§ 159. The character and range of evidence to show insanity.Evidence to show insanity is not confined to evidence of the mental condition of the accused at the instant of the act, though whatever facts are adduced must tend to show his mental state at that moment. Mind can only be known by outward acts. By these we read the thoughts, the motives and the emotions, and as one's acts conform to the practice of people of sound mind or contrast therewith we form our judgment of sanity. Evidence is competent to prove conduct and language at various times and places indicating an unhealthy mental condition, and the more extensive the view, the safer is the determination reached. It is proper to allow considerable latitude in the examination of the witness.17 Every fact which shows or tends to show that the mental or physical condition of the accused was abnormal at the date of the crime, is competent.18 Thus, a witness may testify that on a certain occasion when the accused was in his presence, his actions were unusual, peculiar or unnatural, and that he talked disconnectedly and appeared absent minded.20 The evidence in point of time may cover an extensive period; the family history of the accused, his relations with the deceased in the case of a homicide and his actions towards the deceased are relevant. In the case of a homicide, where the relations of the deceased with the wife of the accused were of such a character that they might reasonably affect the nervous or mental condition of the accused, those relations may be thoroughly inquired into.21 Under the above rule, it has been repeatedly held that evidence of the mental condition of the accused prior and subsequent to the crime,22 and of his conduct at the time of the crime, and within a reasonable period before and after it,23 is competent. All the previous mental and physical history of the accused is relevant where insanity is the defense as an inference of insanity must rest upon many facts.24

oner is sane, or not, he is entitled to the benefit of the doubt, and to an acquittal."

17

19

19 Braham v. State, 143 Ala. 28, 38 So. 919.

20 Braham v. State, 143 Ala. 28, 38

Dejarnette v. Commonwealth, 75 So. 919. Va. 867.

18 State v. Porter, 213 Mo. 43, III S. W. 529, 127 Am. St. 589; People v. Brent (Cal. App., 1909), 106 Pac.

110.

20-UNDERHILL CRIM. Ev.

21 State v. McGowan, 36 Mont. 422, 93 Pac. 552.

84

22

23

People v. Koerner, 191 N. Y. 528, N. E. 1117.

People v. Willard, 150 Cal. 543, 89 Pac. 124.

"Guiteau's Case, 10 Fed. 161, 167.

It may always be shown that he was insane prior to the crime,25 and, though this fact is never conclusive of his insanity at the date of the crime, it may be received as tending to render the truth of independent evidence of that fact more probable.26 The evidence of the insanity or mental weakness of the accused prior to the crime ought to be rejected if too remote in point of time. So where accused who has reached adult years pleads insanity evidence tending to show that when he was a child he was mentally weak ought to be rejected.27

§ 160. Evidence showing the appearance, conduct and language of the accused after the crime-Evidence of insanity in family of accused. The appearance and conduct of the accused while testifying may be considered by the jury, 28 aided by the opinions of experts thereon. The hideous, unnatural and barbarous character of the crime, or the absence of adequate motive, though either may be shown and be considered by the jury," does not alone justify an inference of insanity.30 The demeanor of a prisoner after a homicide perpetrated by him, his coolness and lack of regret for his act, his physical appearance and condition, his language showing a motive or the lack of one, his attempt to conceal his crime or to escape, or his open boast that he committed the homicide and the reason for it, may be proved to show his mental condition. None of these facts is conclusive however, and the

25

People v. Wood, 126 N. Y. 249, 257, 27 N. E. 362, 365; United States v. Guiteau, 10 Fed. 160, 172; People v. Manoogian, 141 Cal. 592, 75 Pac. 177; Pratt v. State, 50 Tex. Cr. App. 227, 96 S. W. 8; Braham v. State, 143 Ala. 28, 38 So. 919; People v. Willard, 150 Cal. 543, 89 Rep. 124; State v. Porter, 213 Mo. 43, III S. W. 529; 127 Am. St. 589; People v. Koerner, 191 N. Y. 528, 84 N. E. 1117. Evidence that the accused was or is weak minded or easily influenced should not be received when insanity is not the defense. State v. Flowers, 58 Kan. 702; 50 Pac. 938. See, also, as to evidence of the fantastic and ridiculous conduct of the accused while a girl at

