Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volume 36 online

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alleged that he was insane at the time the homicide was committed.
The insanity of defendant was the only defense relied upon in the
trial court, and a reversed of the judgment is sought mainly upon
alleged error committed by the court in its charge given to the
jury, and in refusing to give the declarations of law asked by

The charge complained of is as follows: ''As a defense to this
prosecution the defendant by his counsel has interposed the plea of
insanity. He says that the act which he is alleged to have com-
mitted is not an act for which he can be held criminally responsi-
ble, in other words, that the act was and is excusable in law,
because at the time of its commission, as charged, he was insane.

*'The term 'insanity,' as used in this defense, means such a

Digitized by


OCTOBER TERM, 18:9. 463

State V. Redemeier.

perverted and deranged condition of the mental and moral facul-
ties as renders a person incapable of distinguishing between right
and wrong, and makes him unconscious at times of the nature of
the act he is about to commit. Such insanity, if proved to the*
reasonable satisfaction of the jury to have existed at the time of
the commission of tlic act, is in law an excuse for it, however brutal
or atrocious it may have been.

'*The law presumes ever}' person to be of sound mind until the
contrary is shown, and when, as in this case, insanity is interposed
as a defense, the fact of the existence of such insanity at the time
of the commission of the offense charged must be established by the
evidence to the reasonable satisfaction of the jury, and the burden
of proving this fact rests with the defendant

" The opinions on questions of insanity which have been given by
the medical experts are testimony before you, and are subject to the
same rules of credit or discredit as the testimony of other witnesses.
The opinions neitlier establish nor tend to establish the truth of the
facts upon which they are based. Whether the matter testified to
by the witnesses in the cause as facts is true or false is to be de-
termined by the jury alone. Neither arc the hypothetical questions
put to the medical experts by the counsel in the cause evidence of
ilio truth of the matters stated in these questions.

** Although the jury may believe and find from the evidence that
tiie defendant did commit the act charged against him, yet if they
further find that at the time he did so he was in such an insane
condition of mind tliat ho could not distinguish between right and
wrong, then such act was not malicious, and the jury should acquit
him of the crime charged on the ground of insanity and so say in
their verdict.

"To establish his insanity, positive or direct testimony is not re-
quired. Circumstantial evidence which reasonably satisfies the
minds of the jury that the defendant was, at the time the alleged
shooting was done, incapable of distinguishing between right and
wrong, or of comprehending the nature of the act, will be suflBcient

*' The jury are the sole and exclusive judges of the degree of credit
which shall be given to the testimony in the case, and have the right
to receive and credit as true, or to reject and discredit as untrue,
the whole or any pare of the testimony of any witness in the case.
If after the jury have carefully taken into account and considered
All the evidence in the case, there remains in their minds a reason*

Digitized by



State V. Redemeler.

able doubt of the guilt of the defendant, the law, in its humanity,
gives to him the benefit of that doubt, and they should acquit
But, to authorize an acquittal on the ground of doubt alone, such
doubt should be reasonable and substantial, and not a mere guess
or conjecture of his * probable innocence.' "

The objections urged to the above charge are that it does not
properly define insanity, and that the rule as to the burden of proof
when the defense is insanity, and the degree of proof sufficient to
authorize a jury to find insanity, is not correctly stated. Testing
these objections by repeated decisions of this court, it will be found
that they are not well taken. These decisions, we think, clearly
establish that the law presumes every person who has reached the
years of discretion to be of sound mind and capable of committing
crime, and that such a person, charged with the commission of
crime, before he can escape the penalty affixed thereto, under the
plea of insanity, must rebut such presumption by evidence which
reasonably satisfies the jury that he was insane at the time the act
was committed, or that his mind was so diseased as to render him
incapable of distinguishing between right and wrong in respect to
the act for which he is sought to be made criminally responsible;
tliat the question of insanity is one of fact to bo determined by the
jury, and tliat when the unlawful killing is proved by the State or
admitted by the accused, the State may rest upon the legal pre-
sumption of the sanity of the accused till he shows the contrary ;
that the burden of proving insanity rests upon the party setting it
up, and that to discharge himself of this burden, it is not necessary
to introduce evidence which establishes, beyond a reasonable doubt,
his insanity, but only sufficient to reasonably satisfy the jury that
it existed at the time the offense was committed ; that if the pre-
ponderance of the evidence offered establishes insanity, it is
sufficient. Baldwin v. State, 12 Mo. 223 ; State v. Hating, 21 id.
464 ; State v. McCoy, 34 id. 531; State v. Klinger, 43 id. 127; State
V. Hundley, 46 id. 414; State v. Smith, 53 id. 267; State v. Holme,
54 1(3. 153; State v. Simms, 68 id. 305. In the case of the State v.
McCoy, supra, it was held '* that it is incumbent on the State to
prove every fact necessary to establish the crime of murder, which
necessarily includes the sanity of the prisoner; but the burden of
proving such sanity of the prisoner is fully met by the presumption
of law that every person is of sound mind until the contrary
appears ; and he who undertakes to escape the penalty of the law

