Argument for Defendants in Error. 30 S. C. 74. Texas: Webb v. State, 9 Tex. App. 490; Leache v. State, 22 Tex. App. 279. Utah: People v. Dillon, 8 Utah, 92. Virginia: Baccigalupo v. Commonwealth, 33 Gratt. 807. West Virginia State v. Strauder, 11 W. Va. 747. The following hold that if the evidence raises a reasonable doubt of sanity the jury must acquit: Thompson on Trials, 2524; 2 Bishop's Criminal Procedure, $$ 669, 673. United States Courts: United States v. Guiteau, 10 Fed. Rep. 161; United States v. Ridgeway, 31 Fed. Rep. 144; United States v. Faulkner, 35 Fed. Rep. 730; United States v. McClure, 7 Law Rep. (N. S.) 439; United States v. Lancaster, 7 Bissell, 440. Connecticut State v. Johnson, 40 Conn. 136. Florida: Hodge v. State, 26 Florida, 11. Illinois: Hopps v. People, 31 Illinois, 385; Chase v. People, 40 Illinois, 352; Dunn v. People, 109 Illinois, 635; Langdon v. People, 133 Illinois, 382. Indiana: Bradley v. State, 31 Indiana, 492; Guetig v. State, 66 Indiana, 94; Grubb v. State, 117 Indiana, 277; Plake v. State, 1/1 In- 2 diana, 433. Iowa: State v. Jones, 64 Iowa, 349. Kansas: State v. Crawford, 11 Kansas, 32; State v. Mahn, 25 Kansas, 182; State v. Nixon, 32 Kansas, 205. Kentucky: Smith v. Commonwealth, 1 Duval, 224. Michigan: People v. Garbutt, 17 Michigan, 9; Underwood v. People, 32 Michigan, 1. Mississippi: Cunningham v. State, 56 Mississippi, 269. Nebraska: Wright v. People, 4 Nebraska, 407. New Hampshire: State v. Bartlett, 43 N. H. 224; State v. Jones, 50 N. H. 369; State v. Pike, 49 N. H. 399. New Mexico; Falkner v. Territory, 30 Pac. Rep. 905. New York: Brotherton v. People, 75 N. Y. 159; O'Connell v. People, 87 N. Y. 377; Walker v. People, 88 N. Y. 81. Tennessee: Dove v. State, 3 Heiskell, 348; King v. State, 91 Tennessee, 617. Wisconsin: Revoir v. State, 82 Wisconsin, 295; State v. Reidell, 14 Atl. Rep. 550. Thus it appears that the preponderance of authority is against the contention that it is only necessary to raise a reasonable doubt. It is urged by those authorities holding the contrary doctrine that every element necessary for conviction must be established beyond a reasonable doubt; that while there is a presumption of sanity, this only goes to the extent of reliev Argument for Defendants in Error. ing the State of the burden of proving sanity, and without any proof on the subject the presumption is conclusive, but that when proof is introduced, inasmuch as malice and will could not exist in the mind of a person insane, evidence establishing a reasonable doubt as to the sanity of the defendant in effect establishes a reasonable doubt as to whether there were malice and the operation of the will. Nowhere has this doctrine been stated with more force than by Chief Justice Nicholson in Dove v. The State, 3 Heiskell, 366, 374. The reasoning upon which the opposite conclusion is based is that sanity is the normal condition and that there is a presumption that every person is sane, and this presumption stands until it is overthrown, and that evidence which merely raises a reasonable doubt of sanity does not overthrow this presumption. There is a difference, growing out of the well established rules of law based on public policy, between the doubt of guilt and the doubt of insanity. Malice is presumed from certain facts and persons are held responsible for the consequences of their acts upon the principle of presumption. These presumptions are fixed rules established by public policy and not by the reasoning upon each particular case. The rule, which has been enforced, that drunkenness is not an excuse for crime grows out of public policy. Fixed rules of law, established by public policy like this, are not to be subjected to the refinements of reasoning growing out of the facts of particular cases. It has been said that statistics show that a majority of the persons acquitted on the ground of insanity were not insane, and this even in England, where the strongest rule against the defendant prevails. The probability of a jury finding an insane man guilty, under the rule that insanity must be established to their reasonable satisfaction, is very slight as compared with the evil that results to society from the application of the doctrine that a reasonable doubt as to whether the defendant is sane or insane must be followed by acquittal. It is urged, with great force of logic, which overlooks pub Opinion of the Court. lic policy and applies to the question of insanity the same reasoning which has been accepted in establishing the doctrine of reasonable doubt in respect of the affirmative facts necessary to be proven by the State to establish crime, that sanity when put in issue by any evidence must be established beyond a reasonable doubt. It is submitted that a substantial ground for differentiation exists. This has been presented by Attorney General Heiskell in the Dove case, as follows: "Doubt of insanity and doubt of guilt do not stand on the same footing. Rules of law are not matters of simple logical consistency. Policy influences them. Every man is presumed to know the law; to contemplate the consequences of his acts; malice is presumed from the use of a deadly weapon or from the fact of killing; not because courts suppose these things that they are universally true in fact, but that policy demands their adoption. Policy, not logic, is the foundation of the rule as to drunkenness, that