source: Caselaw Access Project

license: Public Domain

text:
    *Cyrus Armstrong and others v. D. W. Deshler.
    In a suit upon a joint and several promissory note, made by A, B, G, and D, one of the makers, not served with process, is incompetent as a witness for the defendants, upon whom process was served.
    This was an application for a Writ of Error to the ruling of the Supreme Court in Clarke county.
    Suit was brought by Deshler against Timothy Lyon, Peter A. Springman, Cyrus Armstrong, and Absalom Mattox, as joint makers of a promissory note, payable to the plaintiff or his order, at the Clinton Bank of Columbus. Process issued against all, and was returned, not served, as to Lyon. Springman, Mattox, and Armstrong, appeared and plead the general issue, verified by affidavit. The cause was submitted to the court without the intervention of a jury, and upon the trial, the following bill of exceptions was taken:
    “ This cause coming on to be tried upon the issue joined between the parties, as per the declaration and plea on file, and the plaintiff having closed his testimony in chief, the defendants then offered to prove to the jury that Timothy Lyon, who had not been served with process in the case, was the principal, and they sureties in the note declared on; that the interest in the note was in the Clinton Bank of Columbus, to which it was given; that he was a citizen of the state of Missouri, and resided there at the commencement of this action, and was wholly insolvent; that the defendants were possessed of property sufficient to render their ability to pay unquestionable, should a judgment be rendered in this action against them ; that they had, by an instrument sufficient for that purpose, released and discharged the said Lyon from all liability to them on account of the note aforesaid, or any judgment that might be recovered thereon against them, and had also deposited with the clerk of this court the 3um of one hundred dollars, to ¿pay any costs that might be adjudged in favor of the [476 plaintiff against the defendants, or against the said Lyon, in any proceeding that might he instituted to make him a party to any judgment that might be recovered on said note against the defendants. Supposing these several matters to be proved, to the satisfaction of the court, the defendants then proposed to offer, as a part of their evievidenee, the deposition then on file of the said Timothy Lyon, which deposition before then taken by the defendants, tended to prove that the note in question had been given upon a usurious contract with said Lyon. And, thereupon, the plaintiff objected to the reading of said deposition, on the ground that, if a recovery should be had in the action against the defendants, the said Lyon might be made a party thereto, by a proceeding in scire facias, which objection was sustained by the court, and the deposition rejected, and judgment was thereupon rendered in favor of the plaintiff, and against the defendants. The defendants, thereupon, except to the opinion of the court in rejecting the deposition aforesaid, and pray the court to sign and seal this bill of exception.”
    It being assigned for error upon the record, “ that the deposition of Timothy Lyon in said record mentioned, ought not to have been rejected on the trial of said cause, but, on the contrary, ought to have been received and considered,” this application was made to the court, in Bank for the allowance of a writ of error.
   Mason and Torbert argued in support of the application.

It was held that Lyon is an incompetent witness for the defendants, on the ground that, if a recovery should be had against them, he could be made a party to the judgment, by a proceeding in scire facias.

We contest this proposition, and on two grounds :

First: There is but one mode in which Lyon can be made a party to the judgment. This mode is prescribed by statute. Certain things must concur to render it available as a remedy. The deféndant must 477] “ reside” or, at least, be within reach of the ^process of the court. The writ of scire facias must be “ returned served” on him, “before he can be made a party to such judgment.” Swan’s Stat. p. 658. The bill of exceptions shows that Lyon is a citizen residing in another state, and, therefore, beyond the jurisdiction of the courts of this state. But, it may be replied, he may voluntarily come within the jurisdiction of this state. The plaintiff may come to the knowledge of it, and may cause him to be served with a scire facias, if he can be found. These things are all possible. And yet they are not even possible without the voluntary act and consent of Lyon himself. ■What kind of a right is that which can not be exercised without the voluntary act and will of him against whom it is to be enforced ? There is no legal obligation on Lyon to come to this state, nor has the plaintiff power to bring him here.

We are thus irresistibly conducted to the conclusion that he can not be made a party to the judgment without his own consent.

A liability of this nature, if liability it may be called, depending, as it does, on some future act, to be done or not done, at the will of the party himself, is not, we submit, such an interest as goes to the competency of Lyon as a witness. A remote or contingent interest does not render a witness incompetent.

Second : But suppose Lyon to have an interest in the event of the suit on the alleged ground of his liability to be made a party to any judgment that may be obtained against the defendants, he is still so situated that the event is to him a matter of indifference, and therefore he is a competent witness. In all eases of balanced interest the witness is admissible. G-reenleaf’s Law of Evidence, 445, 464. The bill of exceptions shows that the defendants have released Lyon from his liability to them on account of the note or any recovery that may be had against them ; and also, that money has been deposited sufficient to pay all costs that may arise in the suit against them, or in any proceeding to make him a party to the judgment. But this does not release his liability to the plaintiff.

