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APRIL TERM, 1868, AT DETROIT.

The People v. Robert Garbutt.

Homicide: Eridence of disposition. On a trial for homicide, when there was no pretence that defendant had committed the offense in self defense, but on the contrary had deliberately done the deed, evidence showing the quarrelsome disposition of deceased, that he carried weapons, and had threatened to use them on defendant, was held clearly inadmissible.

Reputation as to being a good sol lier. On the trial, evi lence was offered tending to show that while defendant was in the army he was reported a good and valiant soldier: held irrelevant.

Mental condition as shown by undue excitement in time of battle. The opinions of witnesses as to what is undue and unnatural excitement in time of batile, can not generally afford safe ground for conclusions as to the person's mental condition years afterward, unless it appears that the excitement completely mastered the intellect, and deprived the person of accountability.

Hereditary insanity: Evidence. In criminal cases, it is competent to show hereditary tendency to insanity on the part of a defendant. Held further, that evi

dence of mental unsoundness on the part of a brother or sister of the person whose competency is in question, is admissible; and the jury should be allowed to consider it in connection with all the other evidence bearing upon that subject.

Drunkenness, no defense in commission of crime.

Voluntary drunkenness, of

whatever degree, constitutes no defense to the commission of crime. Criminal cases: Insanity: Burden of proof. Sanity being the normal condition of the mind, the prosecution in a criminal trial may rest upon the presumption that the accused was sane when he committed the act, until it is overcome by the defendant's evidence.

But when any evidence is given which tends to overthrow that presumption, the jury are to examine, weigh, and pass upon it with the under-tanding that, although the initiative in presenting the evidence is taken by the defense, the burden of proof upon this part of the case, as well as upon the other, is upon the prosecution to establish the conditions of guilt.

17 MICH.-B.

THE PEOPLE v. GARBUTT.

Charge of court in criminal cases: Rights of defendant to further charges. After the court had charged the jury, the defendant's counsel requested a further charge that as to good character it is for the jury to consider whether such reputation tends to rebut the presumption of malice. The court refused to give the charge, on the ground that it might tend to mislead the jury, without further explanation, which the court did not feel bound then to give, in view of a rule adopted by the court requiring that requests to charge must be handed in by counsel before the argument was commenced.

Held, that, though the rule was reasonable, and one which in courtesy counsel should certainly comply with, yet no unbending rule to this effect can be laid down, especially as the necessity for requests to charge may often arise from the very charge given by the judge.

Good character. In every criminal trial, good character is a fact which the defendant is at liberty to put in evidence; and, being in, the jury have a right to give it such weight as they think it entitled to.

Heard April 21st and 22d. Decided April 28th.

Defendant was tried and convicted in the Recorder's Court at Detroit, upon an information for murder. The facts are stated in the opinion.

Wm. L. Stoughton, Attorney General, for the People.

The defendant was convicted in the Recorder's Court of the city of Detroit, of the crime of murder in the first degree. The fact of the homicide is not denied. The questions raised by the bill of exceptions relate to the admission of evidence and the charge of the court.

1. The counsel for the defendant requested the court to charge the jury "that malice is a necessary element in the commission of murder, and must be proved by the prosecution as part of this case."

The court gave the charge as requested; adding the words "either by inference from other facts proved in the case, or by direct proof from declarations and acts of the defendant."

This qualification was necessary and proper. Malice is sometimes a mere inference of law from the facts proved. 1 Bish. C. L. § 263; 1 Whart. Am. C. L. 944; 11 Humph. 172; 1 Ashm. 289; 5 Blackf. 299; 1 East P. C. 371; 1 Hill, 377; 5 Cush. 535; 5 Mich. 1; 10 Id. 218.

THE PEOPLE . GARBUTT.

2. The court also instructed the jury "that the law so far regarded human infirmity that if a man under the influence of passion, excited by reasonable provocation, should lose all self-control and kill another, the presumption of malice would be repelled, and the offense would be manslaughter.

That what is such reasonable provocation is a question. of law for the court, and in this case the fact that La Plante succeeded in inducing Miss Boucher to give up the defendant and marry him, was not such reasonable provocation as will reduce the killing of La Plante from murder to manslaughter."

The court did not charge that there was no reasonable provocation in this case. As a legal proposition the instruction was clearly correct. There is a large number of

cases where the courts have declared that certain alleged facts do not constitute reasonable provocation.-1 Whart. Am. C. L. 970-986, and cases there cited; 3 Greenl. Ev. $125; 2 Ld. Raymond, 1493; 8 C. and P. 182; 10 Mich. 212.

3. The counsel for the defendant, after the jury had been charged, also requested a further charge to the jury, "that as to good reputation it is for the jury to consider whether such reputation tends to rebut the presumption of malice."

The court refused to give the charge, on the ground that it might mislead the jury, without further explanation, which the court did not feel bound then to give.

The charge requested was broad and unqualified, and would necessarily tend to mislead the jury.—1 Whart. Am. C. L. 643-646; 5 Cush. 535.

4. The rulings of the court in refusing to admit certain evidence offered by the defendant were correct.

a. The evidence offered by the defendant to show that the reputation of La Plante, the deceased, was that of a quarrelsome man, was clearly inadmissible.-Am. C. L. 641; 2 Gray, 294; 16 Ill. 17; 17 Mo. 544.

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