31

Indeed

jury may discredit them and find the accused guilty. isolated facts are of little weight to prove insanity if a person has been generally considered sane, for it may be that the peculiar or eccentric conduct was caused otherwise than by mental weakness. Thus, if the insanity is claimed to have been the result of epilepsy, and the accused states that he frequently fell to the ground in a fit and lay for some time unconscious, the state may be permitted to produce witnesses who knew him well and who had often seen him in a drunken stupor.32 The conversations and the declarations of the accused uttered within a reasonable period before or after the crime are admissible to show his mental condition at the date of the crime.33 The length of the period within which evidence to show the sanity or insanity of the accused may be permitted depends on the circumstances of each particular case. If it is alleged by the accused that his insanity existed for a long period before the crime and it is apparently of a permanent character, his sanity may be shown by any relevant conduct or conversations within the same period. In one case, the state was permitted to prove conduct and conversations which impressed witnesses as being entirely rational which occurred a year before the crime.3

34

The jury may consider the cunning and sagacity displayed by the accused in planning the crime, the promptitude and courage shown in using a deadly weapon and the skill exhibited in effecting an escape. Evidence that the accused was generally reputed, prior to the commission of the alleged crime, to be of unsound mind is not admissible, being hearsay merely.35 It may be shown

31 Commonwealth v. Gerade, 145 Pa. St. 289, 297, 22 Atl. 464, 27 Am. St. 689; State v. Jones, 64 Iowa 349, 354, 17 N. W. 911, 20 N. W. 470; Sanchez v. People, 22 N. Y. 147; Feople v. Thurston, 2 Park. Cr. (N. Y.) 49; Jacobs v. Commonwealth, 121 Pa. St. 586, 15 Atl. 465, 6 Am. St. 802; People v. Koerner, 191 N. Y. 528, 84 N. E. 1117, aff'g 117 App. Div. (N. Y.) 40, 102 N. Y. Sup. 93. See §§ 116-120. Commonwealth v. Buccieri, 153 Pa. St. 535, 26 Atl. 228.

82

33

Brinkley v. State, 58 Ga. 296; People v. Pico, 62 Cal. 50; Walker v. State, 102 Ind. 502, 507, I N. E. 856; State v. Hoyt, 47 Conn. 518, 36 Am. 89n: Choice v. State, 31 Ga. 424. Cf. State v. Leuth, 5 Ohio C. C. 94, 2 Greenl. § 371; State v. Church, 199 Mo. 605, 98 S. W. 16; Womble v. State, 39 Tex. Cr. App. 24, 44 S. W.

36

that an ancestor or the progeny of the accused was insane if there is independent evidence directly tending to show he is insane, but evidence of the insanity of collateral relations is irrevelant," and evidence of insanity in an ancestor may be excluded, if it is not also shown that the insanity was hereditary.88 The cause of such insanity is always relevant to prove it was not hereditary.3

39

In proving hereditary insanity, the practice is to permit witnesses who were acquainted with the ancestor of the accused to testify orally to his peculiar and irrational actions, and then to testify that, in the opinion of the witness, based upon such peculiar conduct, the ancestor in question was insane. In other words, a non-expert witness may testify to the insanity of an ancestor of the accused from his opinion based on the same class of facts and in the same manner that he may testify to the insanity of the accused himself. It is not permissible, however, for a witness, though she be the wife or other relation or a friend of the accused, to testify orally that an ancestor of the accused had been adjudged insane; this is not the best evidence. The record must be produced. Nor can the fact of the insanity of the accused be proven as a matter of family pedigree by the testimony of a witness or the declarations of the relatives of the accused to his insanity. The kindred of the accused who are in a position to prove his insanity must be produced as witnesses.11

40

§ 161. Non-expert evidence.-By the weight of authority, a nonexpert witness who has had adequate means of becoming ac

37 State v. Soper, 148 Mo. 217, 49 S. W. 1007.

827; Demaree V. Commonwealth 9, 17, 97 Am. Dec. 162n; Common(Ky.) 91 S. W. 1131; 28 Ky. L. R. wealth v. Johnson, 188 Mass. 382, 74 1374; Porter v. State, 140 Ala. 87, 37 N. E. 939; Watts v. State, 99 Md. So. 81; People v. Koerner, 154 N. Y. 30, 57 Atl. 542. 355, 48 N. E. 730; Parrish v. State, 139 Ala. 16, 36 So. 1012; People v. Barthleman, 120 Cal. 7, 52 Pac. 112; State v. Lagoni, 30 Mont. 472, 76 Pac. 1044; State v. Penna, 35 Mont. 535, 90 Pac. 787; State v. Speyer, 194 Mo. 459, 91 S. W. 1075.

30 Shaeffer v. State, 61 Ark. 241, 32 S. W. 679; Hagan v. State, 5 Baxt. (Tenn.) 615, 618; Guiteau's Case, 10 Fed. 161; People v. Garbutt, 17 Mich.