*We have found no case which decides, where a joint action [478 is brought on a joint and several undertaking, and a part only are-served with process, that the plaintiff loses his remedy, both at law and in equity, against all that were not taken. But cases have been found in which relief has been denied against dormant partners, after a recovery had at law against the ostensible partners for a joint debt contracted by the partnership. S. and P. Penny v. Martin and others, 4 John. Ch. 566, and the note subjoined thereto.

The court held that there was a joint and not several liability ; that joint debtors must be jointly sued, and a joint indebtedness in all the defendants must be shown ; and that, when, in respect to any of the defendants, the right of action is gone, or suspended, their joint liability being at an end, the other defendants may avail themselves of this suspension, or discharge. But contra, Sheehy v. Mandeville and Jemisson, 6 Cranch, 253; Story on Part. 543, and notes.

But even if the obvious justice of the case must be made to yield to the force of a technical rule of law, by which the separate liability of one is supposed to be merged in a judgment against others, when rendered in a joint action against all, still the creditor is not without remedy in a court of equity. Chitty recommends, when the contract is joint and several, and the demand considerable, that the creditor proceed separately against the debtors; for, he adds, if all the parties be joined, and one of them die after judgment, and before execution, the remedy at law against the personal estate or assets of the deceased is determined, and in the case of the death of a surety, even a court of equity will not, in all cases, relieve. He refers to several cases, and, amongst others, to 3 Vesey, 399; 2 Vesey, sen. 106, 171 ; 1 Chitty’s Pleadings, 49, 50, 7 Amer. ed. and notes.

Third: Again, the interest of Lyon was hostile to the party who offered his deposition in evidence ; for if the plaintiff recovered against Armstrong and others, and obtained satisfaction from them, that would be a bar to his action against Lyon, and the release of Armstrong and 479] others would protect him *against any action which they might bring against him, for contribution or otherwise. Le Roy, Bayard & Co. v. Johnson, 2 Peters, 186.

W. A. Rogers, on the same side, also argued—

First: Lyon would be as certainly and extensively liable, at law, upon the note, the original cause of action, in the event of a judgment for the defendants as he would be by scire facias upon a judgment against them. His interest is, therefore, balanced, and he is competent.

He cited 6 Johns. 98 ; 4 Johns. Ch. 566 ; Story on Partnership, 543, sec. 385 ; 6 Cranch, 253 ; Grow on Partnership, 216 ; 4 Taunton, 752 ; Chitty on Contracts, 44.

Second ; In a separate suit against Lyon, a judgment in favor of defendants would be of no benefit to him as evidence.

Third : As the court have placed their objection to Lyon’s testimony, not upon the relation which he now bears to the case, as one against whom process issued and was returned not found, but upon his liability.

Fourth: Although there are conflicting authorities as to the admission of parties to the record even where they have no interest, yet I take it for granted the court, on this point, agree with Tindal, C. J., in Worrall v. Jones, 7 Bingham, 395, cited in notes to 2 Philips’ Ev. 136, that so far as the English cases go, “ no ease has been cited, nor can any be found, in which a witness has been refused upon the objection, in the abstract, that he was a party to the suit. On the contrary, many have been brought forward, in which parties to the suit, who have suffered judgment by default, have been admitted as witnesses .against their own interest, and the only inquiry seems to have been, in a majority of eases, whether they were interested in the event of the suit or not; ” and with Washington, J., “ That the general rule of law certainly is that a party to a suit can not be a competent witness ; but it is equally so, that the interest which that party has in the event of the suit, both as to costs and the subject in dispute, lies at the *foundation of the rule, and when that interest is removed the [480 objection ceases to exist.

Perry and Dennison against the application.

The main question seems to be this—

If a recovery he had against the defendants, served with process, ■will not such recovery be against the interest of Lyon ? If so, his testimony was properly ruled out.

1. Lyon was a party defendant on the record. The rule is, we understand from the books, a party can not testify except against his own interest; and then only with the consent of the opposite party. This rule is not founded solely upon the consideration of interest, but upon general policy. G-reenleaf’s Evidence, 378, et seq.

2. Lyon had an interest. If a judgment went against the defendants, served with'process, he could, under our statute, be made a party ■to the judgment by scire facias. It makes no difference that he lives in Missouri. It is a thing hanging over him of lying in wait for him, in this state. The interest is unquestionable.

