#### George Walker, Plaintiff in Error, v. The People of the State of New York, Defendant in error.

Upon the trial of an indictment for the abduction of a young girl, the defense was insanity. The evidence tended to show that the purpose of this abduction was to take indecent liberties with the child ; also that the prisoner had previously committed other similar offenses. The prisoner’s counsel requested the court to charge *“*that the test of crim*82inal responsibility, when the defense of insanity is interposed to an indictment, is, whether the accused had sufficient reason to know right from wrong, and *whether or not he had sufficient power of control to govern his actions.*The court charged the first part of the proposition, also that a man must have sufficient control of his mental faculties to form a criminal intent before he can be held responsible for a criminal act, but declined to charge the part italicized. *Held*no error ; that-the charge went as far as the court could go on the subject of control, under the circumstances of the case.

. The court was also requested to charge that “ where a person acts under the influence of mental disease he is not criminally accountable.” This the court declined, but charged that “ no act done by a person in a state of insanity can be punished as an offense.” *Held*no error.

A third request to charge was that “ the defendant in a criminal case is not required to prove his insanity in order to avail himself of that defense, but merely to create a reasonable doubt upon this point, whereupon the burden of proving his sanity falls upon .the people.” This request was refused, but the court, after charging in a manner not excepted to as to what constituted insanity, charged, “ If you come to the conclusion, beyond all reasonable doubt, that he committed the crime * * ***and that he was not insane, it will be your duty to- convict. If there is any reasonable doubt arising upon the evidence in the case, and upon nothing else, it will be your duty to give the prisoner the benefit of that doubt and acquit him.” *Held*no error ; that the burden of establishing beyond a reasonable doubt, as one of the elements of guilt, 'that the prisoner was not insane was, by the charge, cast upon the prosecution ; that having charged the true. rule, applicable to the whole case, the . court was not bound to subdivide it 'and charge separately as to each of the elements necessa-ry to constitute the crime.

The court read from and adopted the language of an opinion in another case, that “to establish a defense of insanity it must be clearly proved.” *Held,*that this, accompanied with and qualified by the instructions given, as quoted above, was not error; that taking the whole charge together ,it simply required substantial and clear evidence of insanity to justify an acquittal on that ground.

(Submitted January 16, 1882;

decided February 28, 1882.)

Error to the General Term of the Supreme Court, in the first judicial department, to review judgment entered upon an order made December 23, 1881, which affirmed a judgment of the Court of General Sessions, in and for the city and county of Hew York, entered upon a verdict convicting the plaintiff in error of the crime of abduction. (Reported below, 26 Hun, . 67.)

The material facts are stated in the opinion.

*83*William F. Eintzing*for plaintiff in error.

