Statement of the Case.

tered. Walker v. Sauvinet, 92 U. S. 90; Davidson v. New Orleans, 96 U. S. 97; Missouri v. Lewis, 101 U. S. 22 Hallinger v. Davis, 146 U. S. 314.

The plaintiff in error is, indeed, not a citizen of Louisiana, but he concedes that, as respects his property in that State, he has received the same measure of right as that awarded to its citizens, and we are unable to see, in the light of the Federal Constitution, that he has been deprived of his property without due process of law, or been denied the equal protection of the laws.

The decree of the court below is.

MR. JUSTICE BREWER dissented.

Affirmed.

DAVIS v. UNITED STATES.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS.

No. 598. Submitted October 30, 1895. - Decided December 16, 1895.

If it appears, on the trial of a person accused of committing the crime of murder, that the deceased was killed by the accused under circumstances which nothing else appearing - made a case of murder, the jury cannot properly return a verdict of guilty of the offence charged if, upon the whole evidence, from whichever side it comes, they have a reasonable doubt whether, at the time of killing, the accused was mentally competent to distinguish between right and wrong, or to understand the nature of the act he was committing.

No man should be deprived of his life under the forms of law unless the jurors who try him are able, upon their consciences, to say that the evidence before them, by whomsoever adduced, is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.

THE plaintiff in error was indicted for murder, tried in the court below, and convicted. In the opinion of this court the issue brought here for decision is stated as follows. "The

Argument for Defendants in Error.

court below instructed the jury that the defence of insanity could not avail the accused unless it appeared affirmatively, to the reasonable satisfaction of the jury, that he was not criminally responsible for his acts. The fact of killing being clearly proved, the legal presumption, based upon the common experience of mankind, that every man is sane, was sufficient, the court in effect said, to authorize a verdict of guilty, although the jury might entertain a reasonable doubt upon the evidence, whether the accused, by reason of his mental condition, was criminally responsible for the killing in question. In other words, if the evidence was in equilibrio as to the accused being sane, that is, capable of comprehending the nature and effect of his acts, he was to be treated just as he would be if there were no defence of insanity or if there were an entire absence of proof that he was insane."

No appearance for plaintiff in error.

Mr. Assistant Attorney General Dickinson for defendants in error.

There is much conflict of authority on the proposition as to whether the judge should charge the jury that they must acquit if the whole evidence raises a reasonable doubt in their minds as to whether the defendant is sane or not.

The doctrine in England is well settled that the burden is on the defendant to establish his insanity to the reasonable satisfaction of the jury. Russell on Crimes, 9th ed. 525; Roscoe on Criminal Evidence, 7th ed. 975; Foster's Crown Law, 225.

In McNaghten's case, 10 Cl. & Finn. 200, the question of insanity as a defence in criminal cases having been made the subject of debate in the House of Lords, the opinion of the judges on the law governing such cases was taken, and on the point here involved the answer was that "the jurors ought to be told that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes until the contrary be proved to their satisfaction."

Argument for Defendants in Error.

The law so declared has been acquiesced in in England. In this country there are two lines of authorities. The following hold the doctrine that the burden of proof is on the defendant to establish insanity to the reasonable satisfaction of the jury, some of the cases using the language that it must be established by a preponderance of the evidence. These authorities will all be cited together as adverse to the contention that only a reasonable doubt must be raised: Rice's Criminal Evidence, vol. 3, §§ 398, 399; Wharton on Homicide, § 668; Wharton on Criminal Evidence, § 340; Wharton on Criminal Law, 7th ed. § 54; Greenleaf on Evidence, vol. 2, § 373; vol. 3, § 5. Alabama: Boswell v. State, 63 Alabama, 307; Parsons v. State, 81 Alabama, 577; Gunter v. State, 83 Alabama, 96; Maxwell v. State, 89 Alabama, 150. Arkansas: Coates v. State, 50 Arkansas, 330; Bolling v. State, 54 Arkan sas, 588. California: People v. McDonell, 47 California, 134; People v. Bawden, 90 California, 195; People v. Travers, 88 California, 233; People v. Bemmerly, 98 California, 299. Georgia: Fogarty v. State, 80 Georgia, 450, 455. Iowa: State v. Bruce, 48 Iowa, 530; State v. Trout, 74 Iowa, 545. Kentucky: Kriel v. Commonwealth, 5 Bush, 362; Moore v. Commonwealth, 18 S. W. Rep. 833. Louisiana: State v. Coleman, 27 La. Ann. 691; State v. Burns, 25 La. Ann. 302; State v. De Rancé, 34 La. Ann. 186. Maine: State v. Lawrence, 57 Maine, 574. Massachusetts: Commonwealth v. Rogers, 7 Met. 500; Commonwealth v. Eddy, 7 Gray, 583. Minnesota State v. Hanley, 34 Minnesota, 430. Missouri: State v. McCoy, 34 Missouri, 531; State v. Redemeier, 71 Missouri, 173; State v. Pagels, 92 Missouri, 300; State v. Shaefer, 22 S. W. Rep. 447. Nevada: State v. Lewis, 20 Nevada, 333. New Jersey: State v. Spencer, 1 Zabriskie, 196. North Carolina: State v. Starling, 6 Jones, 366; State v. Vann, 82 N. C. 631; State v. Davis, 109 N. C. 780. Ohio: Loeffner v. State, 10 Ohio St. 598; Bond v. State, 23 Ohio St. 349. Pennsylvania: Commonwealth v. Moler, 4 Penn. St. 264; Ortwein v. Common wealth, 76 Penn. St. 414; Pannell v. Commonwealth, 86 Penn. St. 260; Commonwealth v. Gerade, 145 Penn. St. 289. South Carolina State v. Bundy, 24 S. C. 439; State v. Alexander,

Argument for Defendants in Error.