3. But it is claimed that this interest is balanced — that if the plaintiffs fail in this suit against the defendants, served with process, they can, nevertheless, commence their suit against Lyon and recover ; so that a judgment does not affect his interest one way or the other. The argument proceeds upon the ground that the note was joint and several, and that after electing to consider it a joint note, and suing a joint action, the plaintiffs may afterwards elect to consider it a several note, and recover in a several action against one of the parties.

It is a sufficient answer to this, that the record no where shows the note to be joint and several. It appears throughout to be a joint note.

This, we suppose, must put an end to the case. But were it a several as well as joint note, it seems to be conceded by the other side that an action could not be maintained against Lyon severally, and against the other defendants jointly, at the *same time. Why? [481 Because one would abate the other. Now, can the other side produce an instance where one action being commenced at the same time of another, would be abated by it; when, if the other'had been decided, it would not be bound by it ? In other words, does not the same principle which makes one action abate another, pending at the same time, make a judgment in the first, bar the other, if commenced afterwards. In concluding that the two actions can not be carried on at the same time, it seems to us the whole point is conceded. If the second suit can not be carried on at the same time, it can not be carried on at all. For there is no reason why lapse of time should vary the principle.

“ Where three obligors are jointly and severally bound, the plaintiff must sue‘them all jointly, or each of them separately.” Chitty’s Pleadings, 49.

It can not be doubted but if the action fail against the present defendants, they will be effectually discharged from the debt.

“ Where the debt is distinguishable as to one, it discharges all, whether the parties intended it or not.” Story on Bills, sec. 431; 18 Johns. 459.

Chitty, in speaking of the joinder of parties jointly and severally bound, says :

“ There may, however, be this objection in case of a joint contract, to the nonjoinder of one or more of the several parties liable, that if judgment be obtained against one, and in a separate action against him-on such contract, the plaintiff may have difficulty in afterwards proceeding against the parties omitted.” 1 Chit Pleading, 53,

Since we have seen the papers in the present application, we have bad no time to search the books to any extent, and will trouble the court with but one more reference ;

“ If three persons bind themselves by a joint and several contract they may be sued jointly or severally, as in the last case. But two of them can not be sued together in one action, while they are all living, without the other. For the plaintiff must treat the contract as alto 482] gether joint or *altogether several. An action partly joint and partly several, quoad the parties liable, being unknown in the law. But in the case now supposed, if the plaintiff sues two and only two of the three, in one action, he, by joining the two, treats the contract so far as joint, while, by not joining the third, he treats it as several.” Gould’s Pleading, 207, and references.

But the record shows this to be joint only. The testimony of Lyon goes to extinguish the debt entirely, as to the present defendants; and the authorities seem to be uniform, that when a joint debt is extinguished by any means, as to some of the joint contractors, it is.extinguished as to all.

The record was indorsed by the four judges, as follows;

The writ of error applied for in this ease is not allowed.

E. LANE,

R. WOOD,

M. BIRCHARD.

N. C. READ.


text:
    The Franklin Bank of Cincinnati v. The Executors of Eunice Buckingham.
    Where a cause is, by consent of parties, submitted for trial to the court, without the intervention of a jury, a bill of exceptions may be taken to the opinion of the court, upon the questions of law arising in the case.
    In such cases error will lie to the ruling of the court, upon questions of law, in the same manner as if the cause had been tried to the jury.
   Upon the circuit, in Hamilton county, the trial of this cause was submitted to the court, by the 'agreement of parties, without the intervention of a jury. A bill of exceptions was taken by the defendant, and a writ of error brought.

The defendant in error moved, in bank, to quash the writ, on the ground that, where the cause was, by agreement, submitted for trial to the court, error would not lie.

*The question was argued, in open court, by Charles Con- [483 vers in favor of the motion, and by H. Stanbery contra.

Motion overruled.


author: Birchard, Judge,

text:
    William Clark v. The State of Ohio.
    On a trial for murder, where insanity was set up as a defence, a physician having stated, on examination in chief, that, in his opinion, the prisoner was insane, in order to test the accuracy and value of that'opinion, he may be asked, on cross-examination, whether, in his opinion, the accused knew right from wrong — that it would be wrong for him to commit murder, rape, arson, or burglary.
    On a question of insanity, witnesses, other than professional men, may state their opinion, in connection with the facts on which it is founded.