Digitized by


OCTOBER TERM, 1879. 465

State ▼. Redemeier.

by meaDs of the plea of insanity mast rebut each presumption by
proof entirely satisfactory to the jury. It is a defense to be made
out by the prisoner, and by proof that will satisfy the jury that he
was incapable of distiuguishing between right and wrong.'' The
instructions of the court as to the burden of proof of insanity and
the quantum of evidence to establish it are justified, not only by the
case last cited, but by all the cases hereinbefore cited.

It is also insisted that the capacity of defendant to distinguish
between right and wrong was the only test laid down by the court
in its charge for the guidance of the jury in determining the ques-
tion of insanity, and that, for this reason, it is erroneous. If the
charge means that, and nothing more, the court would have been
authorized to give it under the authority of the case last cited, and
2 Greenl. Ev., § 373 ; Sex v. McNaghten, 10 01. & Fin. 200 ; Rex
V. Offord, 5 C. & P. 168; CanimontoeaUh v. Hosier, 4 Barr. 267 ;
Freeman v. PeopUy 4 Den. 9. But we think the construction
placed by counsel on the instruction is too narrow, and that the
capacity of defendant to distinguish between right and wrong was
not the sole and only test by which the jury were to be governed in
determining the criminal responsibility of defendant, because they
were expressly told that if defendant was incapable of compre-
hending, or was unconscious of the nature of the act at the time
he committed it, they should acquit.

It is also earnestly and ably argued by counsel that the rule as to
the degree of evidence necessary to establish insanity, as adopted
in this State, should be modified and made to conform to the rule
laid down in the case of State v. Crawford, 11 Kans. 32, and other
cases in Illinois, Indiana and New Hampshire, of which the case
of State V. Crawford is a type. The rule approved in that case is
that whenever the defense offers evidence which raises a reason-
able doubt as to the insanity of the accused, that is sufiScient to
rebut the presumption of sanity and to authorize an acquittal.

As to the degree of evidence which the accused is required to
offer to establish the fact of insanity, the authorities are so con-
flicting as to be irre^'^cilable. It is held by some courts of the
highest authority, botn in this country and England, that insanity,
when set up as an excuse for the crime charged, should be estab-
lished by evidence sufficient to satisfy the minds of the triers of
the fact beyond a reasonable doubt, that it existed at the time the
act was committed. The conclusion reached in this class of cases
Vol. XXXVI— 59

Digitized by



State V. Redetneier.

is based apon the theory that in every criminal case two presump-
tions of law are indulged — one in favor of the person charged,
that he is innocent of the charge — the other in favor of the pub-
lic, that the accused., if of the years of diseretiou, is of sound mind
and capable of committing crime, and that as the presumption of
innocence protects the accused till the State, by evidence, estab-
lishes his guilt beyond ;i reasonable doubt, so the presumption that
he was sane when the act was committed protects society till it is
overthrown by n like degree of evidence offered in support of the
plea of insanity.

