THE PEOPLE V. GARBUTT. in its early stages, and its causes are so subtle and so difficult to trace, that the most experienced experts are sometimes obliged to confess that, however careful and thorough their investigations, they still prove unsatisfactory, leaving the mind not only in a condition of painful uncertainty upon the principal question whether mental disease actually exists, but when its actual presence is demonstrated, failing utterly, in many cases, to trace it to any sufficient cause. This fact is very forcibly brought home to us by the conflicting views expressed on criminal trials by careful, experienced and conscientious medical experts, who, regarding the same state of facts in the light of their scientific investigations and actual but diverse experience, are forced to express differing views, in consequence of which juries, in these difficult cases, are sometimes left in a state of greater doubt and difficulty, if possible, than if no such evidence had been given. The case of Freeman v. People, 4 Denio, 9, and the more recent and noted case of the forger Huntingdon, are conspicuous instances in illustration of this truth; but others will readily occur to the mind. The defense sought to show hereditary tendency to insanity on the part of the defendant. That insane tendencies are transmitted from parent to child, there is now no longer a doubt; and though it was once ruled that proof that other members of the same family have decidedly been insane is not admissible either in civil or criminal cases (MeAdam v. Walker, 1 Dow. P. C. 148, 174; Chitty's Med. Juris. 354-5,) yet this ruling has since been rejected as unphilosophical and unsound, and it is now allowed to prove the insanity of either parent, or even of a more remote ancestor, since it seems well established that insanity sometimes disappears in one generation and reappears again in the next (Taylor's Med. Juris. 628-9, and cases cited; Whart. and Stille Med. Juris. 85 et seq.). In the case at bar it was not claimed that either parent, or any other ancestor, had been insane; but the defense THE PEOPLE V. GARBUTT. offered to show that insanity had been developed in a brother, arising from a cause similar to that which, it was alleged, had induced the destructive act of the defendant; and this fact was sought to be placed before the jury as throwing some light on the defendant's conduct and accountability. Although this evidence could not be very satisfactory in character, we think it was legally admissible. It is now generally believed that other things besides actual mental disease in the parents may cause the transmission of taints to their offspring, which result in some cases in idiocy or insanity. The children of habitual drunkards are thought to be much more susceptible to mental disease than those of persons whose habits have been correct and regular, and the medical opinion has been expressed that the children of those who are married late in life are also more subject to insanity, than those born under other circumstances (Taylor's Med. Juris. 629). But it sometimes occurs that persons in vigorous health and correct habits, who have nevertheless entered into a marriage which violates some physiological law, may become parents of weak and diseased children, only, so that insanity enters the family for the first time in the person of the children, but through qualities derived exclusively from the parentage. Melancholy examples of this fact are presented sometimes in cases of the intermarriage of near relatives. The reasons for this are not fully understood and can not be explained. We can only say of such cases, that observation teaches us the existence of a law of nature which can not be broken with impunity, but the full boundaries, extent and force of which we are as yet unable to fully comprehend, point out and explain. But there are other cases where we may be able to discover effects without the ability to point out either the law or the causes which produce them. What peculiar combinations of qualities in the parents may tend to produce mental perversion, weakness or disease THE PEOPLE V. GARBUTT. in children, must forever remain, in many cases, matter of profound mystery. If a family of several children should be found, without known cause, to be idiotic, or subject to mental delusions, the inference of hereditary transmission would, in many cases, be entirely conclusive, notwithstanding the inability to point out anything of a similar character in any ancestor. Insanity in a part of the children only would be less conclusive; but the admissibility of the evidence these cases can not depend upon its quantity, and it could never be required that it should amount to a demonstration. In some cases its force must be small; in others it will prove hereditary taint with great directness. We think evidence of mental unsoundness on the part of a brother or sister of the person whose competency is in question, is admissible, and that the jury should be allowed to consider it in connection with all the other evidence bearing upon that subject. The counsel