      A physician, should also state the reasons of his opinion, and the facts on ■which it is based, and, if not sustained by them, it is entitled to little weight.
    An objection to the admissibility of evidence, if not made at the trial, will not be ground of error, but will be considered as having been waived.
    This was an application for a Writ of Error to the Supreme Court of Franklin county.
    At the December Term, 1843, of the Supreme Court in Franklin county, ffm. Clark was put on trial by jury, before Judges Birchard and Reed, for the murder of Cyrus Sells. The proof established the fact of killing in the manner laid in the indictment, and the jury returned a verdict of “ guilty of murder in the first degree,” and sentence of death was pronounced upon him.
    On the trial, the only defence attempted was, the plea of insanity, which was resisted by the state, and thus it became material to determine whether certain conduct of the accused was feigned and artificial.
    In order to rebut the defence, the prosecutor called a witness, Wm. Domigan, who was not a physician, or professional man, and who 484] stated, on inquiry, that he was sheriff of Franklin *county, and had been in the habit of seeing Clark as often as once in two or three days, for the last two years, and sometimes every day; that he had had frequent conversations with him, and been frequently present when he conversed with others; when the following question was put by the prosecutor : “ From all you have seen and known of the defendant, what is your opinion as to whether he is, or has been insane, during the time that you have known him? ” to which question the defendant, by his counsel, objected, on the ground that such an opinion, as to the existence of insanity, could not be asked of a witness who was not a physician, or professional man, and whose pursuits were not such as to render him skillful in detecting that disease. The court instructed the witness to regard the question as confined to his personal knowledge, and permitted the witness to answer the question, thus limited, overruling the objection of defendant, on the ground that the witness was competent to form an opinion whether the conduct of the prisoner was feigned; and the witness testified “ that he had never considered said defendant, since he had known him, and did not now, consider him insane : ” to which decision the defendant excepted, by his counsel, for the reason before stated. Substantially, the same question ond testimony, under like circumstances and limitations, were given by nine other witnesses, who were not professional men, and» in each case, the same objection was overruled, on the same ground, and-the several decisions were excepted to.
    During a previous stage of the trial, Robert Thompson, a physician was called as a witness by defendant, and, on his examination in chief, testified that he believed the defendant insane, and to have been so during the times which he had examined him, which was from November, 1841. On cross-examination, the prosecutor put the following questions :

      Question 1 — Do you think, from what you know of defendant that he is, or has been, since you have known him, incapable of distinguishing right from wrong ?

      Answer — I can not say that I think.he is, or has been, since I have known him, incapable of distinguishing between right and wrong.

      *Question 2 — Do you think that he would, at all times, during [485 the period of your acquaintance with him, have known that it was wrong to commit murder?

      Answer — I think he would.

      Question 3 — Do you think that he would, at all times during the period of your acquaintance with him, have known that it was wrong to commit arson, rape, or burglary ?

      Answer — I think he would.
    To all which questions and answers the defendant, by his counsel, objected, on the ground that the same were irrelevant to the issue; but the objections were overruled, and the several questions and answers were admitted by the court, and the decision of the court excepted to.
    G. Swan and John W. Andrews, for Clark, assigned for error—
    First: That the question put to Wm. Domigan, and the nine other unprofessional witnesses, asking their opinions, respectively, as to the insanity of the defendant, were improper, and contrary to law, and that the objections to the same, and to the said answers thereto, should have been sustained, and said testimony rejected.
    Second : That said questions, put to said R. Thompson, as to defendant’s general knowledge of right and wrong, and as to his knowledge that it would have been wrong for him to commit a rape, arson, or burglary, were improper, and contrary to law, and that the objection to the same, and to the said answers thereto, should have been sustained, and said testimony rejected.
    Third : That of all said questions and answers, relative to the opinion of said unprofessional witnesses on the question of the existence of insanity, and all of said questions put to said R. Thompson, on cross-examination, and objected to, should have been, with the answers, rejected.
    Andrews, in support of the motion, cited, and commented upon, the 486] following authorities : 4 Mass. 593 ; 7 Serg. *and Rawle, 92 ; 4 Conn. 203 ; 8 Serg. and Rawle, 573 ; 8 Mass. 371 ; 1 Peters 164 ; 9 Mass. 218 ; 3 Mass. 330 ; Chitty’s Med. Jurisprudence, 356 ; Ray’s do.; 3 Philips on Evidence, 759, 762, etc. ; 7 Wendell, 78 ; Stephens’ N. P., 1779 ; 4 Cowen, 356.
    He contended that facts, and not opinions, should alone be admitted as testimony ; that the case in 7 Serg. and Rawle, 92, is clearly distinguishable from a case of lunacy, and impliedly admits a different rule of evidence, in a case of insanity; that the question, whether insanity was real or feigned, did not avoid the objection.
    Swayne and Heyl for the State, contra.
    The ground of objection was, that the witness, Domigan, was not a professional man. This raises the point whether a non-professional man can, under any circumstances, express an opinion as to the sanity of a party charged with crime.
    Upon this point, we refer to the following authorities : 2 Starkie, 932; 7 Serg. and R. 92 ; 11 Serj. and R. 143 ; 3 Wash. C. C. 582 ; Wright, 398 ; Mercer’s case, tried in New Jersey.
    In regard to the questions asked of Dr. Thompson, it is sufficient to say that they were asked on cross-examination.
    A non allocatur was indorsed, signed by all the judges.
   Birchard, Judge,

