Separate, and partially dissenting, opinion of
Mr. Justice 'Waleee.I am unable to concur in all of the reasons assigned by the majority of the court, for reversing this judgment. On the question of the measure of proof necessary to a conviction, where the plea of insanity is interposed, thens may be a conflict in the authorities, but it will bo mend that the current, in fact all but two cases, so far as I can And, establish the rule, that the plea must be established by at least a preponderance of evidence. It is a presumption lying at the foundation of jurisprudence, as well as all the business relations of life, that all men are of sound mind. This proposition cannot > controverted, and to be avoided must be rebutted by evidence.
Tie plea of insanity, like all other special pleas, confesses the act charged and avoids its consequences, by showing circumstances which establish a defense. This defense, like every other plea which confesses and avoids, must be proved.yy,. And in analogy with the practice under special pleas generally, , the proof must devolve upon the party interposing the defense. ‘' ! In this defense the accused ,admits the homicide, but alleges, !, / that he was incapable of distinguishing right from wrong at' the time, owing to mental derangement. Having averred the'^ facts necessary to his defense, and being required to establish'^ the truth of his plea, can it be said that he has done so, when he has only rendered it doubtful whether he was sané or insane % This plea, like all other affirmative facts, is capable of satisfactory proof. It cannot be that a person is so far insane as not to know riglit from wrong, and yet those with whom he associates be ignorant of the fact. Such cases cannot occur among people of ordinary intelligence and observation.
In the case of Regina v. Oxford, 9 C. & P. 525, Lord Chief Justice DenMAN announced the rule, that all persons must be taken, prima facie, to be of sound mind until the contrary is shown. He says, “ the question is, whether the prisoner was laboring under that species of insanity that satisfies ” the jury “thathe was quite unaware of the nature and consequences of the act he was committing, or, in other words, whether he was under the influence of a diseased mind, and was really unconscious, at the time he was committing the act, that it was a crime.” It is here distinctly announced that the jury must be satisfied, and not merely left in doubt, of the truth of the plea. He says nothing about any species of doubt as to its truth.
In Great Britain, as late as in June, 1843, a series of questions was propounded to the fifteen judges, on the subject of th defense of insanity,. to which they returned answers. In answer to the second question, they say the jury ought, in all cases, to be informed, that every man should be considered of sound mind until the contrary is clearly proved in evidence. “ That before a plea of insanity should be allowed, ..undoubted evidence should be adduced, that the accused was of diseased mind, and that, at the time he committed the act, he was not conscious of right and wrong.” Wheat. Crim. Law, 46. •, This answer of all the judges of England clearly establishes the rule of law in the courts of that countiy to be, that the accused must prove this defense of insanity, by undoubted evidence of its truth. It is believed that no well considered case can be found, decided in any British courts, announcing a different rule.
In the case of Fisher v. The People, 23 Ill. 283, this court announced the rule, that “ Before such a plea can be allowed to prevail, satisfactory evidence should be offered that the accused, in the language of the criminal code, was “ affected with insanity,” and, at the time he committed the act, was incapable of appreciating its enormity.” The rule here announced is a modification of the rule of the British courts, and accords with the current of decisions in this country. Whilst this is not the uniform rule of the American courts, yet it has been announced by a large majority. This rule seems to accord with reason and justice, and is well calculated to protect community against the perpetration of crime, insure the accused of a fair trial, and is in accordance with the analogies of the law.
Experience teaches us, that insanity is readily simulated, to the extent of creating a doubt in the minds of those who have no opportunity, by associating with the accused, of detecting the fraud. If the rule announced by the majority of the court, becomes the established law, I have grave apprehensions that it will be found a ready means of screening the guilty from merited punishment, and will operate injuriously upon society. It appears to me that the well being of society, the prevention of crime, and justice to the people, all require that the rule in Fisher's ease should be no further relaxed.
I, however, concur with the majority of the court in holding that the accused was entitled to give evidence of his previous good character. This seems to be held to be evidence that the accused may resort to, and have considered by the jury. Its weight in many cases may justly be of great moment to him, whilst in others entitled to but little weight. It, like all other evidence, must be left to the consideration of the jury,’ to be weighed in connection with all the other testimony in the case. We are not able to say what its effect might have been had it been admitted.
The court below therefore erred in rejecting this evidence.
Judgment reversed.