— Questions arising on the law of evidence, from the universality of their application, are always questions of great interest. The rule to be expounded in this case, has a double object — it is not only adopted as a means of arriving at truth, but is also designed for the protection of witnesses. The credit of any witness might be destroyed, if it were permitted, after his examination, to call other persons to contradict his testimony in Court, by proving that he had made different statements to them, without first enquiring of him whether he had made such statements to them, as he might thereby recollect the circumstances attending the supposed conversation, if real, and perhaps be able to explain it.
In this case, the ground was laid on the cross-examination of one of the State’s witnesses, by asking him, if he had not made different statements to two persons, who were named, or to any other person. The two persons to whom his attention had been directed, were examined, and contradicted him. The prisoner’s counsel then proposed to call another, to prove that the witness had the same conversation with him. The counsel for the prisoner now insists, that he should have been received, on the ground that it was a question of veracity between the State’s witness, and those tvho contradicted him, and that they had a right to support their witnesses. We do not consider that the reasons assigned, furnish any cause for departing from the rule above laid down. Until the witness for the State had been enquired of as to the last witness offered, it *47cannot be known that he would have denied having had the conversation with him he is prepared to testify to ; he might admit' and explain it, so as to make it harmonize with his testimony. As to fortifying their witnesses, who had contradicted the witness for the State, it is obvious that, by the contradiction which their testimony afforded, the object had already been ac-„ complished. Whether it might not have been proper to admit such testimony, if the credit of the prisoner’s witness had been assailed by proof, it is not necessary now to determine. As to the refusal of the Court to permit the witness for the State to be called back, for the purpose of laying the ground for the examination of Armstrong, we think it purely a matter of discretion, which cannot be reviewed in this Court. It might operate most mischievously, to permit the credit of witnesses to be thus impeached, after they had left the stand, and their evidence fully known; and of this, no one can judge so well as the Court, in whose view the whole transaction passes.
The remaining question is one of much greater magnitude, and of some difficulty.
In civil cases, where there is conflicting testimony as to the existence of any fact necessary to be established by either party, the jury are under the necessity of weighing the evidence, and of deciding in favor of that party, on whose side the evidence predominates. But in criminal cases, the humanity of our law requires, that the guilt of the accused should be fully proved. It is not sufficient that the weight of evidence points to his guilt. The jury must be satisfied beyond a reasonable doubt of his guilt, or he must be acquitted. It is not meant here, that the evidence on which to found a verdict in a criminal case, should be so conclusive as to exclude the presumption, that notwithstanding the evidence, the accused might be innocent, but only that it should be of a character to raise that high degree of probability, on which all human action depends.
In what respect then does the question of insanity, when set up as an excuse for an act which would, otherwise be a crime, differ from any other fact, which a jury may be called on to decide in a criminal case. As insanity excuses the commission of crime, on the ground that the actor is not an accountable being, it is obvious that society has a deep interest in *48providing the means of preventing its being assumed as a cover for the commission of crime, and as this is more easily simulated, and depends more on the volition of the actor himself, than any other defence, which would excuse the commission of an act otherwise criminal, the interest of the public de.mands, that it should be established by more conclusive proof. Thus, in Arnold’s case, who was indicted for shooting at Lord Onslow, and who set up the plea of insanity, Tracy, Justice, observed, that the defence of insanity, must be clearly made out; that it is not every idle and frantic humor of a man, or something unaccountable in his actions, which will show him to be such a madman, as to exempt him from punishment; but that where a man is totally deprived of his understanding and memory, and does not know what he is doing, any more than an infant, a brute, or a wild boast, he will be properly exempted from punishment. In Billingham’s case, who was indicted for the murder of Mr. Percival, Mansfield, C. J., in reference to the plea of insanity, relied on for the prisoner, said, “ that in order to support such a defence, it ought to be proved by the most distinct and unquestionable evidence, that the prisoner was incapable of judging between right and wrong; that in fact, it must be proved beyond all doubt, that at the time he committed the act, he did not consider that murder was a crime against the laws of God and nature, and that there was no other proof of insanity, which would excuse murder or any other crime.”
!/ These opinions, which are undoubted law, show the stringent / nature of the evidence, by which insanity must be proved to / be an excuse for crime ; but we do not understand that even this defence, must be established by evidence so conclusive in its nature, as to exclude every other hypothesis. This would be requiring something akin to mathematical proof, of which the subject is clearly not susceptible; but that the jury must be fully satisfied, that the defence is made out, beyond the rea- , sonable doubt of a well ordered mind.
To test the case at bar by these principles — the Court was moved to charge the jury “ that if they entertained any reasonable doubt, as to the sanity of the prisoner, they must acquit him,” which charge the Court refused. Upon the princi-*49pies here laid down, it was error to refuse this charge. If the prisoner was insane, he was notan accountable being; and can the public justice of the country repose with safety upon a verdict found by a jury, every member of which may have entertained a reasonable doubt of its propriety. It would have been highly proper, that the Court, when called on thus to charge, should have explained to the jury, that this defence required to be made out by strong, clear, and convincing proof, and guided by these considerations, if they still entertain a reasonable doubt of the sanity of the prisoner, it was their duty to acquit.
The charge which was given by the Court, does not appear to be objectionable; but as it is probable the jury were misled by the refusal to give the charge asked for, the judgment must be reversed, the cause remanded, and the prisoner directed to remain in custody, to await a trial de novo; unless, in the interim, he shall be discharged by due course of law.