. C. R. 69; 1 Sumner C. C. R. 482; 18 Eng. C. L. R. 335.
Another ground of error is, that the jury found contrary to the law. This ground is so general, that we should not have known in what it was charged to be contrary to law, but for the argument. Counsel take the position, that according to the testimony, the prisoner, if death had ensued, would have been guilty only of manslaughter, and therefore was not, according to the law of the case, guilty of an assault with intent to commit murder. We are very clear that if the prisoner had killed Knight, it would have been a case of murder. According to our penal code, “ Murder is the unlawful killing of a human being in the peace of the State, by a person of sound memory and discretion, with malice aforethought, either express or implied.” Prince 622. This definition is in substance the same with the common law definition. 3 Inst. 47, 51; 1 East. P. C. 214.
“ Manslaughter is the unlawful killing of a human creature without malice either express or implied, and without any mixture of deliberation whatever; which may be voluntary, upon a sudden heat of passion, or involuntary, in the commission of an unlawful act, or a lawful act without due caution and circumspection.” Prince 622. The assumption of the prisoner’s counsel is, that the ingredient of malice is wanting. There is no proof of express malice. “ Express malice is that deliberate intention, unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof.” Prince 622. “ An illustration of express malice, is where a deliberate [325]*325intention to kill a particular individual; is evinced, by form'er animosities, concerted plots, threats,'or by the nature of the act itself.” 2 Chitty Crim. Law, t. p. 480; 4 Bla. Com. 199. There are no external circumstances proven in this case, no previous animosities or grudges, no threats, no waylaying, no plots, which show a deliberate intention to kill Mr. Knight. But we think there was, in this killing, implied malice. “ Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing, show an abandoned and malignant heart.” Prince 622. There was in this case no provocation whatever, not a rude act, or an unkind word. Upon Knight’s first approach, the prisoner told him to go back or he would shoot him; Knight retired, and the prisoner then came out of the kitchen door, where he stood, and got over the fence, Knight following him. At the distance of twenty feet, the prisoner then taking deliberate aim snapped his gun at him, cocked it, and snapped it again at him. As to this testimony, there is no conflict, and it conclusively demonstrates, that there was not only no considerable provocation, but no provocation at all. Further, all the circumstances of the killing, show an abandoned and malignant heart: a reckless disregard of law, life and social obligation. The legal sense of the term malice, is not confined to particular animosity to the deceased, but extends to an evil design in general, a wicked and corrupt motive, an intention to do evil, the event of which is fatal. Fost. 256; 4 Bla. Com. 198, 199, 200; 1 East. Pl. Crown, 215; 2 Chitty Crim. Law, 480. Stress was placed in the argument, upon the fact that the prisoner, previous to the assault, had retired over the yard fence, and that Knight had followed him. The retiring of the prisoner, however, was not from the attack, or threatening words, or attitudes, or actions of Knight, but voluntarily, and in peace, so far as Knight was concerned. It is not at all analagous to the cases in the books where the slayer retreats from the violence of an assailant; the following by Knight was with ho felonious intent, was attended with-.no violence of any kind; he seems to have gone into the yard with a view to protect Mrs. Julian and her mother from the violence of the prisoner; and up to the time of the assault, had done and said nothing to him, .either rude or provoking. The killing, upon the assumption that the prisoner was sane, was wilful, and from that the law presumes malice, and puts the prisoner upon showing that there was none. “ Malice is implied,” says C. J. Parsons, in Selfridge’s case, "when the killing is attended with [326]*326circumstances which indicate great wickedness and depravity of disposition ; a heart devoid of social duty, and fatally bent on mischief.” “ Malice is implied,” says Mr. East, “from any deliberate act, however sudden he adds, “he who wilfully and deliberately does any act, which apparently endangers another’s life, and thereby occasions his death, shall, unless he clearly prove the contrary, be adjudged to kill him with malice prepense.” Deliberate killing, even with great provocation, is murder. The-law does not fix the time of such deliberation. “ If the defendant has time to think, and intends to kill, for a minute,” says Judge Rush of Pennsylvania, in the case of The State vs. Richard Smith, “ as well as for an hour or a day, it is a deliberate, premeditated' killing, constituting murder-.” He adds, “ To deliberate, is to reflect with a view to make a choice,and a reflection butfor a minute is a sufficient deliberation. No time is too short for a wicked man to frame in his mind, a scheme of murder, and to contrive the means to accomplish it.” See as to distinctions between murder and manslaughter, 4 Dall. 145; 2 Mason R. 91; 6 Rand. R. 721; 4 Mass. R. 391; 2 Hill S. C. R. 619; The State vs. Tookey, So. Ca. Ms. decision, Dec. 1819; 2 Chitty Crim. Law 480.
