I am of the opinion that the judgment in this case should be reversed upon the grounds: 1. That the court erred in refusing the defendant's request to charge that, "if the jury believe that the defendant's mother, in her lifetime, was insane, and that insanity is hereditary, they must take that fact into consideration in determining the question of the defendant's sanity." In response to this request, the court charged the jury that if it believed that the defendant's mother was insane and that insanity was hereditary, it might take those facts into consideration, but declined to charge that it must. I know of no principle upon which it can be properly held that a jury may refuse to consider material evidence which it believes. It seems to me that the defendant was entitled to the instruction asked for, and that the defendant's exception to the refusal of the court to charge as requested was well taken.
2. The court, in its charge, instructed the jury as follows: "The jury have a good deal of power. If you render a verdict *Page 255 against the defendant, and he feels himself aggrieved, why he can review it and reverse it. When you render a verdict of not guilty, either of the higher or lower degree, that ends it; the People cannot appeal." This was excepted to by the defendant. To instruct the jury that the defendant, if he felt himself aggrieved, could review and reverse the verdict, was clearly wrong. It was both incorrect and misleading. Its direct tendency was to induce the jury to find a verdict against the defendant with less consideration and upon less proof than it would otherwise require. The natural effect of this portion of the charge was to lead the jury to believe that if the defendant was found guilty and felt himself aggrieved, he could reverse its decision and, consequently, have another trial or be discharged. I can hardly imagine a statement to a jury which would be more effective to produce a conviction. This instruction could not have been otherwise than prejudicial to the substantial rights of the defendant, as its direct tendency was to deprive him of a fair consideration by the jury of the controverted questions of fact.
I do not see how a reversal of the judgment can fairly be avoided. I think it should be reversed and a new trial granted.
ANDREWS, Ch. J., GRAY, O'BRIEN and VANN, JJ., concur with HAIGHT, J., for affirmance. BARTLETT, J., concurs with MARTIN, J., for reversal.
Judgment and conviction affirmed. *Page 256