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Opinion of the Court.

based upon the common experience of mankind, that every man is sane, was sufficient, the court in effect said, to authorize a verdict of guilty, although the jury might entertain a reasonable doubt upon the evidence, whether the accused, by reason of his mental condition, was criminally responsible for the killing in question. In other words, if the evidence was in equilibrio as to the accused being sane, that is, capable of comprehending the nature and effect of his acts, he was to be treated just as he would be if there were no defence of insanity or if there were an entire absence of proof that he was insane.

This exposition of criminal law is not without support by adjudications in England and in this country. In Regina v. Stokes, 3 Car. & K. 185, 188, a case of murder, Baron Rolfe said: "If the prisoner seeks to excuse himself upon the plea of insanity, it is for him to make it clear that he was insane at the time of committing the offence charged. The onus rests on him; and the jury must be satisfied that he actually was insane. If the matter is left in doubt, it will be their duty to convict him; for every man must be presumed to be responsible for his acts until the contrary is clearly shown." The same judge, in Regina v. Layton, 4 Cox C. C. 149, 155, which was also a case of murder and the defence insanity, after observing that in cases of that description it was a cardinal rule "that the burden of proving innocence rested on the party accused," said that the question for the jury was "not whether the person was of sound mind, but whether he had made out to their satisfaction that he was not of sound mind."

But the most deliberate and careful statement of the doctrine in the English courts is to be found in McNaghten's case, 10 Cl. & Fin. 200, 203, 210, decided in 1843. The accused having been found not guilty, on the ground of insanity, his trial became the subject of discussion in the House of Lords, and much was said about insane delusions and partial insanity, as giving or not giving immunity for acts which, being committed by sane persons, were punishable criminally. The judges were summoned to give their opinion on that question,

Opinion of the Court.

although there was no case pending before the House. Han sard's Parliamentary Debates, vol. 67, 3d series, 714 to 743. Among the questions propounded to the judges were these: "What are the proper questions to be submitted to the jury, when a person alleged to be afflicted with insane delusions respecting one or more particular subjects or persons is charged with the commission of a crime (murder, for example), and insanity is set up as a defence? In what terms ought the question to be left to the jury, as to the person's state of mind at the time when the act was committed?" Mr. Justice Maule delivered a separate opinion, in which he expressed great difficulty in answering the questions put to the judges, because they did not appear to arise out of, and were not propounded with reference to, a particular case, or for a particular purpose, which might explain or limit the generality of these terms, and also, because he had heard no argument, at the bar or elsewhere, on the subject referred to in the questions. He expressed fear that any answers made would embarrass the administration of justice in criminal cases. He, nevertheless, said that "to render a person irresponsible for crime on account of unsoundness of mind, the unsoundness should, according to law as it has long been understood and held, be such as rendered him incapable of knowing right from wrong;" and that the judge, in the particular case on trial, should employ such terms in his instructions as, in his discretion, would be proper to assist the jury in coming to a right conclusion as to the guilt of the accused. Lord Chief Justice Tindal, speaking for himself and the other judges, said, in response to the questions propounded, that the jurors ought to be told in all cases where insanity is set up as a defence that "every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; an 1 that to establish a defence on the ground of insanity it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong."

Opinion of the Court.

In Commonwealth v. Rogers, 7 Met. (Mass.) 500, 504, 506, (1844) it was said by Chief Justice Shaw, in his charge to the jury, that "the ordinary presumption is, that a person is of sound mind, until the contrary appears; and in order to shield one from criminal responsibility, the presumption must be rebutted by proof of the contrary, satisfactory to the jury. Such proof may arise, either out of the evidence offered by the prosecutor to establish the case against the accused, or from distinct evidence offered on his part; in either case it must be sufficient to establish the fact of insanity; otherwise the presumption will stand." The jury, after being in consultation for several hours, came into court and asked whether they must be satisfied beyond a doubt of the insanity of the prisoner to entitle him to an acquittal. The court responded that if the preponderance of the evidence was in favor of the insanity of the prisoner, the jury would be authorized to find him insane. A verdict was returned of not guilty, by reason of insanity. In Commonwealth v. York, 9 Met. (Mass.) (1845) 93, 116, the charge was murder, and the defence provocation or mutual combat, making the offence, at most, only manslaughter. The court held that the guilt of malicious homicide was established beyond reasonable doubt, by proof, beyond reasonable doubt, of the fact of voluntary killing, without excuse or justification apparent upon the evidence introduced in behalf of the prosecution; that, in such case, the proof must preponderate in favor of the fact of sudden and mutual combat, in order to justify a finding in favor of the prisoner in respect to the fact, it not being sufficient to raise a doubt, even though it be a reasonable doubt, of the fact of extenuation. In that case Mr. Justice Wilde dissented in an able opinion, holding that "the burden of proof, in every criminal case, is on the Commonwealth to prove all the material allegations in the indictment; and if, on the whole evidence, the jury have a reasonable doubt whether the defendant is guilty of the crime charged, they are bound to acquit him." p. 134. In Commonwealth v. Eddy, 7 Gray, (1856) 583, in which the crime charged was murder and the defence insanity, Mr. Justice Metcalf, speaking for himself and Justices Bigelow