The record furnishes no evidence to rebut the presumption of malice, except what relates to the plea of insanity; it discloses no provocation, but on the contrary, the circumstances attending the killing, show, in the language of the statute, an abandoned and malignant heart. The plea of insanity set up in this case, does not affect the question we are now considering. We consider it irrespective of that plea, for the reason, that if the prisoner was not sane, he is wholly irresponsible and guiltless, not only of murder, but of manslaughter. We have no fault to find with the decision of Judge Floyd, upon this ground for a new trial, taken in the rule. [3.] The fourth and fifth grounds upon which the plaintiff in error relied in his rule for a new trial, and upon which he now relies before this Court, relate to insanity, and may be united. The Court below charged the jury as follows :
“ A person, therefore, in order to be punishable by law, or in order that his punishment by law may operate as an example to deter others from committing criminal acts under like circumstances, must have sufficient memory, intelligence, reason and will, to enable him to distinguish between right and wrong, in regard to the particular act about to be done, to know and understand that i't will be wrong, and that he will deserve punishment by committing it.
[327]*327“ In order to constitute a crime, a man must have intelligence and capacity enough to have a criminal intent and purpose; and if his reason and mental powers are either so deficient that he has no will, no conscience, or controlling mental power, or if through the overwhelming power of mental disease, his intellectual power is for the time obliterated, he is not a responsible moral agent, and is not punishable for criminal acts. If, therefore, you believe from the evidence, that at the time of committing the act, the defendant had memory and intelligence, even a glimmering of reason, sufficient to enable him to distinguish between right and wrong, in regard to the particular act about to be committed, to know and understand that it would be wrong, and that he would deserve punishment by committing it, you will find him guilty; otherwise, you will find him not guilty.”
The plaintiff in error excepts to the general proposition laid down by Judge Floyd, that if a man has sufficient memory, intelligence, reason and will, to distinguish between right and wrong, as regards the particular act about to be done, he is liable to be punished. And also to the more specific proposition, that aman who has even 'a glimmering of reason, sufficient to enable him to distinguish between right and wrong in regard to the particular act about to be committed, to know and understand that it would be wrong, and that he would deserve punishment for committing it, is liable to be punished. I do not perceive that there is much difference between the two — I do not perceive, in fact, any difference between a man’s having memory, intelligence, reason and will, enough to distinguish between right and wrong in regard to a particular act, and a glimmering of reason stifficient for the same purpose. It would certainly be wrong to hold every poor idiot, lunatic, or insane person, responsible, who has even a glimmering of reason. That proposition would be inhuman, and is unsustained by authority ; for almost all these stricken creatures have some faint glimmering of reason, but it may be very different if the glimmering light of the mind is sufficient to enable them to distinguish between the right and the wrong of the act about to be committed. For the purpose of this review, I shall consider Judge Floyd as ruling that if a man has reason sufficient to distinguish between right and wrong in relation to a particular act about to be committed, he is criminally responsible. He varies the same idea somewhat in the forms of expression used, no doubt for the purpose of being fully understood by the jury. But that is, I think, the rule which he [328]*328intended to lay down; and the question occurs, is that the true rule 1 We think, that in this case, it is.
I shall not attempt a review, at large, of the cases and learning to be found in the books, upon the subject of insanity. I shall undertake only a brief statement of the general principles which are at this day recognised, and particularly with a view to sustain the position taken in this case by the presiding judge. Any one conversant with the cases can not have failed to see, that this has been, for courts and medical men and legal commentators, a difficult and perplexing subject. Whether a man is sane or not, whether partially or totally deranged, and if only in part deranged, where accountability to the laws shall begin, and where end, are questions of great and embarrassing subtlety. The laws of the sane mind are but little understood ; much less are the laws, if indeed such phraseology is predicable of it, of the unsound mind understood. We can judge of the one, by external developments and by our own consciousness; of the other, only by external indicia. There are few men so balanced in intellect as not at some times, and upon some subjects, to approximate towards derangement. All men, almost, have some train of thought in which the mind delights to run, at a comparative abandonment of the ordinary routine of thought. Intellectual enthusiasm, not unfrequently, approaches the line of insanity. The numerous cases of mania, or delusion, which leave the mind sound in general, but as to certain things, shattered or wholly obliterated, have increased the difficulty of any specific general rule as to the responsibility of those who are generally classed as insane. A crazy, or partially deranged person, is a mystery; such a person is só, by the visitation of God. The subject of insanity,'is not responsible — humanity, reason, the law so adjudges. To punish an insane man, would be to rebuke Providence. Hence, in all definitions of murder, of which I have knowledge, the requirement is found, that the slayer must be of sound mind. Our own statutory definition, requires him to be “ a person of sound memory and discretion.” Accountability for crime, pre-supposes a criminal intent, and that requires a power of reasoning upon the character and consequences of the act; a will subject to control. For this reason it is, that a homicide, committed under the influence of incontrollable passion, is not murder. The reason is dethroned, the will is not subject to control, and in tenderness to human infirmity, he is considered as not having a malicious, murderous intent. The difficulty is to deter[329]*329mine who is “ a person of sound memory and discretion,” who is incapable of a criminal intent, who is incapable of reasoning upon the character and consequences of the act, and who is without control over his will. That is the work, that the labour. Men are, upon proof of the criminal act, presumed to be responsible, and therefore the burden of proving irresponsibility devolves upon the defendant.