gave the opinion—

As to the questions put to Robert Thompson, and his answers, little need be said. The questions were proper for the purpose of testing the value and extent of the opinion given by him, on his examination in chief.

No better illustration of the question could be given than was furnished by the examination of this witness, who stated that he saw nothing like phrenzy or raving madness, and that he had detected nothing of what, technically speaking, is comprised in the expressive term “ delusion.” He thought, perhaps, Clark was deluded on the 487] subject of his name, *as he insisted it was William Y. Graham, and not Wm. Clark; also, in reference to a water pump, which he professed to have invented.

But other proof established the fact that he had been engaged in an effort to improve a water pump, and that his true name was William Y. Graham ; but, admitting the delusion as to these two subjects, there was not the slightest evidence to connect it with the act of taking the life of Cyrus Sells. The defendant sought to make out a ease of general insanity, or, if the proof would better sustain it, of partial insanity. The defence looked to whatever form of insanity might prove most available, when all the evidence should be before the jury.

Viewing the case, and the state of facts existing at the time the questions were put to Doctor Thompson, and it would seem that each one of the questions and answers were relevant to the issue tendered by the defendant, for each one tended, to some extent, to show that the state of general insanity relied on by him did not exist

Upon the other point presented by the bill of exceptions, there is more difficulty. To determine what the rule is, and should be, it will be useful to look to adjudications upon analogous questions, and to the subject matter of the inquiry, and to the reason of the rule itself. The bill of exceptions shows the true character of the objection taken to the testimony of Domigan, and the nine other nonprofessional witnesses, to be this, that they could give no opinion as to the insanity of the accused, under any circumstances. It was not' that they did not detail the facts upon which they had formed the opinion stated by them. Although such an objection is argued, it does not belong to the case, and will not be considered on error. It was required of the witnesses to state the facts upon which they based their opinions, unless considered as waived by counsel, in order to abridge .the time occupied by the trial. The rule in Dickinson v. Baker, 9 Mass. 227, was adhered to : That the opinion of physicians, as to a party’s insanity, was not to be received as evidence, unless predicated upon facts, testified to, either by them or others.” It is the same as in 8 *Mass. 371, where it was held “ that physicians, in giving an [488 opinion as to insanity, must state the circumstances or symptoms from which they drew their conclusions,”

Throughout the whole trial, and as often as the question was raised, or objection made, this was the ruling of the court, for, upon the facts almost, if not entirely, depended the value of every opinion, whether professional or nonprofessional. Hence the bill of exceptions states the one and only ground of objection to have been, that nonprofessional witnesses were allowed to give their opinion as to the feigned or real character of the pretended insanity of the defendant, based upon the facts which they knew, and had witnessed, and were upon the stand, ready to relate.

In examining this question, it should be remembered that “ insanity is a disease of the mind, which assumes as many and various forms as. there are shades of difference in the human character. It exists in all imaginable varieties, and in such a manner as to render futile any attempt to give a classification of its numerous grades and degrees that would be of much service, or, under any circumstances, safe to be relied upon in judicial investigations. It is an undoubted fact, that, in determining a question of lunacy, the common sense of mankind must ultimately be relied on, and, in the decision, much assistance can not be derived from metaphysical speculations, although a general knowledge of the faculties of the human mind, and their mode of operations, will be of great service in leading to correct conclusions.” Shelford on Lunacy, 38.

The verdict of a jury, on a question of insanity, is but the opinion of nonprofessional men, formed upon facts and science disclosed and learned at the trial. They have facts and opinions to consider and weigh. The credibility of all witnesses is not the same. The value of all their opinions is not the same. It would be but a farce to try such a question upon the strength of medical opinions, and to regard the weight of evidence always on the side which produced the greatest numbers. Sir John Nicholl in Evans v. Knight, 1 Add. 239, observes 489] that “ experience in the ecclesiastical court taught him that *evidence on questions of capacity, being commonly that of opinion, merely, was almost always contradictory; that perhaps no two will have seen the party at the same time, and under the same circumstances ; and that each measures by his own standard. ’ ’

The difficulties witnessed by Sir J. Nicholl, almost always occur when the opinions of physicians are required in cases of medical jurisprudence. Whenever they have enlisted on the side of either party, or of some favorite theory, and one portion of the profession is placed in array against another, the difficulties mentioned in the passage above quoted, are greatly multiplied, and, however honest or renowned for professional character the witnesses may be, such will be the conflict of their testimony, in nine eases out of ten, that it will be utterly unsafe for a jury or court to follow, or adopt, the conclusions of either side.