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Opinion of the Court.

and Merrick, said: "The burden is on the Commonwealth to prove all that is necessary to constitute the crime of murder. And as that crime can be committed only by a reasonable being a person of sane mind-the burden is on the Commonwealth to prove that the defendant was of sane mind when he committed the act of killing. But it is a presumption of law that all men are of sane mind; and that presumption of law sustains the burden of proof, unless it is rebutted and overcome by satisfactory evidence to the contrary. In order to overcome the presumption of law and shield the defendant from legal responsibility, the burden is on him to prove, to the satisfaction of the jury, by a preponderance of the whole evidence in the case, that, at the time of committing the homicide, he was not of sane mind."

It would seem that later cases in Massachusetts do not go to the extent indicated by the above cases. In Commonwealth v. Heath etc., 11 Gray, 303, which was tried before Justices Dewey, Metcalf, and Thomas, the charge was murder, and one question was whether the defendants were of sufficient intelligence to be responsible for a homicide. Upon this point, and as to the burden of proof, the court said: "The law presumes men and women of the age of the prisoners to be sane, to be responsible agents. Where therefore a homicide is proved to have been committed in such way and under such circumstances as, when done by a person of sane mind, would constitute murder, the presumption of law, as of common sense and general experience, supplies that link. It presumes men to be sane till the contrary is shown. The presumption of law stands until it is met and overcome by the evidence in the case. This evidence may come, of course, as well from the witnesses for the Government as the witnesses for the defence; and when the evidence is all in, the jury must be satisfied, in order to convict the prisoner, not only of the doing of the acts which constitute murder, but that they proceeded from a responsible agent, one capable of committing the offence. This is the rule to be applied to a case where the defence is idiocy, an original defect and want of capacity. Whether the rule is modified where the defence relied upon is insanity, disease

Opinion of the Court.

of the mind or delusion, it is not necessary now to inquire." In respect to that case we observe that, upon principle, the rule as to the burden of proof in criminal cases cannot be materially different, where the defence is insanity, disease of the mind or delusion, from the rule obtaining when the defence is an original defect and want of capacity. In Commonwealth v. Pomeroy, (reported in Wharton on Homicide, 2d ed. 753, Appendix,) which was tried in 1874 before Mr. Justice Gray (then Chief Justice of the Supreme Judicial Court of Massachusetts) and Mr. Justice Morton, afterwards Chief Justice of the same court, it was contended by the prosecution that the question of sanity, raised by the defendant, was to be determined by the preponderance of proof; that the Commonwealth was not bound to prove the sanity of the accused beyond a reasonable doubt. But the court said: "The burden is upon the government to prove everything essential beyond reasonable doubt; and that burden, so far as the matter of sanity is concerned, is ordinarily satisfactorily sustained by the presumption that every person of sufficient age is of sound mind. and understands the nature of his acts. But when the circumstances are all in, on the one side and on the other; on the one side going to show a want of adequate capacity, on the other side going to show usual intelligence; when the whole is in, the burden rests where it was in the beginning upon the government to prove the case beyond a reasonable doubt."

In State v. Spencer, 1 Zabriskie, 196, 202, 212 (1846), which was a case of murder tried before Chief Justice Hornblower, it was said that "when the evidence of sanity on the one side, and of insanity on the other, leaves the scale in equal balance, or so nearly poised that the jury have a reasonable doubt of his sanity, then a man is to be considered sane and responsible for what he does ;" and that the "proof of insanity at the time of committing the act, ought to be as clear and satisfactory, in order to acquit him on the ground of insanity, as the proof of committing the act ought to be, in order to find a sane man guilty." Again, in the same case: "If, in your opinion, it is clearly proved that the prisoner at the bar, at the time of the homicide, was unconscious that what he did was

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