it shall not excuse crime. The legal reason for it is, logically, nonsense; practically, wise. The same policy demands that we shall adhere to the English rule as to proof of insanity, not make a new one, as the courts of other States have done. "The defendant cannot be sent to an insane asylum on a doubt as to his insanity. He must, therefore, in all doubtful cases, be turned loose upon the country." The question is one that has not been passed upon by this court. The nisi prius Federal courts have held to the doctrine of reasonable doubt. MR. JUSTICE HARLAN delivered the opinion of the court. Dennis Davis was indicted for the crime of having, on the 18th day of September, 1894, at the Creek Nation, in the Indian Territory, within the Western District of Arkansas, feloniously, wilfully, and of his malice aforethought, killed and murdered one Sol Blackwell. He was found guilty of the charge in the indictment. A motion for a new trial having been overruled, and the court having adjudged that the accused was guilty of the crime of Opinion of the Court. murder, as charged, he was sentenced to suffer the penalty of death by hanging. At the trial below the government introduced evidence which, if alone considered, made it the duty of the jury to return a verdict of guilty of the crime charged. But there was evidence tending to show that at the time of the killing the accused, by reason of unsoundness or weakness of mind, was not criminally responsible for his acts. In addition to the evidence of a practising physician of many years standing, and who, for the time, was physician at the jail in which the accused was confined previous to his trial, "other witnesses," the bill of exceptions states, "testified that they had been intimately acquainted with the defendant for a number of years, lived near him, and had been frequently with him, knew his mental condition, and that he was weak-minded, and regarded by his neighbors and people as being what they called half crazy. Other witnesses who had known the defendant for ten to twenty years, witnesses who had worked with him and had been thrown in constant contact with him, said he had always been called half crazy, weak-minded; and in the opinion of the witnesses defendant was not of sound mind." The issue, therefore, was as to the responsibility of the accused for the killing alleged and clearly proved. In its elaborate charge the court instructed the jury as to the rules by which they were to be guided in determining whether the accused took the life of the deceased feloniously, wilfully, and with malice aforethought. "Where," the court said, "a man has been shot to death, where the facts, as claimed by the government here, show a lying in wait, show previous preparation, show the selection of a deadly weapon, and show concealment to get an opportunity to do the act, where that state of case exists, if there is a mental condition of the kind that renders a man accountable-why, there is crime, and that crime is murder." Referring to the evidence adduced to show that the accused was incompetent in law to commit crime, the court observed: "Now when a man premeditates a wicked design that pro Opinion of the Court. duces death, and executes that design, if he is a sane being, if he is what the law calls a sane man, not that he may be partially insane, not that he may be eccentric, and not that he may be unable to control his will power if he is in a passion or rage because of some real or imaginary grievance he may have received I say, if you find him in that condition and you find these other things attending the act, you would necessarily find the existence of the attributes of the crime of murder known as 'wilfulness' and malice aforethought." But, the court said, the law "presumes every man is sane, and the burden of showing it is not true is upon the party who asserts it. The responsibility of overturning that presumption, that the law recognizes as one that is universal, is with the party who sets it up as a defence. The government is not required to show it. The law presumes that we are all sane; therefore the government does not have to furnish any evidence to show that this defendant is sane. It comes in here with the fact established in legal contemplation until it is overthrown. The government takes and keeps that attitude until the evidence brought in the case overthrows this presumption of sanity. Now, let us see what the nature of this defence is. The defendant interposes the plea of insanity, and he says by this plea that he did the killing, but the act is not one for which he can be held responsible. In other words, that the act was and is excusable in the law, because he was insane at the time of its commission. Now, I say to you in this connection, and it is a fact admitted in argument by the counsel, that under the evidence there is nothing that justifies the act of the killing; nor was it such an act that the law upholds it or mitigates it, or reduces it to a grade lower than murder. If it was committed by the defendant while he was actually insane it is excusable." Again: "Now, I will undertake or endeavor to tell you, and I bespeak your most earnest attention especially upon this proposition of insanity.' The term 'insanity,' as used in this defence, means such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and wrong, or unconscious at |