for the defendant requested the court to charge the jury that if they believed the defendant was intoxicated to such an extent as to make him unconscious of what he was doing at the time of the commission of the offense, the defendant must be acquitted. A doctrine like this would be a most alarming one to admit in the criminal jurisprudence of the country, and we think the Recorder was right in rejecting it. A man who voluntarily puts himself in condition to have no control of his actions, must be held to intend the consequences. The safety of the community requires this rule. Intoxication is so easily counterfeited, and when real it is so often resorted to as a means of nerving the person up to the commission of some desperate act, and is withal so inexcusable in itself, that the law has never recognized it as an excuse for crime. Commonwealth v. Hawkins, 3 Gray, 463; United States v. Drew, 5 Mason, 28; People v. Hammill, 2 Parker, 223; Pirtle v. State, 9 Humph. 663. Whether all the charges given by the Recorder on this subject were correct, we do THE PEOPLE v. GARBUTT. not feel called upon to consider; as the only exception to the charge as given was a general one to the whole charge, which is not sufficient, when a part of it is correct, to raise questions upon other parts. The defendant's counsel also requested the court to charge the jury that sanity is a necessary element in the commission of crime, and must be proved by the prosecution as a part of their case whenever the defense is insanity. Also, that where the defense makes proof of insanity, partial or otherwise, whenever it shall be made to appear from the evidence that prior to or at the time of the offense charged, the prisoner was not of sound mind, but was afflicted with insanity, and such affliction was the efficient cause of the act, he ought to be acquitted by the jury. These requests were refused. It is not to be denied that the law applicable to cases of homicide where insanity is set up as a defense, is left in a great deal of confusion upon the authorities; but this, we conceive, springs mainly from the fact that courts have sometimes treated the defense of insanity as if it were in the nature of a special plea, by which the defendant confessed the act charged, and undertook to avoid the consequences by showing a substantive defense, which he was bound to make out by clear proof. The burden of proof is held by such authorities to shift from the prosecution to the defendant when the alleged insanity comes in question; and while the defendant is to be acquitted unless the act of killing is established beyond reasonable doubt, yet when that fact is once made out, he is to be found guilty of the criminal intent, unless by his evidence he establishes with the like clearness, or at least by a preponderance of testimony, that he was incapable of criminal intent at the time the act was done.- Regina v. Taylor, 4 Cox, C. C. 155; Regina v. Stokes, 3 C. & K. 188; State v. Brinyea, 5 Ala. 244; State v. Spencer, 1 Zab. 202; State v. Stark, 1 Strob. 479. These cases overlook or disregard an important and necessary ingredient in the crime THE PEOPLE V. GARBUTT. of murder; and they strip the defendant of that presumption of innocence which the humanity of the law casts over him, and which attends him from the initiation of the proceedings until the verdict is rendered. Thus, in Regina v. Taylor, supra, it is said: "In cases of insanity there is one cardinal rule never to be departed from, viz: that the burden of proving innocence rests on the party accused." And in State v. Spencer, supra, the rule is laid down thus: "Where it is admitted or clearly proved that the prisoner committed the act, but it is insisted that he was insane, and the evidence leaves the question of insanity in doubt, the jury ought to find against him. The proof of insanity at the time of committing the act ought to be as clear and satisfactory, in order to acquit a prisoner on the ground of insanity, as proof of committing the act ought to be in order to find a sane man guilty." These cases are not ambiguous, and, if sound, they more than justify the Recorder in his charge in the case before us. The defendant was on trial for murder. Murder is said to be committed when a person of sound mind and discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied.-3 Coke Inst. 47; 4 Bl. Com. 195; 2 Chit. Cr. L. 724. These are the ingredients of the of fense; the unlawful killing, by a person of sound mind and with malice; or to state them more concisely, the killing with criminal intent; for there can be no criminal intent when the mental condition of the party accused is such that he is incapable of forming one. These, then, are the facts that are to be established by the prosecution in every case where murder is alleged. The killing alone does not in any case completely prove the of fense, unless it was accompanied with such circumstances that malice in law or in fact is fairly to be implied. The prosecution takes upon itself the burden of establishing not only the killing, but also the malicious intent in every |