The court erred in fixing as a test of criminal responsibility, the knowledge of right and wrong; the court should also have recognized the necessity of a mental power" sufficient to apply that knowledge, and act. accordingly. (2. R. S. 692, § 2 ; Coke’s Littleton, 247a ; 1 Hale’s Pleas of the Crown, 30; *Earle Ferrer's*Case, 19 Howell’s St. Trials, 947; S. Hargrave’s St. Trials, 322; 16 Howell’s St. Trials, 695, 764; *Hadfield's Case,*27 Howell’s St. Trials, 1309; *Billingham's*Case, 5 C. & P. 169, 4 Blackst. Com. 21; 3 Institutes, 47; Ray on Insanity; Wharton & Stille’s Med. Juris.; Beck’s Med. Juris.; Dean’s Med. Juris.; Taylor’s Med. Juris.; Brown’s Med. Juris, of Insanity; *Rex*v. *Hadfield,*27 Howell’s St. Trials, 1309 ; *McNaughton's Case,*10 Clark *&*F. 200; *Rex*v. *Oxford,*9 C. *&*P. 532; *Rex*v. *Law,*2 F. & F. 836; *Rex*v. *Offord,*5 C. & P. 168; *Rex*v. *Bellingham,*1 Russell on Crimes [8th. Am. ed.], 11; *Rex*v. *Pierce,*9 C. & P. 637; *People*v. *Kleim,*1 Edm. Select Cases, 14; *Comm.*v. *Rodgers,*1 Bennett & Heard’s Lead. Cr. Cas. [2d ed.]; 7 Metc. [Mass.] 500; *Freeman*v. *The People,*4 Denio, 9; *Cole's Case,*7 Abb. Pr. [N. S.] 321; *MacFarland's Case,*8 id. 57; *People*v. *McCann,*16 N. Y. 58; *Willis*v. *The People,*32 id. 715; *Comm.*v. *Mosler,*4 Barr. 267; *Reg.*v. *Bleasdale,*2 C. *&*K. 765; *State*v. *Windsor,*5 Harrington, 512; *Scott*v. *Comm.,*4 Metc. [Ky.] 227; *Smith*v. *Comm.,*1 Duvall, 224; *Hopps*v. *State,*31 Ill. 385; *Comm.*v. *Treath,*6 Am. L. Reg. 400; *Comm.*v. *Shurlock,*Leg. Int. [Pa.], 1851, p. 33; *Comm.*v. *Smith,*Leg. Int. [Pa.], 1858, p. 33; *Font*v. *State,*4 Greene [Iowa], 500; *Bilman’s*Case, Wharton’s Am. Cr. Law, 30; *People*v. *Pine,*2 Barb. S. C. 51; *Stevens*v. *The State,*31 Ind. 485; *Smith*v. *Comm.,*1 Duvall [Ky.], 225; *Graham*v. *Comm.,*16 B. Monroe’s L. & Eq. 591; 4 Am. Law Review, 240, 245; *Flanagan*v. *People,*52 N. Y. 467.) The verdict of the jury should have been “'not guilty,” by reason of insanity, if the act of the prisoner was the offspring or product of mental diseases. *(Stevens*v. *State,*31 Ind. 485; *State*v. *Pike,*4 Am. Law Rev. 245; *Cone*v. *Haskell,*id. 24.) The court erred in refusing to charge that “ The defend*84ant in a criminal case is not required to prove his insanity in order to avail himself of that defense, but merely to create a reasonable doubt upon this point, whereupon the burden of proving his sanity falls upon the people. *(Bradley*v. *The*State, 31 Ind. 492, 515; *Comm.*v. Rogers, 7 Metc. 500; *Comm.*v. Haskell, 4 Am. Law Rev. *240; State*v. *Pike,*id.) The court erred in charging, *“*That to establish a defense on the ground of insanity it must he clearly proven that at the time of committing the act, the subject of the indictment, the party accused was laboring under such a defect of reason from diseases of the •mind, as not to know the nature and quality of the act he was doing, and if he did not know it, that he did not know he was doing wrong.” *(Flanigan*v. *The People,*52 N. Y. *467; McNaughten's Case,*10 C. & F. App. Cas. 200; *People*v. *McCann,*16 N. Y. 58; *People*v. *Schryver,*42 id. 1; *Smith*v. *Comm.,*1 Duvall, 228; *Stevens*v. *The State,*31 Ind. 491; 5 C. & P. 160.) The burden of proof rests upon the people where the defense of insanity is interposed. *(McAllister*v. *State,*17 Ala. 436; *Boswell*v. *State,*63 id. 307; *McKenzie v. State, 26*Ark. 334, 331; *People*v. *Meyers,*20 Cal. 518; *People*v. *Coffman,*24 id. 233; *People*v. *McDonell,*47 id. 134; *People*v. *Wilson,*49 id. 14; *State*v. *Hoyt,*46 Conn. 330-337; *State*v. *Danby,*1 Houst. Cr. Cas. [Del.] 175; *State*v. *Pratt,*id. 269; *State*v. *Boyce,*id. 355; *State*v. *Draper,*id. 531; *State*v. *Thomas,*id. 511; *Holsenbake*v. *State,*43 Ca. 55; *State*v. Felter, 32 Iowa, 50; *Kriel*v. *Comm.,*5 Bush [Ky.], 362; *Graham*v. *Comm., 16*B. Monr. [Ky.] 587; *Smith*v. *Comm.,*1 Duvall [Ky.], 224; *State*v. *Laurence,*57 Me. 574; *Comm.*v. *Rogers,*7 Metc. [Mass.] 500; *Comm. v. Eddy,*7 Gray [Mass.], 583; *Comm.*v. *Heath,*11 id. 303; *Bonfanti*v. *State,*2 Minn. 123; *State*v. *Gut,*13 id. 341; *Baldwin*v. *State,*12 Mo. 223; *State*v. *Huting,*21 id. 464; *State*v. *Klinger,*43 id. 437; *State*v. *Smith,*53 id. 267; *State*v. *Redemeier,*71 id. 385; *State*v. *Spencer,*1 Zabr. [N. J.] *201; Moorehead*v. *Brown,*6 Jones’ L. [N. C.] 366; *Clark v. State,*12 Ohio, 483; *Loeffner v. State,*10 Ohio St. 698; *Bend v. State,*31 id. 115; *Ortwein*v. *Comm.,*76 Penn. St. 423; *Lynch*v. *Comm.,*77 id. 205; *Meyers**85v. *Comm.,*83 id. 141; *Pennell*v. *Com.,*86 id. 268; *Sayers*v. *Comm.,*88 id. 301; *Dove*v. *State,*3 Heisk. 384; *Carter*v. State, 12 Tex. 500; *Clark*v. State, 8 Tex. Ct. of App. 350; *Boswell's Case,*20 Gratt. 860; *Fisher's Case,*23 Ill. 293; *Hopps*v. *People,*31 id. 385; *Chase*v. *People,*40 id. 352; *Polk*v. State, 19 Ind. 170; *Stevens*v. *People,*31 id. 485; *Gurting*v. State, 66 id. 94; State v. *Crawford,*11 Kans. 32; *People v. Garbutt,*17 Mich. 9; *People*v. *Finley,*38 id. 482; *Cunningham*v. *State,*56 Miss. 272; *Wright v. People,*4 Neb. 408; *State*v. *Bartlett,*43 N. H. 224; *State*v. *Jones,*50 id. 369-400.)