The jury must exercise their own judgment and good sense after all, and do justice accordingly, profiting by the aids derived from the conflict, but in spite of the obstacles it creates. Insanity is a disease of the mind ; and physicians, with all the science they possess, are as yet like the masses of mankind, without any certain knowledge of the-nature of the thing disordered. They know, and all men know, that mind exists. By the results it produces in a healthy state, all men have equal evidence that it is ; but what it is, how to fathom, span or define its nature, is what we lack direct facts and analogies to enable us to do. Philosophers and physicians are here upon a level with the common masses of our race, and if wiser upon the subject, it is because-they have been more astute and attentive observers. Every one who associates with his species, acquires, daily, correct knowledge of the-natural operations of the human mind, and a capacity to form an opinion, if there should happen to be an aberration from the path of sanity, in any of his constant associates. The ability to form -a just conclusion will depend much upon his native intelligence and accuracy of observation. .Haslam, page 5, and Shelford, 70, remark “that it has been questioned whether medical evidence *to prove insan- [490' ity, be not inferior to that of other people who may have had opportunities of observing the individuals, when the same opportunities have not been in the power of the practitioner.” It may be impossible for a physician, who has not become familiar, by experience, with some of the peculiar, indefinable, but certian indicia of insanity, in a case where it is feigned, to determine that it is so, without watching the patient by night, as well as by day for some time, and when he does not know that he is watched, to see whether he can resist hunger, cold and sleep, and whether his conduct affords any sure test to distinguish feigned appearances, assumed for a particular purpose, from a case of' real disordered intellect. It is idle to suppose that none but medical men can do this; and as idle to assume that, when done by an intelligent observer, his conclusions would be worthless. " Doubtless an opinion formed by a person professionally conversant with the disease, upon the same observations, would be the most reliable; but if formed upon any relation of the facts which the observer would be able to give, it would be difficult to say, in many cases, that it would be the-safest. A careful daily observer of -ar person feigning madness would witness innumerable acts, motions and expressions of countenance, which, with the attending incidents and circumstances, conclusively satisfy him of the fictitious character of the pretended malady, but which he could never communicate to a jury or scientific man, so as to-give them a fair conception of their real importance. From poverty of language, these facts, should a witness attempt to detail them,, would necessarily be mixed up with opinions, general or partial, in-spite of his best efforts to avoid it. There are things well known to all persons which our language only enables us to express by words of comparison — such are the peculiar features of the face indicating an «excitement of the passions, affections and emotions of the mind, as hope, fear, love, hatred, pleasure, pain, etc. Testimony affirming the existence or absence of either of these, is but a matter of opinion. 'So the statement of the fact that a man’s whole conduct is natural, is 491] but the opinion of the *witness, formed by comparing the particular conduct spoken of with the acts of the past life of the individual. It would hardly be claimed that such evidence should be excluded, yet it is equivalent to an opinion that the person is sane.

We are not now considering whether professional witnesses shall be permitted to give an opinion upon the question of sanity, and under what circumstances, but whether, in the absence of such testimony, •and under any circumstances, an opinion may be evidence, coming from a nonprofessional witness. To test the propriety of the thing, let us suppose a case of simulated or real insanity to be tried, in which .•no scientific person could be had to speak as to any prior and attending conduct or appearances, and when the jury must be left to decide the issue from facts unprofessionally detailed to them by the neighbors and acquaintances of the party. Can it be supposed that they would be more likely to form a correct opinion upon such a statement •of facts, unaided by the inferences and impressions made upon the witnesses familiar with the ordinary conduct of the individual, than the opinion of those witnesses, formed upon the same facts, better •understood, one step farther removed from uncertainty and misapprehension, and aided and illustrated by many minute acts and expressions, etc., which could never be related? Common sense teaches every person that they could not; and it will follow that there is no ■sound reason for excluding the opinion, as limited, from the jury, and that sanity ought to be held an exception to the general rule ; but, at the same time, we by no means intend to undervalue the importance •of the opinions of scientific men when properly given. Medical testimony is of too much importance to be disregarded. When delivered with caution, and without bias in favor of either party, or in aid of ■some speculation and favorite theory, it becomes a salutary means of preventing even intelligent juries from following a popular prejudice, and deciding a cause on inconsistent and unsound principles. But it should be given with great care and received with the utmost caution, .and, like the opinions of neighbors and acquaintances, should be regarded as of little weight if not well sustained by *reasons arid [492 facts that admit of no misconstructions, and supported by authority of acknowledged credit. See Smith’s Anal. 197.

