The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1904-07-10

for murder. where one Of the issues
involved 10 whether the defendant was
insane at the time Of the homicide, and
there was evidence tending to show
that the defendant had been under the
influence OF intoxicants for several
months prior to the homicide, and at
the time Of the killing was suffering
with delirium tremens, 1t is not COM
petent on the cross -examination of a
physician as an expert witness. to ask
him whether in his opinion a man suf-
fering with delfrium tremens could
choose between right and wrong.
(Tyscr, ara pcwdell,. ]. j., dissent
ing.)
e. Same; same, remarks of trial
uS-e.-Where. in such a case, upon
the court sustaining an objection to
question propounded in the cross-ex-
animation of a physician as an expert
witness, IL a man with delirium tre-
mems would know and could choose be-
tween right and wrong, 1t is error for
the court to state in the presence and
hearing of the jury that the objection
as sustained, because the delirium
tremens. Of itself, would not excuse
the homicide. even IL the defendant
could not choose between right and
wrong"
20. Trial and its incidents: argu-
ment of attorney to 5ury.-On a trial
under an Indictment for murder, where
one of the issues involved is whether
the defendant was insane at the time
of the killing. and there is great con-
fiict in the testimony. the solicitor for
the State does not transcend the
bounds of legitimate argument, II in
his closing remarks to the jury he
says: IF he had been insane, as they
say, why did they not send him to an
asylum" and us there any evidence
before you that any one had COM
planned Of his insanity?"
"a. Homicide: pleas of mot guilty"
and mot guilty by reason of insanity"
burden of proof.--On a trial under an
indictment for murder, where the de-
PENDANT interposes the plea of mot
guilty" and the statutory plea Of
not guilty by reason of insanity" the
burden of proof as to the first plea is
upon the State to satisfy the jury be-
yond a reasonable doubt of the guilt
OF the defendant: but as to the second
plea. the burden of proof Is upon the
defendant to establish the plea of mot
guilty by reason of insanity" to the
reasonable satisfaction of the jury. by
preponderance OF the evidence; and
a reasonable doubt Is not sufficient to
acquit the defendant under this plea
rs. Homicide; pleas OF mot guilty"
and mot guilty by reason of insanity"
charge Of court to jury.-On a trial
under an indictment for murder, where
the defendant interposes his plea of
mot guilty" and the statutory plea of
mot guilty by reason of insanity"
charges requested by the State or by
the defendant, unless correct as to
both the Issues involved. should be
limited to the issue as to which they
are appropriate; and II charges re-
quested have tendency to mislead or
to confuse the jury as to which of the
issues they refer. when not applicable
to both, should be refused.
rs. Same; same, general affirmative
charge.-On a trial under an indict-
ment for murder, where the defendant
interposes the plea of mot guilty" ana
the statutory plea of mot guilty by
reason of insanity" and as to the issue
involved under the plea of not guilty
there is no dispute as to any material
part of the evidence and under all the
evidence the jury could not properly
have rendered verdict for the defen-
dant under said plea, II there was not
error in refusing the charge requested
by the defendant under the plea of not
guilty 1t was error without injury,
provided said charge was not applica-
BILE or appropriate under the statutory
plea
Reversed ard remanded.
Opinion by Tyson, J.