Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-06-24
ACaUIrrAL OF cor. B.H. PAYNE.
The Charge OF Judge Smith 10 the
LurR-TIlair Knrdfna

!
able scquittal and discharge of Col. Payne
The closing speech on the side of the de-
tense By Col. Jordan Stokes, commenced
on Friday, bat continued to Monday on &C
count Of that gentleman's illness, was a
mastery effort, full of sound logical rea-
son, coupled with language that could
move hearts of stone to tears of pity. He
was followed by Gov. Neill S. Brown, who
closed the argument for the prosecution.
Gov. Brown as a forensic orator, pro-
elaimer Of the law, a statesman and a gen.
tlemsn, is too well known throughout the
entire land for us to attempt any
encomiums upon his name His speech
was decidedly one of the crOwning laurels
in his garland of success.
Perhaps il. Bonld poi. be out of place to
| give brief resume of the case as given
by the witnesses during the long trial:
10 July, 1865, Colonel B. II. Payne shot
and killed Captain NJ. s. Allen, for the
alleged ofense of having at various times
| had Illicit intercourse with the formers
! wife. Both men stood well in the COM
| munity, and until within a short time of
the fatal ARRAY referred TO had been on
| terms Of friendship. Some time previous,
however, Mrs. Payne had fled bill in the
Chancery Court praying for divorce on
the ground of ill-treatment. On the oath
day of May, 1865, a divorce was granted
Mrs. p. She was Colonel Payne's second
wife, he having previously married a
Kentucky lady, from whom he procured
a divorce. r-
As the killing was done in daylight and
on one of the most public streets, il was
witnessed by numerous persons, and, as a
consequence, was easy Of proof Both
parties were armed, as was evidenced By the
fact that pistol was found lying by the
side of Allen after he had fallen. II is
thought BY some that Allen fred once at
Colonel Payne, but the testimony is some
what conflicting on this point. Colonel
Payne's first shot missed Allen and took
effect in the thigh Of a man who happened
to be standing near by. -as aaeaaE
A strange idea on the part of COL
Payne was that he was the Sheriff Of the
Almighty" whose duty it was 10 execute
His orders; that it was the decree of
Providence that Allen should die, and that
he was the instrument by which that de-
cree was to be enforced. When remon-
strated with by bis friends on the rashness
Of his course, he would cite them to
passages in the Old Testament, where adul-
terers and fornicators were put to death,
and insisted that such was the will Of God,
and that he was the instrument in the
hands Of God to kill Allen. And on this
plea portion of the defense rested.
The argument was concluded at eleven
o'clock, and Judge Smith charged the jury
as follows:
GENTLEMEN OF THE JURY-The de-
PENDANT, b. III. Payne, is indicted in this
case for murder in the first degree, in kill
ing NJ. S. Allen, deceased. To the indict-
ment the defendant pleads mot guilty."
and under this general rule, he attempts,
by proof, to establish the defense of insan-
ity. The Code of this State, (Sec. 459)
defines murder to be:
"If any person Of sound mind and dis
erection, unlawfully kill any reasonable crea-
ture in being, and under the peace of the
State, with malice aforethought, either ex-
press or implied, such person shall be
guilty of murder"
To be "of sound mind and discretion"
is a necessary constituent, not only to muir
der, but to every other indictable offense.
In other words, person accused, having
arrived at the age of discretion, must be
sane at the time of the commission of the
oflense before he can be made responsible
to the law.
Insanity in our country is becoming a
very common plea for offenses committed
under the most aggravated circumstances,
when no available defense can be devised
by the ingenuity of able and learned conn
sci to screen the party accused from the
punishment of the law. The plea Of in
sanity in this peculiar class of cases is not
less frequent in proportion to their num-
Der than the plea of abb in cases Of larce-
ny. The jury, should, therefore, examine
into the truth Of such plea with great
caution and circumspectioD, but if they are
satisfied that it is well founded, they should
acqut the accused as readily as though it
were upon the plea of selEdefense.
Over one hundred years ago in England
a man 10 be held insane must have no more
reason than brute an infant or a wild
beast. 1T that time the privilege of the
plea Of insanity was only extended to ma
MACS or idiots, while persons afflicted with
insanity from lunacy, partial arrangement,
monomania and the like, were held to
strict criminal accountability. The science
Of medical Jurisprudence commenced in
vestigations into this subject and it became
apparent that the lunatic during his frenzy
and the partially deranged man within the
range of his insanity, were as much enti-
tied to the benefits of the plea of insanity
as the mailman or idiot. The insane we're
once regarded as the victims of Divine ven
ka yaula Of hnn
sympathies. They are now a cherished
class, for whose ire tment and recovery
asylums are established at public and
private expense. These receptacles for the
insane afford ample opportunities for scien-
tific research, and consequently new lights
are thrown upon the public mind and re-
fected in the medical Jurisprudence Of the
country. In enlarging the areas of the
plea OF insanity we have arrived at the
dusky regions where the light Of sane re-
sponsibility and the darkness of insane ir-
responsibility commingIe, and are only dis
eerned and annalized by the discriminating
eye Of scientific research.
The subject of insanity, in connection
with its criminal responsibility, has chal-
lenged the attention and caused much
fruitiess labor Of learned and scientific
authors, 10 ascertain some certain test TO
determine the existence and degree of In
sanity necessary in that connection. After
a thorough examination into the authori-
ties upon this subject 1 find no better
solution of the question than that insanity
which is excused from criminal response
hility is, when the mind at the time the act
is done, from some disturbing cause, has
become 20 disorganized in its functions
that it is incapable of Distinguishing be-
tween right and wrong, or to comprehend
the relations Of other persons, the nature
Of the act committed and its criminal
character as against the law. 10 81.
This test, though generally good, is not
applicable in all cases. 1t is commended in
this case under consideration, that the ac-
cuse1 was Iaboring under a delusion in be-
lieving the killing of Allen was ordered
by the Almighty, and that be was deputed
TO execute the order, which lie could not
resist. II the accused acted under this
delusive but sincere belief that what he
did was the command Of God, which super
sedes all human laws, il would be exeusa-
bic. This delusion being to kill desig-