While 8omo courts have gone to tliis extreme, others of high au-
thority have gone to the other extreme of holding, that to support
the plea of insanity, it is only necessary that the evidence offered
should be sufficient to raise a doubt as to the insanity of the ac-
cused. Other courts, equally authoritative and much greater in
number, acting on the principle that in medio iutissimus est, have
adopted a rule lying between these two extremes, holding that the
defense of insanity is established when the evidence offered in sup-
port of it preponderates in favor of the fact, and reasonably satis-
fies the jury that it existed at the time the criminal act charged
was committed. The rule last referred to has been the established
law of this State since the case of Baldwin v. Staie, supra, was
decided, and believing that it is sustained not only by reason, but
by the weight of authority, both in this country and England, we
are unwilling to make a departure from it. The fact that insanity
is so easily simulated demonstrates the wisdom of the rule and
affords a strong reason why we should adhere to it, and decline to
adopt the rule contended for by defendant's counsel, the tendency
of which, in my judgment, would be to stimulate, rather than re-
press homicidal mania. It follows from what has been said that
the charge given to the jury on behalf of the State is not subject
to the objections urged against it, and it also follows that the court
properly refused the instructions of defendant, which asked the
court to lay down a rule for the guidance of the jury in determin-
ing the question of insanity at variance with the rule above
announced as settled in this State. The instructions asked by de-
fendant m regard to the test to be applied in determining the
insanity of the defendant having been already substantially given,
were for that reason properly refused.

[Omitting a minor question.]

Digitized by


OCTOBER TERM, 1879. 467

State V. Redemeier.

Perceiving no error either in giving or refusing instructions o*
in admitting or rejecting evidence, the judgment is affirmed, in
which Judges Sherwood, Hough and NAi»Toy concur, and Judge
IIkxry dissents.

NoTEBY THK Rkpoutku.— ilKxriY, J., (llssont inj?. observed: "I cannot concur In the
foregoing opinion, and will brietly stnit> my rcnsoiis for dissenting. The allegation, that
defendant willfully, delibenitily and pitinietliiaitHlly rununitted tlie homicide for which he
i« indicted, includes the allftealioii thai he had a inind capable of willing, deliberating and
premeditating. WillfulnesK, pivineditatlon ami deliberation are constituent elements of
murder, and nono but a suno ihm-mou can commit tliat, or any other crime. Homicide isnot
necessarily a crime, for one may kill in self-defense, or by accident, or iu a state of mental
aberration . If the State proves the killing, she is not also required to prove that it was not in
self-defense, or not the result of acx;ident; but when defendant has proven enough to raise
a reasonable doubt whether It was iu self-defense, or accidental, the State must show, not
by a mere preponderance of evidence, but beyond a reasonable doubt, that It was not acci-
dental or in self-defense; and ft is difficult to perceive a reason, why the same principle Is
not equally applicable to the issue of sanity nmde by the plea of not guilty. It is true that
the law presumes every one to be sane, and therefore the State is not requhred toiutroduce
evidence of the sanity of the accused except in rebuttal. The sanity of defendant is as
much in issue as the homicide; and although the law presumes certain facts to exist when
certain other facts are proven, yet in a criminal case, when the fact presumed fsdisproved,
or sufficient evidence is adduced to warrant a reasonable doubt of its existence, the pre-
sumption ceases. To say that only a sane person can be guilty, and declare the law to be,
that the State must establish defendant's guilt beyond a reasonable doubt, and yet that
unless defendant establishes his insanity by a preponderance of evidence, the jury should
convict, is a palpable contradiction . If one accused of murder admit the homicide and all
lege that it was an accident, it is for him to make that appear, but if he introduce evidence
tending to prove that fact sufficient to beget in the minds of the jury a reasonable doubt
that the killing was intentional, the benefit of that doubt he is entitled to by law. What
is the substance of the defense in either case? Simply, that although the homicide was
committed by the defendant, his mind did not concur in the act; and yet in the case of the
one who admits his sanity, he has the benefit of a reasonable doubt that the act had the
assent of his mind, while it is urged tliat the other, who alleges his insanity, shall not have
the benefit of a reasonable doubt, but must prove by a preponderance of evidence, a state
of facts showing that the mind did not concur. The distinction has no reasonable founda-
tion for its support. If a jury are to acquit on a reasonable doubt of defendant's guilt, and
one cannot be grullty if insane, by what process of reasoning will a jury, having a reason-
able doubt of defendant's sanity, come to the conclusion that they should convict notwith-
standing the instruction that a reasonable doubt of his guilt entitles him to an acquittal?
A man whose thinking is not regulated by artificial rules would not hesitate to acquit
under such circumstances, and it would require a most refined and ingenious argument to
demonstrate to him that he could convict without disregarding that instruction. But it
is said that the law presimies him sane, and that this prraumption deprives the accused of
the benefit of a reasonable doubt as to his sanity. The one proposition Is based upon the
fact that sanity is the normal condition of the human mind, and that insanity is excep-
tional and abnormal. The other presumption is In favor of life and liberty. The former
presumption has no effect but to relieve the State, in the first instance, from making any
proof on the subject, holding that the fact that the accused is a human being dispense*
with proof of his sanity, because that is the normal condition of human beings. It simply
reverses the order, not the burden, of proof. It presumes the accused sane, but requires
him to make no more proof of his insanity than of any other fact which he relies upon for
his acquittal of the crime he is charged with. The one presumption does not destroy the
other, as to any fact which must be found to exist in order to a conviction. I cite no 9M-
thorities in support of these propositions, but they are numerous and respectable.**