It is contended that the testimony was admitted contrary to all the authorities. We are prepared to admit that there are some against it; but the authorities are conflicting. In the probate of wills, and in issues to try their validity, the subscribing witnesses are allowed and required to state that, in their opinion, the testator was of sound and disposing mind and memory. In the English ecclesiastical courts, which have exclusive jurisdiction on the subject, “ when the evidence proves the execution of a will, but the witnesses have not been examined as to the sanity of the testator, the cause will be adjourned, and liberty will be given to exhibit an interrogatory to prove his sanity.” See 6 Russell, 526, 527 ; 2 Atk. 56. In Lowe v. Jolliffe, 1 W. Bl. 365, on an issue out of chancery, divisavit vel non, the subscribing witnesses to a will and codicil, and about a dozen servants of the testator, swore him to be utterly incapable of making a will; and, to contradict this evidence, several of the nobility and gentry who were acquainted with him, and two physicians, all deposed to his entire sanity. The latter evidence prevailed, and three of the subscribing witnesses were afterwards convicted of perjury. In the case of Drew v. Clark, 1 Flagg, 18, and 3 Add. 79, 209 ; the validity of the will of Ely Stott was successfully contested on the ground of monomania ; and, on the trial, several of his friends and acquaintances testified “ that they never considered or even suspected that he was deranged in his mind.” Some were medical men, and some not, but the opinions of all were received in evidence. In Fuller v. Allison, 3 Flagg, 527, 547, the testator’s solicitors and physicians and the subscribing witnesses to the will, all testified their opinions as to his sanity. I have not been able to find that there was ever a contrary decision in the English ecclesiastical courts ; although, at the trial, relying on the digests and elementary writers, I supposed that all the English authorities were the other way.

*In Connecticut, witnesses who were not professional, were [493 allowed to state their opinions, on the trial of a defence of lunacy, in connection with the facts on which they were formed. Grant v. Thompson, 4 Conn. 208.

Judge Swift, in his Treatise upon Evidence, treats sanity as an exception to the general rule, because “ the testimony of witnesses on this subject will generally be in the shape of an opinion. But,” says he, “ they must detail the facts.” (p. 111.)

In Poole v. Richardson, 3 Mass. 330, the subscribing witnesses were-allowed to state their opinions of the soundness of the testator’s mind, and other witnesses were allowed to testify to his appearance, and to any facts from which the state of his mind might be inferred, “ but not to testify merely their opinions or judgments.”

A later case (Buckminster v. Perry, 4 Mass. 593) may tend to explain this ; for in that it appears that persons not professional, and not subscribing witnesses, stated their opinions. Parsons C. J., in charging the jury, remarked, that the question was confined to the-sanity of the testator at the time of making the will.

The Supreme Court of Pennsylvania held that facts, and opinions of sanity founded upon them, may, as to a testator, be received from any of his acquaintances. Rambler v. Tryon, 7 Serg. and Rawle, 90 ; Wogan v. Small, 11 Serg. and Rawle, 141.

Similar evidence was received some twenty years since, in the Circuit Court of the United States, as appears from the charge of Justice Washington, in Harrison v. Rowan, Wash. C. C. R. 580 ; and in New Jersey, on the trial of Mercer for the murder of Heberton, the same species of evidence was admitted, on argument. On the trial of Gardner, for the murder of Maria Buel, insanity was set up as a defence, and several of his neighbors testified that they did not consider him insane. Wright, 398.

These cases seem to sustain the court, and show that there was no error in overruling the objection to the evidence given by Win. Domi 494] gan, and the other nine nonprofessional witnesses. *The case of McKee v. Nelson, 4 Cowen, 356, supports the doctrine by strong analogy. It was held in that case that the opinion of a witness, that the plaintiff in an action for the breach of a marriage promise was sincerely attached to the defendant, was admissible. The court say— “ It is true, as a general rule, that witnesses are not allowed to give their opinions to a jury, but there are exceptions, and we think this one of them. There are a thousand nameless things indicating the existence and degree of the tender passion, which language can not specify. The opinion of witnesses on this subject must be derived from a series of instances passing under their observation, which yet they never could detail to the jury.”

