The Leon reporter. (Leon, Iowa) 1887-1930, 1904-06-02

force 10 De uSed IN rcpellIng 1t, the eX-
citement and confusion of the surround
ing circumstances must be considered,
and defendant is not held to the same
cool and deliberate judgment in estimat-
ing the danger or the choice of means
of repelling it as is possible to persons
unaffected by excitement or danger in
subsequently contempla ting the situa-
ton.
16. You are instructed that If you
find from the evidence that the cattle Of
the deceased were trespassng upon de-
PENDANTS premises, the defendant had
the legal right to take possession Of
them and distrain them, and that il
after taking possession Of them for the
purpose of destraint, the deceased
undertook to take them away from de-
PENDANT without defendants permission
and consent, the deceased in undertake
ing to take possession of said cattle
would be committing an unlawful act,
for which the laws of this state would
have given the defendant ample redress
and such unlawful act of the deceased,
II any, would in no manner Justify or
acquit the defendant in killing the do
ceased, if he did kill him; but such I'M
lawful act Of the deceased, if any, may
be considered by you as bearing upon
the degree OF the crime, if any, commit
ted by defendant, and as bearing upon
the question of provocation.
IL. The claim and defense is made
that the defendant was mentally I'M
sound and irresponsible at the time the
acts complained of were committed.
Ii you find that defendant shot and
killed w. e. Bracewell as charged, and
fhn
further find that such killing was caus-
ed by mental disease and unsoundness
which dethroned defendants reason and
Judgment with respect to that act,
which destroyed his power nationally to
comprehend the nature and conse-
quences of the act and which, over
towering his will, inevitably forced him
to it's commission, then he is not in law
guilty of any crime and your verdict
should be, not guilty.
But if you believe from all the evil
dence and circumstances in the case
that the defendant was in possession of
a rational intellect or sound mind, and
allowed his passions to escape control,
then, though passion may for the time
being have driven reason from it's seat
and usurped it, and urged the defendant
to the commission of homicide, he can
not claim for such acts the protection
of insanity and he is guilty. The prac-
tical question for you to determine from
all the evidence is whether passion on
the one hand or insanity on the other
was the ruling force and controlling
agency which led to the commission Of
the act complained of. If you believe
that the shooting was the direct result
or offspring of insanity, you should ac-
quit; but if of violent, reckless and I'M
controlled passion in a mind not dis
eased, it would not be a justification,
excuse or defense.
1t is not necessary that at all times or
for some part cular or considerable
length of time it should be shown the
defendant was insane. 1t is sufficient
to excuse him if he was insane at the
time of doing the acts complained of, if
such insanity caused said acts, but he
| would not be excused if he was able at
any particular time to control his acts
had he desired to do so, but failed to
exercise that control, even though he
may have been to some degree unsound
mentally.
You should indulge in no pref dice
against the defense Of insanity, but give
it thoughtful, thorough and dispassion-
ate consideration, because the interests
of the state and society do not require
or justify the punishment of one who
through and by insanity commits Ii mi
eide. And yet the interests of society
and the welfare of the state demand
that this defense ought not to be re-
garded as sufficient unless you believe
from the evidence that the propensity
to commit the act existed in such vio-
lence as to subjugate the intellect, con-
troll the will and render it impossible
for the defendant to do otherwise than
to yield to the insane impulse. In other
words, it should appear not only that
the mind of the accused was insane, but
also that the act for which he is indict-
ed was the direct offspring of such in
sanity. This being shown, responsible
ity is annulled, but not otherwise.
The law presumes the defendant sane
and responsible for his acts, and before
the defendant can be justified in his
plea OF insanity, he must establish it by
a preponderance of the evidence.
By preponderance Of the evidence is
not meant that the defendant is requir-
ed to prove his insanity beyond a
reasonable doubt. He is only required
to establish his insanity by the greater
weight OF evidence. If upon this ques-
ton Of insanity you find that the great
er weight of the estimony submitted
indicates the mental unsoundness of the
defendant, such finding would raise a
reasonable doubt as to the defendant
guilt and entitled him to an acquittal.
IS. Evidence has been introduced by
the ate tending to show that the gen
eral moral character of the defendant is
bad. This evide ce is proper to be con-
sidered by the jury as bearing upon and
testing the credibility of the defendant
as a witness on his own behalf and is
not to be considered for any other pur-
pose whatever.
The defendant stated on cross exani-
nation that he had heretofore been con-
victed of a felony. This fact may also
be considered by you as bearing upon
the credibility Of the defendant as a
witness on his own behalf and for no
other pur pose.
You are not bound to reject the testi-
mony given by the defendant, but you
may give it such weight and credence
as in your judgment it is entitled to re-