DISSENTING OPINION BY
E'akin, J.I make no question, in this case, of the sufficiency of the evidence to support the verdict, and think the instructions, taken as a whole, might, by nice reasoning, be reconciled with'the view of the law, which, in the conflict of decisions, accords best with general principles. Rut they are so divided and separately presented that there may be reason to fear that they were misapprehended by the jury; and they are approved by the Court as expressing views in which I fail to concur.
I think in all crimes, wherein mental capacity or mental conditions, form an element of guilt or innocence, that these mental powers or conditions are involved in the sole issue of guilt or innocence; and the same rules apply to their proof, and the degree of proof, as do to any other essential elements of the crime; and that if, as to them, the proof be such as to leave the minds of the jury in a state of reasonable doubt as to whether the defendant was or not in the condition to be able to commit the crime, in the degree charged, he should be acquitted of that degree. The fourth instruction seems to militate against that conclusion, and to hold the defendant liable to the highest degree of crime which would attach to the act if committed by a sane, cool person, unless he should show, by preponderating evidence, his mental condition to have been such as to incapacitate him for it. ’That means to say, that whilst the prisoner is entitled to the benefit of a reasonable doubt as to every other element of the crime save mental capacity, he is not as to this; but must prove the incapacity, not only by evidence sufficient to raise a reasonable doubt, (which is proper), but by evidence actually preponderating in the minds of the jury. .This position is supported by a line of authorities very numerous and respectable, and has some countenance in one of the decisions of this Court. His Honor, the Circuit Judge, did not feel warranted in departing from it, but I think the occasion now presented to reconsider the matter, enables me to say with propriety, that I do not think the position logical or in conformity with the general principles of criminal law. There is a line of authorities per contra, perhaps not so numerous, but entitled t<¡ the highest respect, to say nothing of the views of Mr. Wharton upon this point, in which I concur.
In estimating the degrees of murder, intoxication may be shown to repel the idea that the murder was committed with that degree of deliberation essential to the commission of murder in the first degree, as distinct from murder in the second —not to excuse the crime, but to show that the crime, in that degree, has not been committed. To the limited extent in which intoxication is admissible, it stands on the same grounds with other mental incapacity, generally called insanity. The onus of proof is confessedly on the defendant, in either case, to show the incapacity.
The question is not as to the onus. It is as to the degree and strength of the proof. We must distinguish between civil and criminal cases in the use of this word onus. In the former, wherever it rests, it must be sustained by preponderating^evidence. In criminal cases another principle intervenes — the principle of reasonable doubt. Wherever that exists, or in whatever essential elemant of crime, it is fatal to conviction.' It renders it impossible, equally when raised by the State, or by the prisoner. The issue is a single one of guilty or not guilty. The State making a prima faoie case throws the onus of proof in exculpation, such, for instance, as of mental incapacity. Onus means the necessity of proof. But owing to the peculiar nature of criminal cases, and the doctrine of doubt, the onus is sustained by proof sufficient to make on the minds of the jury a fair and reasonable impression of doubt, otherwise the cautious and beneficent doctrine of doubt, will be much'limited in its application, upon distinctions founded upon no good reason.
When the. common law and our statutes speak of the burden of proof on the prisoner in criminal cases, I conceive them to mean burden in this sense, and not in the sense of requiring preponderating evidence. After all, with due deference to the high courts and eminent jurists who have maintained the doctrine, is there not something absurd and illogical in saying that the jury must not convict any man of whose guilt they have a reasonable doubt, except the doubt be as to whether he was so unfortunate as to be incapable of guilt, but a doubt on that point must not save him. It would be ludicrous, if it were not so serious, to hang a man, notwithstanding the doubt, for the safety of society.
Murder, in a general sense, means murder in the second degree. It is this degree to which the common law definition applies. The crime of murder in the first degree is exceptional and of American creation. It resulted from the abolition of capital punishment, or the desire to abolish it, in ordinary cases, after the institution of penitentiaries, with the feeling that it would not be safe to do so in the case of wretches capable of perpetrating murder with deliberation under circumstances of atrocity. Hence the legislatures elevated these murders out of the general class, and the result has been that the higher crime must be shown by the State. The onus is on the State, not only to show murder by direct evidence of malice, or by circumstances from which it would be presumed — but, if it seeks’a conviction in the first degree, to show also that it was wilful and deliberate. If facts are then shown which would ordinarily indicate deliberation, the State has made out the higher degree of guilt, unless the prisoner in response or explanation should show circumstances or facts sufficient to raise a reasonable doubt as to whether or not there was deliberation. But if he does raise that doubt, why shall he be deprived of the benefit of it as to the degrees of crime? Can we, without abandoning the doctrine of doubt, insist that he shall do it by preponderating evidence?
There is proof in this case sufficient to have justified the jury in finding such a degree of intoxication, as, connected with his father’s suicide, would have authorized a doubt as to whether or not he was in a condition of mind compatible with deliberation. It was all, really, for which his counsel contended. The murder was unquestioned, and it was a sad and shocking one. But if it were the result of excitement and sudden determination in the mind of one incapable of deliberate thought, it would still, being murder from that amount of premeditation, not be murder, in the first degree; as contemplated by the statute. I think the instruction, though general in its terms, and not specially directed to this point, is not correct in the abstract, and may, in connection with the line of defense, have been understood by the jury to mean that they could not find murder in the second degree, unless the evidence of the mental incapacity were preponderating.
I have not cited the line of authorities sustaining the views I have taken. The bar, since Guiteau’s case, are familiar with the three lines of decisions, upon this much mooted question, and they may be found arranged in the recent editions of the text books on criminal law and evidence.
Whilst I think it commendable in the Circuit Judge to have followed what seemed to him the previous rulings of the Court, I would be pleased to have had the concurrence of my associates in laying down the rule differently for the future. Failing in this, and conceeding that they are supported by high authority, I, nevertheless, feeling that I am supported by equal authority, and better reasoning, respectfully dissent.