*John McKeon,*district attorney, for defendant in error.

Whether or not the defendant had sufficient power of control to govern his actions, is wholly immaterial, the sole test of insanity, when interposed as a defense in a criminal prosecution in this State, being, whether the defendant has knowledge of the nature and quality of the act in question, and whether it is right or wrong. *(McKaughten's Case,*10 C. & F. 200; *U. S.*v. *McGlue,*1 Curtis, 1; *Loeffner*v. *State,*10 Ohio, 598; *Klinger*v. *State,*43 Mo. 127; *Brinkley*v. *People,*58 Ga. 298; *Freeman*v. *People,*4 Denio, 28, 29; *People*v. *Pine,*2 Barb. 570-1; *People*v. *Montgomery,*13 Abb. [N. S.] 214; *Wills*v. *People,*42 N. Y. 715; *Flanagan*v. *People,*52 id. 467; *Wagner*v *People,*4 Abb. Ct. of App. 511.) Where the defense of insanity is interposed the burden of proof is upon the defendant, and he must make out that defense by preponderance of evidence. *(People*v. *McCann,*16 N. Y. 58; *People*v. *Schryer,*42 id. 9; *Flanagan*v. *People,*52 id. 467, 471; *Wagner*v. *People,*4 Abb. Ct. of App. 511; *Brotherton*v. *People,*75 N. Y. 162, 163; *Chase*v. *People,*40 Ill. 358; *Comm.*v. *Winnemore,*1 Brewst. N. P. 356; *Hopps*v. Peoples 31 Ill. 385; *Bradley*v. *State,*31 Ind. 492; *Westmoreland*v. *State,*45 Ga. 225; *Wright*v. *People,*4 Neb. 407; *People*v. *Robinson,*1 Park. 649; *People*v. *Pine,*2 Barb. 573-4; *Freeman*v. *People,*4 Denio, 28, 29; *McNaughten's Case,*10 C. *&*F. 200; *State*v. *Bradley,*43 N. H. 224; *Graham*v. *86*Comm.,*16 B. Mom. 587; *State*v. *Brinzia,*5 Ala. 241; *State*v. *Marler,*2 id. 43; *People*v. *Coffmann,*24 Cal. 230; *State*v. *McCoy,*34 Mo. 531; *U. S.*v. *McClue,*1 Curt. 1; *Newcomb*v. *State,*37 Miss. 383, 405-6; *State*v. *Coleman,*24 La. 691; *State*v. *Strauder,*11 W. Va. 745; *Boswell*v. *Comm.,*20 Gratt. 866; *State,*v. *Hardley,*46 Mo. 414; *Kriel*v. *Comm.,*5 Bush, 362; State v. *Felter,*32 Iowa, 49; State v. *MoDonnell,*47 Cal. 134; State v. *Starling,*6 Jones [N. C.], 366; *Loeffner.*v. *State,*10 Ohio, 598; *Bonfanti*v. *State,*2 Minn. 123; *Fisher*v. *People,*23 Ill. 283; *Klinger*v. *State,*43 Mo. 127; *Westmoreland*v. State, 45 Ga. 225; *Brotherton*v. *People,*75 N. Y. 163.)

Rapallo, J.

The prisoner was indicted and tried in the Court of General Sessions of the city and county of Hew York, for abducting one Katie Hennessy, a child between seven and eight years of age. The evidence tended to show that the purpose of the abduction was to take indecent liberties with her. The defense was insanity, and evidence was adduced on the part of the prisoner in support of that defense.