38 Walsh v. People, 88 N. Y. 458; State v. Quigley, 26 R. I. 263, 58 Atl. 905, 67. L. R. A. 322.

* State v. Hoyt, 47 Conn. 518, 36 Am. 89n.

40 State v. Steidley, 135 Iowa 512, 113 N. W. 333.

"People v. Koerner, 154 N. Y. 355, 48 N. E. 730.

42

quainted with the mental state of a person whose sanity is in issue may give his opinion upon the question whether such person was insane at the time of a specific occurrence which is also in evidence. Thus, for illustration, an attorney who has acted in a professional capacity for the accused may testify as to his conduct, whether rational or irrational at a particular time. So, an official stenographer who was present and took down the testimony of the accused at a trial in which the accused was a defendant may state whether or not the answers of the accused impressed him as rational or otherwise. And it is immaterial, under such circumstances, that the stenographer prior to the trial was not personally acquainted with the accused, and that his opinion as to the rational character of the answers of the accused was based solely upon the

42 State v. Williamson, 106 Mo. 162, 171, 17 S. W. 172; Phelps v. Commonwealth (Ky.), 32 S. W. 470, 17 Ky. L. 706; Pflueger v. State, 46 Neb. 493, 64 N. W. 1094; Genz v. State, 59 N. J. L. 488, 34 Atl. 816, 59 Am. St. 619; People v. Strait, 148 N. Y. 566, 42 N. E. 1045; Dove v. State, 3 Heisk. (Tenn.) 348, 367; State v. Maier, 36 W. Va. 757; Schlencker v. State, 9 Neb. 241, 251, 1 N. W. 857; Sage v. State, 91 Ind. 141, 143; Armstrong v. State, 30 Fla. 170, 201, 11 So. 618, 17 L. R. A. 484n; Bolling v. State, 54 Ark. 588, 16 S. W. 658; McClackey v. State, 5 Tex. App. 320; Wood v. State, 58 Miss. 741, 743; People v. Levy, 71 Cal. 618, 623; State v. Hayden, 51 Vt. 296; Clark v. State, 12 Ohio 483, 487, 40 Am. Dec. 481; People v. Conroy, 97 N. Y. 62; Holcombe v. State (Ga. App.), 62 S. E. 647; State v. Banner, 149 N. Car. 519, 63 S. E. 84; Atkins v. State (Tenn.), 105 S. W. 353; Taylor v. United States, 7 App. Cas. D. C. 27; People v. Manoogian, 141 Cal. 592, 75 Pac. 177; Leaptrot v. State, 51 Fla. 57, 40 So. 616; Watts v. State, 99 Md. 30, 57 Atl. 542; Lowe v. State, 118 Wis. 641, 96 N. W. 417; People v. Koern

er, 191 N. Y. 528, 84 N. E. 1117, aff’g 117 App. Div. (N. Y.) 40, 102 N. Y. S. 93; State v. Beuerman, 59 Kan. 586, 53 Pac. 874; State v. Montgomery, 121 La. 1005, 46 So. 997; Rice v. State (Tex. Cr. App.), 112 S. W. 299; State v. Bell, 212 Mo. III, III S. W. 24; State v. Bronstine, 147 Mo. 520, 49 S. W. 512; Byrd v. State, 76 Ark. 286, 88 S. W. 974; Burton v. State, 51 Tex. Cr. App. 196, 101 S. W. 226; People v. Clark, 151 Cal. 200, 90 Pac. 549; State v. Penna, 35 Mont. 535, 90 Pac. 787; Commonwealth v. Wireback, 190 Pa. St. 319, 42 Atl. 542, 70 Am. St. 625; State v. Shuff, 9 Idaho 115, 72 Pac. 664; Parrish v. State, 139 Ala. 16, 36 So. 1012; Glover v. State, 129 Ga. 717, 59 S. E. 816; Porter v. State, 140 Ala. 87, 37 So. 81; Kroell v. State, 139 Ala. 1, 36 So. 1025; Braham v. State, 143 Ala. 28, 38 So. 919; State v. Berberick (Mont.), 100 Pac. 209. See, also, Hardy v. Merrill, 56 N. H. 227, 22 Am. 441, and Commonwealth v. Pomeroy, 117 Mass. 143, overruling earlier cases, contra. Patterson v. State, 86 Ga. 70.

43 Bishoff V. Commonwealth, 123 Ky. 340, 96 S. W. 538, 29 Ky. L. 770.