Application refused,

       The following portions of the Charge to the Jury, by Judge Birchard, were reduced to writing, and approved by the other judges before delivery :
      “The statute defining the crime, is in these words: — ‘If any person shall purposely, and of deliberate and premeditated malice, kill another, every such person shall be guilty óf murder in the first degree.’ The words purposely, of deliberate and premeditated malice, as applied to the act of killing, have much meaning. Purposely implies an act of the will; an intention ; a design to do the act. It presupposes the free agency of the ac.tor. Deliberation and premeditation require action of the mind. They are operations of the intellectual faculties, and require an exercise of reason, reflection, judgment and decision, and can not happen in any case where the faculties of the mind are deranged, destroyed, or do not exist. The crime of murder in the first degree ■can, therefore, only be perpetrated by a free agent, capable of acting or of abstaining from action —free to embrace the right and to reject the wrong. He must have a sound intellect, capable of reason, reflection, premeditation, and under the control of the will. These words of the statute imply the legal principle upon which the counsel of the traverser have rested the main question of his defence. What, then, is the important fact for you to try, and how shall it be stated ? The varied and extensive learning which this trial has elicited from professional gentlemen of eminent attainments, and the authorities read in your presence, are sufficient to show the difficulty of the subject. But it is not insurmountable, if you will carefully consider, and fully comprehend the words used, and their connection with each other. The question may be safely stated to you thus: Was the accused a free agent in forming the purpose to kill Cyrus Sells ? Was he, at the time the act was committed, capable of judging whether that act was right or wrong ? and did ho know at the time that it was an offence against the laws of God and man ? If you say nay, he is innocent. If yea, and you find the killing- to have boon purposely, with deliberate and premeditated malice, he is guilty.
      In trying this question, you will bear in mind that the law presumes every person, of the age of fourteen years, to be of sufficient capacity to form the criminal purpose ; to deliberate and premeditate upon the acts which mal.i«e, anger, hatred, revonge, or other evil disposition might !iimpel him'to [495 perpetrate. To defeat this legal presumption, which meets the defence of insanity at the threshold, the mental alienation relied upon by the aceused must be affirmatively established, by positive or circumstantial proof. You must be satisfied, from the evidence, that the perverted condition of .the faculties ■of the mind, indicated in the main question which I have already stated as excusing from crime, did exist at the time Sells was killed.
      It is not sufficient if the proof barely shows that such a state of mind was possible; nor is it sufficient if it merely shows it to have been probable. The proof must be such as to overrule the legal presumption of sanity; it must satisfy you that he was not sane It would bo unsafe to let loose upon society great offenders upon mere theory, hypothesis or conjecture. A rule that would produce such a result -would endanger community, by creating a means of eseape from criminal justice, which the artful and experienced would, not fail to embrace. The defence of insanity is not uncommon. It is by no means a new thing in a court of justice; it is a defence often attempted to be made, more especially in cases where aggravated crimes have been committed, under circumstances which afford full proof of the overt acts, and render hopeless all other means of evading punishment. While, then, the plea of insanity is to be regarded as a not less full and complete, than it is a humane defence, when satisfactorily established, and while you should guard against inflicting the penalty of crime upon the unfortunate maniac, you should be equally careful that you do not suffer an ingenious counterfeit of the malady to furnish protection to guilt. Supposing that you should find the proof of insanity prior to, and subsequent to the homicide, sufficient, counsel have requested us to instruct you that the defendant must go acquit, even if you should find that the act was committed during a lucid interval. We do not so understand the law. An act done during a lucid interval, is an act for which the law will hold the individual accountable. By a lucid interval, we mean that state of mental sanity which is indicated in the main question that I have already stated to you. Proof of prior insanity throws upon the state the burden of proving the crime perpetrated during a lucid interval. It defeats the legal presumption of sanity, and creates a legal presumption of continued lunacy, which, like the former, must be satisfactorily overthrown by proof. This is its sole effect.
      What is a reasonable doubt?
      A verdict of guilty can never be returned without convincing evidence. The law is too humane to demand a conviction while a rational doubt remains in the minds of ft jury. Tou will be justified, and are required to consider a reasonable doubt as existing, if the material facts, without which guilt can not be established, may fairly be reconciled with innocence. In human affairs absolute certainty is not always attainable. Prom the nature of things reasonable certainty is all that can be attained on many subjects. When a full and candid consideration of the evidence produces a conviction of guilt, and satisfies the mind to a reasonable certainty, a mere captious or ingenious artificial doubt is of no avail. Tou will look, then, to all the evidence, and if that satisfies you of the defendants’s guilt, you must say so. If you are not fully satisfied, but find only that there are strong probabilities of guilt, your only safe course is to acquit.