In Bacdffalupo v. Common^vealth^ 83 Oratt. 817, it was held that ^' in defense to a orimi"

Digitized by



International Bank t. Qennan Bank«

nal prosecution, upon the ground of in8anit}\ it is not sufllcient that the evidence ahoold
be of 8uch a character only an to produce a doubt on the minds of the Jury, but the onus pro-
bandi is always on the accused to prove such insanity to tlieir satisfaction/' The court
said: " In BosweWs case, 20 Gratt. 8d0, one of the grounds of error assigned was that the
court in Uiat case gave to the Jury the following instruction, to wit: *That every man is
presumed to be sane and to pottaess a sufficient degree of reason to be responsible for his
crimes until the contrary is proved to the satisfaction of the Jury. * In commenting upon
this instruction, the president of this court said: ' I thinlc this instruction is unexceptiona-
ble. * * * He (the counsel for the accu>ied; seems to think that all the proof required by
law to repel the said presumption was only so much as would raise a rational doubt of bis
sanity at the time of committing the act charged against him/ Now I think this is not
law; and that the law is correctly expounded in the instruction given by the court. There
are certainly several American cases which seem to sustain the view of the prisoner's
counsel. But I think the decide^ weight of authority, English and American, is (he other
way. In 1 Whart. Am. Cr. Law, 8 711, the writer says: 'At common law the preponderance of
authority is that if the defense be insanity, it must be substantially proved as an independ-
ent fact.* And for this proposition a number of cases are cited. And after reference to
many of them, he concludes as follows: * I think the fair result of them all is to show that
insanity, when it is relied on as a defense to a charge of crime, must be proved to the satis-
faction of the juiy, to entitle the accused to be acquitted on that ground. * * * The
law presumes every person sane till the contrary is proved. The Ckmimonwealth having
proved the corpiu delicti, and that the act was done by the accused, has made out her case.
If he relies on the defense of insanity, he must prove it to the sattisf action of the Jury. If
upon the whole evidence they believed he was insane when he committed the act« they
wiU acquit him on that ground ; but not upon any fanciful ground that though they believe
he was then sane, yet as there may be a rational doubt of such sanity, be is therefore en-
titled to an acquittal. Insanity is easily feigned, and hard to be disproved, and public
safety requires that it should not be established by less than satisfactory evidence.' " This
is the doctrine held in Massachusetts, Pennsylvania, California, New Jersey, Maine, North
Carolina, Arkansas, Alabama. See OrtwHn v. Com^ 76 Penn. 8t. 414; s. c, 18 Am. Rep.
480; BonoeU v. StaU, 63 Ala. 307; s. c, 85 Am. Rep. 90. and note 82. But in other Btatss it is
held that if the evidence raises a reasonable doubt of sanity, the prisoner must be acquitted.
Thus in Mississippi, Michigan, Kansas, Indiana, Tennessee, New Hampshire, Illinois. See
Ouetigy. SUUe^ 66 Ind. 94; s. o., 8S Am. Sep. 99;CunMnoham v. State, 66 Miss. 960; s. c,
81 Am, Bep. 860, and cases cited.

Interkatiokal Bank v. German Bakk.