30 S. C. 74. Texas: Webb v. State, 9 Tex. App. 490; Leache v. State, 22 Tex. App. 279. Utah: People v. Dillon, 8 Utah, 92. Virginia: Baccigalupo v. Commonwealth, 33 Gratt. 807. West Virginia State v. Strauder, 11 W. Va. 747.

The following hold that if the evidence raises a reasonable doubt of sanity the jury must acquit: Thompson on Trials, § 2524; 2 Bishop's Criminal Procedure, §§ 669, 673. United States Courts: United States v. Guiteau, 10 Fed. Rep. 161; United States v. Ridgeway, 31 Fed. Rep. 144; United States v. Faulkner, 35 Fed. Rep. 730; United States v. McClure, 7 Law Rep. (N. S.) 439; United States v. Lancaster, 7 Bissell, 440. Connecticut State v. Johnson, 40 Conn. 136. Florida: Hodge v. State, 26 Florida, 11. Illinois: Hopps v. People, 31 Illinois, 385; Chase v. People, 40 Illinois, 352; Dunn v. People, 109 Illinois, 635; Langdon v. People, 133 Illinois, 382. Indiana: Bradley v. State, 31 Indiana, 492; Guetig v. State, 66 Indiana, 94; Grubb v. State, 117 Indiana, 277; Plake v. State, 151 Indiana, 433. Iowa: State v. Jones,.64 Iowa, 349. Kansas: State v. Crawford, 11 Kansas, 32; State v. Mahn, 25 Kansas, 182; State v. Nixon, 32 Kansas, 205. Kentucky: Smith v. Commonwealth, 1 Duval, 224. Michigan: People v. Garbutt, 17 Michigan, 9; Underwood v. People, 32 Michigan, 1. Mississippi: Cunningham v. State, 56 Mississippi, 269. Nebraska: Wright v. People, 4 Nebraska, 407. New Hampshire: State v. Bartlett, 43 N. H. 224; State v. Jones, 50 N. H. 369; State v. Pike, 49 N. H. 399. New Mexico; Falkner v. Territory, 30 Pac. Rep. 905. New York: Brotherton v. People, 75 N. Y. 159; O'Connell v. People, 87 N. Y. 377; Walker v. People, 88 N. Y. 81. Tennessee: Dove v. State, 3 Heiskell, 348; King v. State, 91 Tennessee, 617. Wisconsin: Revoir v. State, 82 Wisconsin, 295; State v. Reidell, 14 Atl. Rep. 550.

Thus it appears that the preponderance of authority is against the contention that it is only necessary to raise a

reasonable doubt.

It is urged by those authorities holding the contrary doctrine that every element necessary for conviction must be established beyond a reasonable doubt; that while there is a presumption of sanity, this only goes to the extent of reliev

Argument for Defendants in Error.

ing the State of the burden of proving sanity, and without any proof on the subject the presumption is conclusive, but that when proof is introduced, inasmuch as malice and will could not exist in the mind of a person insane, evidence establishing a reasonable doubt as to the sanity of the defendant in effect establishes a reasonable doubt as to whether there were. malice and the operation of the will.

Nowhere has this doctrine been stated with more force than by Chief Justice Nicholson in Dove v. The State, 3 Heiskell, 366, 374.

The reasoning upon which the opposite conclusion is based is that sanity is the normal condition and that there is a presumption that every person is sane, and this presumption stands until it is overthrown, and that evidence which merely raises a reasonable doubt of sanity does not overthrow this presumption.

There is a difference, growing out of the well established rules of law based on public policy, between the doubt of guilt and the doubt of insanity. Malice is presumed from certain facts and persons are held responsible for the consequences of their acts upon the principle of presumption. These presumptions are fixed rules established by public policy and not by the reasoning upon each particular case. The rule, which has been enforced, that drunkenness is not an excuse for crime grows out of public policy. Fixed rules of law, established by public policy like this, are not to be subjected to the refinements of reasoning growing out of the facts of particular

cases.

It has been said that statistics show that a majority of the persons acquitted on the ground of insanity were not insane, and this even in England, where the strongest rule against the defendant prevails. The probability of a jury finding an insane man guilty, under the rule that insanity must be established to their reasonable satisfaction, is very slight as compared with the evil that results to society from the application of the doctrine that a reasonable doubt as to whether the defendant is sane or insane must be followed by acquittal.

It is urged, with great force of logic, which overlooks pub