One does not fail to perceive, also, in looking into this subject, that the rules now recognised as governing pleas of insanity, are different from what they were in the time of Lord Coke, and indeed, long subsequent to his day. The improvements in the science of medical jurisprudence, a more enlarged benevolence, and a clearer sense of Christian obligation, have relaxed the cruel severity of the earlier doctrines. The plea of insanity is now, as it ought to be, as much favoured as any other plea resting upon the ground of reason and justice. Courts are not now afraid to trust the- juries with the investigation of questions of insanity ; nor are all cases now, as they once were, subjected to the application of one rule, unjust because of its sweeping generality. There was a time when the insane were looked upon as victims of Divine vengeance, and therefore to be cast out of the protection of human laws, and beyoud the pale of human sympathies. Not so now. The insane hospitals of our land, founded by provision of public law and by private charity, prove that the insane are the peculiar care of the State, as well as of private benevolence.-
As late as 1723, it-was held in England, that for a man to be insane, 7ie must 7iave no more reason t7ian a brute, an infant, or wild beast.
It seems then to have been believed that for derangement to protect its subject from criminal responsibility, it must be total in its character; either manifesting itself in wild, ungovernable, and incongruous actions, or in stupid and passive imbecility. It seems not to have been then understood that men might ordinarily act sensibly, and yet be insane; and reason acutely or learnedly upon most subjects, whilst they were upon some one or more totally deranged. This inhuman rule cut off from the benefits of this plea, all the partially insane, and admitted to its privileges only the raving maniac or the drivelling idiot.
The rule, which I apprehend is now more universal than any other, is in substance the one given in charge by Judge Floyd to the jury. ■ Mr. Chitty says, “ in criminal cases the question is, [330]*330whether at the time the act was committed, the prisoner was incapable of judging between right and wrong, and did not then know that the act was an offence against the law of God and nature.” Chitty Med. Jurisp. 345.
Mr. Slielford thus states the rule : “If a person, liable to partial insanity which only relates to particular subjects or notions, upon which he talks and acts like a madman, still has as much reason as enables him to distinguish between right and wrong, he will be liable to that punishment which the law attaches to his crime.” Shelford on Lunacy, 458; Lord Ferrers’ case, 10 Howell State Trials 947; Arnold’s case, 16 id. 764; Parker’s case, 1 Collins on Lunacy 477; Bellingham’s case, ib. 636; Offord’s case, 5 Car. & Pay. 168; Rogers’ case, Abner Rogers’ Trial, p. 275. In the case of Rogers, the Supreme Judicial Court of Massachusetts lay down the rule in the following words: “ A person, therefore, in order to be punishable by law, or in order that his punishment by law may operate as an example to deter others from committing criminal acts under like circumstances, must have sufficient memory, intelligence, reason and will, to enable him to distinguish between right and wrong in regard to the particular act about to be done ; to know and understand that it will be wrong, and that he will deserve punishment by committing it.” This rule does not require total insanity, like the one previously referred to — derangement as to all subjects and in all actions — but if the prisoner is perfectly sane as to all other things, and wants, as to the act about to be committed, reason enough to distinguish between the right and wrong of that act — if he does not know and understand that that act is wrong, and that he will deserve punishment for committing it, he is irresponsible. So also on the other hand, according to this rule, the person may be deranged as to other things, yet if he has sufficient reason to distinguish as to the right and wrong of the particular act about to be committed — if he knows and understands that for committing that act he will be liable tobe punished, he is a responsible agent and ought to be convicted. Such is the rule adopted by the Court below ; it is sustained by great weight of authority, and, as I shall show, is the only rule which was applicable to the facts of this case. But even this rule has undergone some modification. There are some exceptions to it; one, certainly, whieh was first established in the leading case of The King vs. Hadsfield. The great speech of Mr. Erskine in defence of Hadsfield, has shed new light upon the law of insanity. So con-[331]*331elusive was that celebrated argument, tbat it is now looked upon by the profession as authority. In the records of forensic eloquence, ancient and modern, nothing is to be found surpassing Erskine’s defence of Hadsfield, for condensation, perspicuity and strength of reasoning, as well as for beauty of illustration, and purity of style. In that case, he assumed the position, that a man might have