The only, errors alleged in the case are the refusal of the recorder to'charge certain propositions submitted by the counsel for the prisoner, and the charge of the recorder on the subject of the proof of insanity required of the prisoner. The exceptions to these rulings will be examined seriatim.'

The first request was to charge *“*that the test of criminal responsibility, -where the defense of insanity is interposed to an indictment, is, whether the accused had sufficient reason to know right from wrohg, and whether or not he had sufficient power of control to govern his actions.”

The recorder charged the first part of this proposition, but declined to charge the latter part, *“*whether or not he had sufficient power of control to govern his actions.”

The doctrine of irresponsibility for .a crime committed by a person who had sufficient mental capacity to comprehend the nature and quality of his act, and to know that it was wrong, on the ground that he had not the power tó control his actions, *87lias not met with favor in the adjudications in this State. *(Flanagan*v. *The People, 52 N.*Y. 467.) But without entering upon a discussion of the question on its general merits, we are of the opinion that in the present case it would have been clearly improper to submit to the jury any such vague test as that requested, when considered with reference to the character of the crime for which the prisoner was on trial, and the testimony which was before the jury as to his previous similar offenses. The jury, upon the evidence, might have found that the prisoner had an uncontrollable propensity to abduct young girls, or that his appetites were so depraved and overpowering that he was unable to resist them; and if they so found, the charge, as requested, would have led them to suppose that it was their duty to acquit, even though they were satisfied that he was possessed of sufficient reason to know that the act was wrong and criminal.

The court did charge that a man must have sufficient control of his mental faculties to form a criminal intent, before he can be held responsible for a criminal act. This, we think, was as far as the court could go on the subject of control, under the circumstances of this case.

The second proposition requested to be charged was, *“*where a person acts under the influence of mental disease, he is not criminally accountable.” This the recorder- declined to charge except as he intended to charge, and he did charge, in the words of the statute, that *“*no act done by a person in a state of insanity can be punished as an offense.” This was a much more accurate statement of the law than that requested, and it was not error for the recorder to give it the preference and decline to adopt the phraseology of counsel.

The third request to charge was that “ the defendant in a criminal case is not required to prove his insanity in order to avail himself of that defense, but merely to create a reasonable doubt upon this point, whereupon the burden of proving liis sanity falls upon the people.” This request was refused and an exception taken.

The recorder, in his charge, instructed the jury on the sub*88jeet of the burden of proof, as to the sanity of the prisoner, in entire accordance with the decisions of this court. After having instructed them in a manner not excepted to, as to what constituted sanity and insanity, he said to them: “ It is for you to determine those questions, they are purely questions of fact. It you come to the conclusion that the prisoner was insane at the time it is charged that he perpetrated this crime, you will find him not guilty, on the ground of insanity. If you come to the conclusion, beyond all reasonable doubt, that he committed the crime of abduction as I have defined it; if the testimony satisfies you, beyond a reasonable doubt, of his guilt, and that he was not insane, it will be your duty to convict. If there is any reasonable doubt arising on the evidence in the case, and upon nothing else, it will be your duty to give the prisoner the benefit of that dqubt and acquit him.”

The burden of establishing beyond a reasonable doubt, as one of the elements of guilt, that the prisoner was not insane, was, by this charge, cast upon the prosecution. Indeed, on examining the whole case, it appears that the sanity of the prisoner was the only controverted point, the sole defense being his insanity, and.it was the only serious question presented for the consideration of the jury.

The most recent expression of this court in respect to the burden of proof, in cases where the defense of insanity is interposed, is contained in the opinion of Danforth, J., in the recent case of *O' Connell*v. *The*People, 87 N. Y. 377 It was there said, in substance, that the guilt of the prisoner depended upon two questions, viz., whether he committed the act charged, and whether he was in such condition of mind as to be responsible; that the burden of proof, as to both, was upondhe prosecution; that the legal presumption that every man is sane was sufficient to establish his sanity until repelled by proof; that if the prisoner gave no evidence the fact stood. If he gave evidence tending to overthrow it, the prosecutor might produce answering testimony, but he must satisfy the jury upon the whole evidence that the prisoner was responsible, for the affirmative of the issue tendered by the indictment re*89mained with the prosecution to the end of the •trial. (See, also, *Brotherton*v. People, 75 N. Y. 159.)

