* N. W. 427, the court said: "It is recognized in the law that the defense of alibi is one easily manufactured, and jurors are generally and properly advised by the courts to scan the proofs of an alibi with care and caution. * * That this proposition is correct there can be no doubt. It accords with the observation of every one of experience in criminal trials. Besides, there can be no prejudice in cautioning the jury to closely and carefully scan the proof in every case." There was no prejudice to the defendant in such instructions. So, in the case of Miller v. People, 39 Ill. 457: "Failing to prove an alibi should have no greater weight to convince a jury of the guilt of the prisoner attempting it than the failure to prove any other important item of defense. A prisoner is entitled to rely on the facts in his favor, he may suppose he is able to prove, and if he is so unfortunate as to fail in his proof, it should not, generally speaking, operate to his prejudice. Proof of an alibi is a defense as legitimate as any other, and the court should not say, lest it prejudice the minds of the jury, that failing to establish it, should have great weight against the prisoner." CHAPTER XIV. EVIDENCE OF INSANITY AND INTOXICATION. § 154. Mental capacity to know right § 162. Non-expert must relate in eviand wrong as a test of in sanity. 155. Uncontrollable impulse and insane delusions. 156. Presumption of continuance of insanity. 157. Burden of proof to show san ity and insanity. 158. Proof of insanity beyond a reasonable doubt not required. 159. The character and range of evidence to show insanity. 160. Evidence showing the appearance, conduct and language of the accused after the crime-Evidence of insanity in family of accused. 161. Non-expert evidence. dence facts on which his impression is based-Degree of knowledge required. 163. Expert evidence-What con- 164. Evidence of voluntary intoxi- 166. Evidence of intoxication as 168. Morphine habit. § 154. Mental capacity to know right and wrong as a test of insanity. Every man is presumed by the law to be sane and responsible for his actions until the contrary appears. The authorities are by no means harmonious as regards the amount, quality or degree of proof which will be required to overcome this presumption. But the tendency of the most recent cases is to give the prisoner, who pleads insanity as a defense, every reasonable opportunity to secure an acquittal by the employment of the means which modern scientific investigation, into the domain of mental disease, has placed within his reach. The accused must, however, according to a large majority of the cases, prove that "he was laboring under such a defect of reason from disease of the mind as not to know" (i. e.. as not to have sufficient mental capacity to know) "the nature and quality of the act he was do ing; or, if he did know it, that he did not know he was doing wrong." This rule, which has been followed by a majority of the cases in America, may be considered as a settled rule regulating the degree of mental derangement which must be shown in a criminal trial to overcome the presumption of sanity." 1 This is the rule laid down in McNaghten's Case in 1843, 10 Cl. & F. 200; 1 C. & K. 130; 8 Scott N. R. 595. In that case the court said: "The jurors ought to be told in all cases that every man is to be 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; and that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong." Again, in Moett v. People, 85 N. Y. 373, 380, the court, by Earl, J., said: "The laws of God and the land are the measure of every man's act and make it right or wrong, and it is right or wrong, as it corresponds with such laws. When it is said that a prisoner must, at the time of the alleged criminal act, have sufficient capacity to distinguish between right and wrong with respect to such act, it is implied that he must have sufficient capacity to know whether such act is in violation of the law of God or of the land, or of both. It is not the duty of the trial judge to present the matter to the jury in every possible phase and in every form of language which the ingenuity of counsel can devise." * Mangrum V. Commonwealth (Ky.), 39 S. W. 703, 19 Ky. L. 94; Mackin v. State, 59 N. J. L. 495, 36 Atl. 1040; People v. Riordan, 117 N. Y. 71, 75, 22 N. E. 455; People v. Downs, 123 N. Y. 558, 565, 25 N. E. 988; Tiffany v. Commonwealth, 121 Pa. St. 165, 180, 15 Atl. 462, 6 Am. St. 775; Rudy v. Commonwealth, 128 Pa. St. 500, 18 Atl. 344; Howard v. State, 50 Ind. 190; State v. Wingo, 66 Mo. 181, 183, 186, 27 Am. 329; Ogletree v. State, 28 Ala. 693; Tweedy v. State, 5 Iowa 433; State v. Flye, 26 Me. 312; People v. Potter, 5 Mich. 1, 7, 71 Am. Dec. 763; Dale v. State, 10 Yerg. (Tenn.) 550; Goodwin v. State, 96 Ind. 550, 560; Conway v. State, 118 Ind. 482, 490, 21 N. E. 285; Plake v. State, 121 Ind. 433, 435, 23 N. E. 273, 16 Am. St. 408; Willis v. People, 32 N. Y. 715, 719; People v. Taylor, 138 N. Y. 398, 406, 34 N. E. 275; State v. Harrison, 36 W. Va. 729, 744, 755, 15 S. E. 982; Flanagan v. People, 52 N. Y. 467, 469, 470, 11 Am. 731; People v. Carpenter, 102 N. Y. 238, 250, 6 N. E. 584; State v. Alexander, 30 S. Car. 74, 84, 8 S. E. 440, 14 Am. St. 879; United States v. Holmes, I Clif. (U. S.) 98, 26 Fed. Cas. 15382; State v. Pagels, 92 Mo. 300, 314, 4 S. W. 931; State v. Hockett, 70 Iowa 442, 30 N. W. 742; Leache v. State, 22 Tex. App. 279, 308, 3 S. W. 539, 58 Am. 638; State v. Nixon, 32 Kan. 205, 211, 212, 4 Pac. 159; State v. Brandon, 8 Jones (N. Car) 463, 467, 468; People v. Hoin, 62 Cal. 120, 45 Am. 651; State v. Lawrence, 57 Me. 574, 577, 581; Commonwealth v. Gerade, 145 Pa. St. § 155. Uncontrollable impulse and insane delusions.