The Montgomery advertiser., 1904-07-16
PORTER V. THE STATE.

Indictment for Murder. Appeal from
 the Circuit Court of Russell County.
 1. Insanity as a defense to murder; admissibility of evidence as to de- fendant's conduct when he was drink ing.-On a trial under an indictment for murder where, in addition to the plea of not guilty, the defendant in terposed the statutory plea of mot guilty by reason of insanity" on the cross examination of one of defen- dant's witnesses, by wfom 1t was at- tempted to show a state of facts from which 1t might be inferred that the defendant was insane at the time of the killing. and who had testified that he seen the defendant when he was under the influence of whiskey and that he appeared to have been drink ing a short time before the killing. 1t is competent for the State to ask such witness if he noticed any difference in defendants conduct when he was sober and when he was drinking"
 2. Same; admissibility of evidence. In such a case, where witness tes- tified that short time before the killing he moved the defendants wife from where she was living with the defendant. to another place. the furth- CT statement of the witness. in answer to a question propounded by the de- fendant, that he so moved the de- fendant's wife because she was afraid of the defendant because he was crazy" is mere heresay evidence and inadmissible.
 3. Homicide; insanity; competency of non-expert witness, as to defend- ants sanity.-On a trial under an in- dictment for murder. where the de- fendant pleads mot guilty by reason of insanity" a witness for the State who testified to facts showing that he has known the defendant for num- Der of years and has associated with him continuously, having had conver- sations with him and having occasion to observe his conduct, Is competent to testify as to his opinion as to the sanity of the defendant.
 Same: competency of expert tes- timony-In such a case a physician who has practiced for a number of years and has treated insane patients ana as the county physician carefully examined the defendant while in jail afte. the commission of the homicide ana had talked with him on several occasions, Is competent to give. his opinion as to the defendants sanity.
 Q Insanity as a defense to murder; charge of court to jury.-On trial under indictment for murder, where the defendant pleads not guilty and the statutory plea of mot guilty by reason of insanity" and there Is evi- dence introduced pro and con as to the defendants sanity a charge requested by the defendant is misleading and properly refused which instructs the jury that "an unsound mind cannot form a criminal intent, and as crime includes both act and intent, an indis- pensable ingredient is wanting when the mind of the perpetrator is diseas- ed to that degree which Is by law pro- nounced insanity"
 6. Same: same.-1n such case, a charge is erroneous and properly re- fused which instructs the jury that If the jury believe from all the evi- dence that the defendant was insane at the time of the alleged crime, and that said alleged crime was the product or offspring oslely of said mental dis ease, then they should find the de- fendant not guilty"
 T. Same; same; reasonable doubt In such a case, a charge is erroneous anu properly refused which instructs the jury that if they upon considering all the testimony, have a reasonable doubt of defendants guilt. arising out of any part of the evidence, they should fini him not guilty"
 S. Same; same.-In such a case, a charge Is erroneous, as misplacing the burden of proof, and properly refused, which instructs the jury that Tn order to sustain the defense of insanity, it is not necessary that the insanity of the accused be established by a pre- ponderance of evidence; but if from all the evidence the jury entertain a reasonable doubt as to- the sanity of the accused, they should find him not guilty under the plea of insanity"
 g. Same; same.-In such a case, a charge is misleading and properly re- fused which instructs the jury that If any individual juror, after consid- ering all the evidence in the case is satisfied that the defendant was in sane at the time he committed the homicide. the jury cannot convict the defendant"
 10. Same; same.-In such a case a charge is misleading and properly re- fused which instructs the jury that after a consideration of all the evil dence in the case. if they believe that at the time of the homicide the de- fC Cndant was insane. even though it hal been caused or superinduced by eXt essive drunkenness, then the de- fenGant would not be responsible for his acts and should be acquitted un- dc his plea of insanity"
 II. Charge in criminal case; when