In the case of *O’Connell*v. The People, above cited, a specific request was made, and the court refused to charge, that “ if, from the evidence in the case, a reasonable doubt arose in the minds of the jury as to the sanity or insanity of the defendant, that he was entitled to the benefit of that doubt.” This proposition was in the abstract entirely sound, and in accordance with the views expressed by this court, but the refusal to charge it was sustained here, on the ground that the same point was covered by the general charge, in which, after submitting to the jury the question of the sanity or insanity of the prisoner, with the instruction that if insane he was not responsible, the judge charged, that if they had a reasonable doubt, from the evidence, that the prisoner was guilty of the crime, they should give him the benefit of that doubt. This court held in substance.that where the judge properly submits to the jury a proposition covering the whole issue, and instructs them that they must find it beyond a reasonable doubt, he cannot be required to subdivide it and charge separately as to each of the elements necessary to constitute the crime, that it must be established beyond a reasonable doubt. In this holding, we confirmed the conclusion reached in the present case, by the presiding judge at General Term, that when the judge gives to the jury in his charge the true rule applicable to the case, when it comes to be considered on all the evidence, it is not error to refuse to submit a separate proposition, which, even though correct in-itself, is only calculated to confuse the jury by distracting their attention from the test question, which is to be determined on the whole evidence. These remarks apply especially to the case at bar, for the request to charge is by no means as accurate as that in the case of O’Connell.

It involved two propositions, first, that the defendant is not bound to prove his insanity to avail himself of that defense. This is inaccurate, for he must, beyond cavil, give proof of it, or the presumption of sanity prevails, and the request was not confined to conclusive proof or proof beyond a reasonable *90doubt. Secondly, that he is only required to create a reason- . able doubt as to his sanity. This is extremely vague and well calculated to mislead, especially as connected with the first branch of the request; it is not even confined to a doubt arising upon the evidence. But even had the request been framed accurately, our recent decision, above referred to, holds that it was not error to refuse it, where the point was fully covered by the charge as given.

The remaining exception relates to' the charge that *“*to establish a defense of insanity it must be clearly proved,” etc. The exception being to the expression “ clearly proved.” This was not the language of the recorder, but was read from an opinion which he adopted, and is a quotation from the opinion of Chief Justice Tutdal given in the celebrated *McNaghten's Case*(10 Clark *&*Fin. Appeal Cases, 200). If by this expression the jury were given to understand that the insanity must be proved beyond a reasonable doubt, it of course was at variance with the law of this State. *(People*v. McCann, 16 N. Y. 58.) But if it meant that there should be clear and substantial evidence of insanity to justify an acquittal on. that ground, it was . unobjectionable. *(People*v. *Schryver,*42 N. Y. 1.)

The adoption of the language used in the *MeNaghten's Case*that the defense of insanity should be clearly proved, having been accompanied in the present case .with the instruction, that if the testimony satisfied the jury, "beyond a reasonable doubt, of the guilt of the prisoner, and that he was not insane, it woidd be their duty to convict; but that, if there was any. reasonable doubt arising upon the evidence in the case, it would be their duty to give the prisoner the benefit of that doubt, and acquit him, the jury could not have been misled as to the burden of proof, or the degree of proof required of the prisoner to overcome the presumption of sanity, and the charge was quite as "favorable to him as he was entitled to. Whatever may have been the idea which the language of Chief Justice Tindal was intended to convey in the *McNaghierHs*Case, we think that it was so qualified in the present case, by the connection iu which .it was used, and the explanation which accompanied it, *91that taking the whole charge together, it amounted to nothing more than that there should he substantial and clear evidence of insanity to justify an acquittal on that ground, and that the defense should not be sustained on vague and shadowy testimony, or mere, speculation and conjecture. In *Brotherton*v. *The People*(75 N. Y. 162), the judge charged the jury as follows: “ The allegation of insanity is an affirmative issue, which the defendant is bound to prove, and you must- be satisfied, from the testimony introduced by him, that he was insane.” But he also charged, “ If there is a reasonable doubt, a well-founded doubt, whether the man was insane at the time he fired the pistol, you will acquit him.” This court held that taking the two paragraphs together there was no error. The opinion in that case was written by our late brother Chief Judge Church, than whom no judge approached the consideration of criminal cases in a more humane spirit, or was more careful that all the legal rights of accused persons should be properly guarded ; but the natural force and directness of his mind led him to regard the substance of what was said to the jury, rather than nice distinctions in forms of expression, and drew from him the remark that *“*the prisoner was bound to prove that he was not sane, and whether insanity is called an affirmative issue, or it is stated that the burden of proof of insanity is upon the prisoner, is not very material, if the jury are told, as they were in this case, that a reasonable doubt upon that question entitled the prisoner to an acquittal.”

We think there was- no error in the refusals to charge as requested or in the charge as given, when taken as a whole, and consequently the judgment should be affirmed.

All concur, except Tract, J., absent.

Judgment affirmed.