(71 Mo. 183.)
Certificate of deposit — rights of assignee of

A certificate of deposit bore the following words written in red ink across the
face : "The certificate is subject to any subsequent claim for collection or
any other fees arising out of the disbursement of the legacy of which this
money is part of proceeds.*' The payee indorsed it in blank and delivered
it. Heldf that even considering the certificate non-negotiable, the transferee
might pledge it to an innocent party who would hold it as against the tme
owner, to the amount advanced, unaffected by the equities between the trans-
feror and the payee.

Digitized by


OCTOBER TERM, 1879. 469

Interaational Bank ▼. German Bank.
npHE opinion states the ease.

F. & E. L. Gottschalky for appellant.

T. A, <§ H. M, Posiy for i-espondent Boecke.

Napton, J. The facts of this ease are UDdispntod, and are fally
stated in the printed brief of appellant, conceded to be correct by
the counsel for respondent, and arc therefore for convenience here

It appears that the International Bank, plaintiff, as well as the
German Bank, defendant, and the People's Savings Institution, of
which John H. Fisse became the assignee, are all banking corpora-
tions ; that on August 11, 1874, Hermann Boecke, one of the inter-
pleaders, deposited with the German Bank the suni of $3,000, for
which he received u certificate of deposit, as follows :

German Bank, )

*' $3,000. St. Louis, Mo., Augusi 11, 1874. f

Hermann Boecke has deposited in this bank $3,000, payable^o
the order of himself six months after date, with six per cent mter-
est for the time stated, on the return of this certificate properly

« No. 10,301. Frank N. Deitz, Cashier."

The following indorsement is written across the face in red ink:
'' This certificate is subject to any subsequent claim for collection, or
any other fees arising out of disbursement of the legacy of which this
money is part of proceeds."

It further appears that afterward and before the maturity of said
certificate, to wit : on August 24, 1874, the same was indorsed in
blank by said Hermann Boecke and delivered to the People's Sav-
ings Institution for safe keeping, and as collateral security for two
loans made by said institution to said Boecke, for which he had exe-
cuted and delivered his two promissory notes, one for $300 and one
for $150 ; that no part of either of said notes has been paid, and
that both of them are held by John H. Fisse, as such assignee of
said People's Savings Institution. It further appears that after-
ward, and still before the maturity of said certificate of deposit, to
wit: in January, 1875, Edmund Wuerpel, then cashier of the Peo-
ple's Savings Institution, did, for and on behalf of said institution,

Digitized by



International Bank v. Qerm&n Bank.

obtaiu a loan of 15,000 from the plaintiff, the Internatioual Bank,
to secure which loan he delivered to plaintiff sundry collaterals,
amounting in the aggregate to $G,000, among which was this certifi-
cate of de]>osir, not yet due ; that Wuerpel acted within the scope
of his authority in making the loan, and that he represented to
plaintiff at Ihe time that the collaterals so offered were the property
of the People's Savings Institiilion ; that Wuerpel, as such cashier,
executed a note for said ^.3,000, which became due on February 1,
1875, a Monday, and that those collaterals were pinned to such note ;
that on January 30, IST5, the Saturday before the Monday, on
which said note became due, in the afternoon, Wuerpel came to the
teller of plaintiff, and said he wished to pay the loan of $5,000, and
then gave his check, certified by liim as cashier, on the People's
Savings Institution, of which he was cashier, for $4,500, being the
balance due on said loan, and in exchange the teller gave him the
note with the collaterals attached ; that next Monday, February 1,
1875, in the morning the teller of plaintiff was sent down
to the People's Savings Institution but found the doors closed
and that Wuerpel had absconded ; that thereupon the plaintiff
sued out a writ of replevin against said People's Savings Insti-
tution and against Fisse, its assignee, and by virtue of such
writ obtained back said certificate of deposit ; that said replevin
suit was still pending, undecided, at the time of the trial of this
case (although since decided in favor of plaintiffs) ; that Wuerpel,
the cashier, absconded on January 31, 1875 (Sunday) ; that upon
discovering this an assignment was made by the People's Savings
Institution of its property and effects to John H. Fisse, on Monday,
February, 1, 1875, and that he took possession thereof on that day,
and found that Wuerpel, prior to his departure, had given his checks
to various parties, to the amount of many thousand dollars m excess
of the money on hand.

It was further shown that the International Bank, plaintiff,
took said certificate in good faith, as one of the collaterals, and upon

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 53 of 123)