-Some recent cases have departed from this rule. This repudiation of the right and wrong test is, doubtless, due to the desire of the judges to harmonize the legal rules which determine what facts must be proved as a necessary basis for an inference of insanity with the views of the medical profession. In almost every trial where sanity is an issue, medical witnesses are produced, who, viewing the question of sanity from a medical standpoint, give evidence tending to set up some other test than that of a capacity to distinguish and to choose between right and wrong. It is well recognized that the moral sense is highly developed in many whose mental powers are greatly impaired, and that some faint gleam of moral judgment may be discovered, even in the most idiotic. The medical treatment of the insane in asylum proceeds largely upon the theory that the majority of such persons possess the capacity to distinguish between right and wrong, and the testimony of medical witnesses is very apt to be colored thereby and to lead the jury to believe that other elements, than a capacity to judge of the moral character of the act, are to be considered in determining if the accused was insane. Thus, it is said, that though the accused may have been capable of appreciating the moral character of his act, and may have been able to choose the right and to avoid the wrong, yet he should be absolved from punishment for his act if. knowing it was wrong, he was prompted to do it by some uncontrollable or irresistible influence, or was under some insane delusion that made him choose the wrong in preference to the right. 289, 296, 22 Atl. 464, 27 Am. St. 689; Armstrong v. State, 30 Fla. 170, 205, 11 So. 618, 17 L. R. A. 484n; Jamison v. People, 145 Ill. 357, 34 N. E. 486; State v. Murray, 6 Cr. L. Mag. 255; State v. Spencer, 21 N. J. L. 196, 206; Genz v. State, 59 N. J. 488, 37 Atl. 69, 59 Am. St. 619; Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am. 193; Green v. State, 64 Ark. 523, 43 S. W. 973; State v. Swift, 57 Conn. 496, 18 Atl. 664; Lee v. State, 116 Ga. 563, 42 S. E. 759; Hornish v. People, 142 Ill. 620, 32 N. E. 677, 18 L. R. A. 237; State v. Arnold, (Kan. 1909) 100 Pac. 64; State v. O'Neil, 51 Kan. 651, 33 Pac. 287, 24 L. R. A. 555; State v. Lewis, 20 Nev. 333, 23 Pac. 241; Feople v. Taylor, 138 N. Y. 398, 34 N. E. 275; People v. Farmer, 194 N. Y. 251, 87 N. E. 457; Maas v. Territory, 10 Okla. 714, 63 Pac. 960, 53 L. R. A. 814; Bennett v. State, 57 Wis. 69, 14 N. W. 912, 46 Am. 26; United States v. Chisholm, 153 Fed. 808; State v. Craig (Wash), 100 Pac. 167; State v. Barker, 216 Mo. 532, 115 S. W. 1102; Thomas v. State (Tex. Cr. App. 1909), 116 S. W. 600. After the jury have heard such a statement from a medical witness, they are extremely apt to be puzzled by a seemingly contradictory instruction setting up the right and wrong test. Accordingly many of the cases have held that though the evidence shows the defendant had capacity to know the right from the wrong in that particular case, yet, if from the facts it appears that he was acting under an irresistible impulse preventing the choosing of the right or compelling wrong-doing, he should be acquitted.3 156. Presumption of continuance of insanity.-No presumption of law is recognized that insanity proved to exist is always continuous down to the date of the crime. The presumption is one of fact, and clearly the continuance of the insanity depends entirely upon the nature of the mental malady. Insanity is undoubtedly often chronic and permanent. This is the case in congenital mental infirmity, as idiocy, or in senile dementia, and it may require very clear proof to overcome the presumption that such insanity is continuous. If there is proof that the accused had been insane since childhood, he is entitled to an instruction that if he were insane at any time before the commission of the crime, his insanity was presumed to continue, and that the burden is on the state to show that he became sane and was so when he committed the crime. But the reverse is true where insanity is the result of delirium, ensuing from physical disease or indulgence in intoxicants. The circumstances of each case should be considered, and the matter is wholly for the jury to determine whether a mental condition shown to exist continued down to any specific later period. Where an insane person has lucid intervals, and no proof 5 * Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am. 193n (leading case); State v. Jones, 50 N. H. 369, 9 Am. 242; Leache v. State, 22 Tex. App. 279, 3 S. W. 539, 58 Am. 638; Dacey v. People, 116 Ill. 555, 556, 6 N. E. 165; State v. Felter, 32 Iowa 49; Plake v. State, 121 Ind. 433, 435, 23 N. E. 273; but cf. Grubb v. State, 117 Ind. 277, 280, 20 N. E. 257, 725. 'State v. Reddick, 7 Kan. 143, 151; Goodwin v. State, 96 Ind. 550, 560; Wagner v. State, 116 Ind. 181, 187, 18 N. E. 833; State v. Snell, 46 Wash. 327, 89 Pac. 931, 9 L. R. A. (N. S.) 1191, 35 L. R. A. 117 note. Allams v. State, 123 Ga. 500, 51 S. E. 506; Wooten v. State, 51 Tex. Cr. App. 428, 102 S. W. 416. "Armstrong v. State, 30 Fla. 170, 204, 11 So. 618, 17 L. R. A. 484n; Langdon v. People, 133 Ill. 382, 24 N. E. 874; State v. Wilner, 40 Wis. 304; State v. Reddick, 7 Kan. 143, 151; State v. Lowe, 93 Mo. 547, 5 S. W. 889; Whart. Cr. L., § 56. It is only |