reason sufficient to distinguish between the right and the wrong of the act about to be committed, and yet be irresponsible ; that the mind might be cognizant of the distinction between right and wrong, as regards the act, and yet by reason of some delusion, overmastering the will, there might be no criminal intent. To apply this proposition, it was admitted by Mr. Erskine, that the act itself must be connected with the peculiar delusion under which the prisoner labours. This doctrine can be best understood by illustration, and it is illustrated by Hadsfíeld’s case. He had been a soldier in the British armies, and had received several severe wounds, one of which, on the head, it was thought, had injured the brain, and caused the derangement under which he suffered. He imagined that he had constant intercourse with the Almighty, that the world was coming to a conclusion, and like our blessed Saviour, he was to sacrifice himself for its salvation. Unwilling to commit suicide, it was argued by Mr. Erskine, he sought to do an act which would forfeit his life to the law, and thus bring about the sacrifice, which, in his morbid imagination, he held necessary to the salvation of the world. Under the influence of this delusion, he shot at the king, in the theatre. Now, in this case, it was not pretended that Hadsfield was a raving madman, or an imbecile idiot; nor was it contended that he was incapable of knowing that shooting a pistol at the king, would, or might kill him, or that if he should kill the king, that he would deserve death for the act; (for that really was what he desired,) or that he was incapable of distinguishing between the right and the wrong of the act; but it was contended, that the delusion under which he laboured had so shattered his intellect, as to control his will, and impel him resistlessly to the commission of the act, and therefore there was no criminal motive, no wicked or mischievous intent, and if these were wanting, he was Irresponsible. To use the language of Mr. Erskine, “Reason is not driven from her seat, but distraction sits down upon it, along with her, holds her trembling upon it, and frightens her from her propriety.” Hadsfield was acquitted ; and since that day, the exception which his case established has been [332]*332recognised. See Ersldne’s speech, in appendix to Cooper’s Medical Jurisprudence; 29 Howell State Tr. 1281.
Thus far with safety we may assert, that certain principles have been established; yet it is true that these rules do not govern all cases. It is conceded- by the courts in England, practically if not in terms, that no rules can be so specific as to embrace the infinite variety of forms in which insanity, or derangement, may show itself; and that each case must depend very much upon the circumstances, facts and developments which attend it. Thus, Lord Hale says, “It is very difficult to define the invisible line that divides perfect and partial insanity. But it must rest upon circumstances, duly tobe weighed and considered by the judge and jury, lest on the one side there be a kind of inhumanity towards the defect of human nature, or on the other, too great indulgence be given to great crimes.” So Taylor declares, “ There are no certain legal or medical rules whereby homicidal mania may be detected. Each case must be determined by the circumstances which attend it.” Taylor Med. Jurisp. 649; see also 5 Car. & Pay. 168; 9 id. 525. In the opinion which C. J. Denman gave before the House of Lords, in 1843, although adhering to the old rules, he says, “ It is difficult to lay down any abstract rule on the subject, applicable to all cases, and each case must be decided, in great measure, upon the facts and circumstances peculiar to it, under the discretion of the court.”
In the case at this bar, the evidence shows no particular delusion to control the will, “ sitting upon reason’s seat and holding her trembling, and frightening her from her propriety.” It does not come within the exception to the rule laid down by Judge Floyd, which was established in Hadsfield’s case. This case is embraced within that rule, and we think the Court below correctly gave that rule in charge to the jury. If there was partial insanity in this case, about which we exjtress no opinion, it was the effect of melancholy, growing out of disappointed love. There was no proof of raving madness, nor of peculiar mania. The prisoner had addressed Mrs. Julian, and been rejected; afterwards he talked occasionally incoherently, looked vacant in the face, sat up late at night, and wrote some silly letters, and all attended with a habit of intemperance. At the time he committed the assault, and previously, he was violent, rude towards Mrs. Julian and her mother, and indecent in his conversation. He seems to have been on that day the very person to whom Mr. Erskine denies the protection of insanity, one “who exhibits only violent passions and malignant [333]*333resentments, acting upon real circumstances, wlio is impelled to evil from no morbid delusion, but who proceeds upon the ordinary-perceptions of the mind.”
Let the judgment of the Court below be affirmed.