The comet. [volume] (Jackson, Miss.) 1877-1882, 1879-02-08

that it was assuming by the question
matters that have not been proved-and
also the ruling of the Court permitting the
District Attorney to ask witness " II he
could identity the hatchet handed him as
the one found by the dead body, and used
in the killing" was objected to because it
was immatorial, and that it was calculated
to get only the opinion of the witness as to
whether it was the same Ratchet.
CHALMERS, j.
Held
l. Without desiring to express any opin-
ion on the facts, 1t is proper to say that
there was sufficient evidence to suggest at
least probability of the truth Of her de-
fence and the demand that the jury should
be left free to determine the question I'M
embarrassed by erroneous instructions
from the Court. They were not SO left bnt
were in effect told that though they believed
the defendant probably inHane, she must
be convicted on some presumptions of law
which overthrow all probabilities OF fact.
This is not sound principle of law.
2. Three distinct theories are held by
courts and text writers of the highest
character and each may be supported by
long array of authority viz: l. The prisA
oner must prove his insanity beyond rea-
sonable doubt. I'd. He must establish it
by preponderance of evidence. Sd. He
must raise reasonable doubt of his sanity.
The last though held as yet by minority
of the adjudged cases, is gaining in favor,
is the well settled law in many of the States
and is supported by power of reasoning
which we deem convincing.
8. If in proving the crime evidence is
offered which suggests doubt of the &C.
cused sanity, the State must promptly meet
it. and this without regard to the side from
which the proof suggesting the doubt
comes, and establish the sanity of the pris-
oner to the satisfaction of the jury beyond
all reasonable doubt arising out of all the
circumstances in the case. There can be
noEcrime without mental accountability,
and it is Just as essential to show the con-
cious mind as the unlawful act
4. If the 18th instruction for defendant
was given, it was in conflict with the 18th
instruction for the State, and the giving of
conflicting instructions, is erroneous. OF
the correctness of the 9th instruction, there
can, we think, be no doubt 1t seems to
us another method of stating that there can
be no crime where there is a mental inca
pacity to distinguish between right and
wrong.
5. The exceptions taken to the acton of
the Court in its rulings on the evidence are
without merit.
Judgment reversed, and new trial
awarded.
F, A. MCSHAN, }
VS.. mo 1855.
F. E. MoSHAN.
Appellant sued out writ of Habeas Cor
pus to recover possession OF his two daugh-
ters who were in the possession of their
mothers, the defendant
The facts are that, in 1871, the above
named parties intermarried in Lee county,
Mississippi, and subsequently removed to
Arkansas. The two children in question
were the result of the marriage. Just be-
fore the birth Of the second the first being
about two and a half years of age, the pa
rents being in reduced circumstances, and
their domestic relations being unhappy,
the father deserted the mother and child
taking with him all the money the mother
had, and leaving her and the child without ,
means of support The mother returned |
with her child to Itawamba county, in this S
State, and found pleasant and happy home
With her father, who offers to support them
Turing his life, and provide for them after l
words. The relator returned to Lee county, S
became more prosperous and sues for pos s
session of the children.
The Chancellor decreed them to the ,
mother,
SIMRALL, j. q.
Held
l. II the husband by misconduct breaks p,
up the marital home, and puts the wife
under necessity to seek shelter and support
elsewhere, for heraelf and children, and she
finds it in her fathers house, the hand of
the law Ito say the least OF it) would be
cruel indeed, if at the instance of the hus- {
band it withdrew from her children as young
as these. s
2, Although the relator may have since !
his fortune, and repented of the
wrong he did his wife and child, it is not 6
low our duty to invade the happy home of :
he wife and children, and alter its condi- =
ions and relations, when we do not see that !
he condition of these little girls would be
oeneftted thereby.
3. If the children were of competent age t.
o appreciate their situation, it would have S
cen entirely competent for the Court to
ave consulted them. That has been done il
numerous instances, though the Court is o
OF bound to conform TO their incIinations D
nd preferences. -
We concur in the decree of the Chancel- PC PC
,r and affirm it. o.