The daily morning journal and courier., 1907-04-11

against the defendant, and such evi- dence may be presented as will offset those allegations and establish his in- sanity at the tie of the commission of the act. The law presumes that insan- ity is the normal condition of man, and where insanity is the plea, as the condition of mind of the defendant at the time of the commission of the act, that becomes the crucial question of the jury to decide.
 If there existed in the mind of the defendant an insane illusion, 1t is not an excuse unless the illusion is of such character that if true it would re- suit in his Injury.
 Proof of partial or incipient insanity is not sufficient as an excuse. The set tied law of the state is that so long as that power to appreciate the nature and quality of the act is present, no man must commit crime if he would escape the consequences.
 If he cocks, aims and discharges a revolver, as it is alleged here, did he know when he cooked and aimed the weapon that the act was wrong, and that it would probably destroy a life, and did he know that the act was for bidden by law? That is the question which the law must have answered.
 Under the rule of evidence the story, claimed by the defendants wife to have been told by her to the defendant is admitted not as affecting the character of the deceased, but that you might dor cidor hffan+ c,1nh o ct0pu hnd on the defendants mind. In consider 1 ing her story, her credibility as a wit | ness is highly material, and everything 1 that she has said or done must be talk en into consideration. Her admission { regarding the relations existing be- tween herself and the defendant prior and subsequent to this tragedy and prior to her marriage, or any other act should be weighed in connection with her story.
 "A wide latitude was allowed on cross-examination You should give due credit to all that was developed, along with other facts. The letters, the will and the codicil which are be- fore you were not admitted under any ruling as to their competency, but by consent of counsel.
 There has been no denial entered here that death resulted from pistol- shot wounds inflicted by the defend- ant.
 "The legal presumption is that the | defendant was sane when he commit ted the act. It was not incumbent up- on the prosecution to introduce pre- liminary testimony to show that he was sane.
 "The burden of proof is upon the de- fense.
 Whoever denies sanity must prove that insanity is present. The law as- 1 sumes that all men are sane, as it as- sumes all men innocent. The burden ton, but the burden of overthrowing sanity is on the person claiming 1t. The defendant is entitled to the benefit of the doubt in this case.
 "The hypothetical questions which were answered by the experts assumed certain facts, and the answer was only | the opinion of the expert on these as- sumed facts. You are not obliged nor are you permitted to accept opinions as you would facts. In considering the testimony of medical experts you are | to consider their experience and knowl- edge, and you should consider the quail l ity of the medical testimony, and not l its quantity.
 "The so-called irresistible impulse, '' continued Justice Fitzgerald, "has no place in the law and is not an excuse, nor is every person of a disordered mind excused. While the burden of proof of insanity is on the defendant he is also entitled to every reasonable doubt on the subject, If the defendant knew the nature or the quality of hls act, or knew that the act was wrong then he committed crime. All mer differ mentally and physically, and this makes it impossible, as I said before for the court to lay down a fixed rule as showing deliberation and premed. itation.
 As to the distinction between req. sonabe doubt and a possible doubt you were thoroughly examined wher you were about to become jurors. The law does not require that the prosecu. ton shall efface every possible doubt It only requires that the prosecution shall go beyond reasonable doubt As Recorder Smythe once charged { jury, the defendant is entitled to have his guilt established by competent evi. dence and beyond reasonable doubt. I need not be established beyond al doubt, for that is an impossibillty Nothing in this world is beyond al doubt. The defendant is entitled tC every reasonable doubt, and that is all "A reasonable doubt is such doub as might arise in the mind of an intel ligent man who, if called upon to gfv, a reason for suca doubt, would not bt at loss to do so. A reasonable doub is not an imaginary thing. It is sucl doubt as arises from the evidence It is such doubt as a painstakins man might have after a full, fair ant impartial weighing of evidence. To al such doubts the defendant is entitled.
 If any of you have a reasonabl doubt that this defendant is guilty e murder in the first degree, but you hay no doubt that he is guilty of murder Il the second degree, you may find in tn second degree. And so with manslaugh
 ter In all your deliberations the de fendant is entitled to the benefit c every reasonable doubt.
 ] ''You may in this case, let me sa once more, find the defendant guilty c
 murder in the first degree, guilty C . l 1nn1,rder in thn sennnd dapree n1, nnilt