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experiences that presumptions rest. It is upon the current experience of the probity and honesty of the majority that we presume everybody to be innocent until proof of the contrary, and so in relation to sanity and insanity, our ordinary experience teaches us that the majority of men are sane, and consequently we presume every man to be sane until it is satisfactorily proved that he is not. Now presumptions being of the nature of evidence, are related to what is called the burden of proof, A man being presumed innocent, must before he can be convicted be proved guilty. Therefore, the burden of proof is upon him who impeaches. So in cases of supposed mental disease, the burden of proving insanity is upon those who assert it.1

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2 517. Burden of Proof in relation to Wills.-Every man being regarded as sane, every man is also regarded as capable, until the contrary appears. It is, therefore, for those who assert that a testator was not in a condition to dispose of his property by will to establish that by proof." American Judges, with that skittishness whicli has in many instances characterized their intolerence of the harness of authority, have in several instances attempted to force a different rule upon the law. Thus in the Parish will case the Court ruled: "1. That in all cases the party propounding the will is bound to prove to the satisfaction of the Court that the paper in question does declare the will of the deceased, and that the supposed testator was at the time of making and publishing the document propounded as his will of sound and disposing mind and memory. 2. That this burden is not shifted during the progress of the trial, and is not removed by proof of the factum of the will and the testamentary competency by the attesting witnesses, but remains with the party

See as to rule in Scotland, Stair 1, 4, 6, and 1 Fraser's Family Relations, 45. * Sutton v. Sadler, 3 C. B., N. S. 89, 96.

Harris v. Ingledew, 3 P. Wms. 91; Stevens v. Vancleve, 4 Wash. C. C. 262; Temple v. Temple, 1 Hen. & Munf. 476; Saxon v. Whitaker, 30 Ala. 237; Trumbull v. Gibbons, 2 Zabriskie, 593; Hubbard v. Hubbard, 6 Mass. 397; Jackson v. VanDusen, 5 Johns. 144; Turner v. Cheesman, 15 N. J., Ch. 243; Cotton v. Ulmer, 45 Ala. 378; Bogardus v. Clark, 1 Edw. 266; Clarke v. Sawyer, 3 Sandford Ch. 351; Rees v. Stille, 88 Pa. St. 138; Wrestler v. Custer, 46 Pa. St. 502; Runyan v. Price, 15 Ohio St. 1; Thompson v. Kyner, 65 Penn. St. 368; Farrell v. Brennan, 32 Mo. 328.

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setting up the will. 3. That if, upon a careful and accurate consideration of all the evidence on both sides, the Court is not judicially satisfied that the paper in question does contain the last will of the deceased, the Court is bound to pronounce its opinion that the instrument is not entitled to probate.' A similar rule has been laid down in other States2why, it is somewhat difficult to see. The mere fact of having made a will cannot be regarded as having raised a presumption that the man who made it was insane. On the contrary, we should say that it appearing that a will had been made which dealt with the property of the deceased was in the absence of all proof some indication of mental capacity. That being so, surely it would require some proof to make it appear that the will was not executed by one who had the capacity to will or to know what he was willing. We cannot think that the burden of proof of sanity should be on those who propound a will, seeing that ordinary experience proves that the vast majority of testators are of sound mind, and the presumption of soundness is founded upon that knowledge. It is not necessary to prove that it was dark at twelve o'clock on the morning of the first of January. It would be necessary for any one who relied upon the fact that it was daylight at that time to prove it, if he could. Presumptions are leanings of law, and the law leans to the opinion that most men are able to make rational wills, and hence the burden of proof ought to be on those who deny sanity. If it could be made to appear that this opinion of the law was erroneous, there would be a reason for shifting the burden of proof to those who propound the will, not otherwise.

? 518. Burden of Proof where Insanity has been Proved to Exist.-Where, however, it has been proved that the testator was insane for a long period previous to the execution of his will, the presumption of law, founded upon the facts of observation, is that he was insane at the time the will was made. Thus it was said in the Court of Probate that "if unsoundness extending over years be once proved

Delafield v. Parish, 25 N. Y. 10.

Davis v. Rogers, 1 Houston, (Delaware,) 44; Comstock v. Hadlyme, 8 Conn. 261; Taff v. Hosmer, 14 Mich. 309; Crowninshield v. Crowninshield, 2 Gray, 524.

by those who oppose a will, there is no doubt, as a proposition of law, that they are not bound to carry the evidence of insane actions or delusions up to the very moment of the testament. A diseased state of mind once proved to have established itself, would be presumed to continue, and the burden of showing that health had been restored falls upon those who assert it." This, then, is the law with regard to the burden of proof where a lucid interval is alleged as the ground of validity of an instrument made during its continuance by a person at other times insane. The lucid interval must be proved. Where, however, the disease was not of a continuous nature, but was liable to exacerbations and remissions where it was spasmodic in its nature, and the chances of sanity were quite as great or greater than those of insanity, as in the case of delirium tremens, this presumption does not arise, and the burden of proof is the same as in ordinary cases.*

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8 519. Burden of Proof in connection with Contracts.— In all cases of contract, the burden of proof is upon the party who assails it. There is, so far as we know, no dispute upon this point, and that fact shows the falsity of the position of those American Judges who have attempted to differentiate, in so far as the rule as to the burden of proof is concerned, between wills and contracts."

2 520. Burden of Proof in Criminal Cases.-The law of England at least is consistent throughout as to this matter of the proof of insanity. It always holds that a man is innocent until he is shown to be the reverse, and it always holds a man to be capable of civil acts and responsible for criminal ones until the contrary is proved. Thus in the Macnaughten

'Smith v. Tebbitt, 1 L. R., Prob. 434. See also Emery v. Hoyt, 46 Ill. 258; Staples v. Wellington, 58 Maine, 453.

* Reg. v. Stokes, 3 Car. & K. 188; Reg. v. Taylor, 4 Cox C. C. 155; Cartwright v. Cartwright, 1 Phillim. 100; Hoge v. Fisher, I P. C. C. R. 163; Whitmack v. Stryker, 1 Green C. R. 8; Harrison v Rowan, 3 Wash. C. C. 580; Goble v, Grant, 2 Green Ch. 629; Stevens v. VanCleve, 4 Wash. C. C. R. 262; Kelly v. Webster, 8 Shep. 46; Hix v. Whittemore, 4 Metc. 545.

3 State v. Stewall, 3 Jones N. C. 245.

1 Lewis v. Baird, 3 McLean, 55; Menkins v. Lightner, 18 Ill. 282; Achey v. Stephens, 8 Ind. 411.

Howe v. Howe, 99 Mass. 88; Myatt v. Walker, 44 Ill. 485.

case,' it was determined that in all such cases the jury ought to be told that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes until the contrary is proved to their satisfaction. So in Regina v. Stokes,' it was decided that when the defence of insanity is set up in order to warrant the jury in acquitting the prisoner, it must be proved affirmatively that he is insane, if the fact be left in doubt, and if the crime charged in the indictment is proved, it is their duty to convict. Again, in another case, it was said that "where a prisoner sets up insanity as a ground of defence, one cardinal rule is that the burden of proving his innocence on that ground rests on the party accused. The question in such a case for the jury is not whether the prisoner was of sound mind, but whether he has made out to their satisfaction that he was not of sound mind. The jury may come to a conclusion on this point from the conduct and acts of the accused shortly before and down to the commission of the alleged crime." And the Court in this case added two laws of evidence which it may be as well to quote in this place. The first was that "although insanity on one point, for instance a delusion as to property, will not exempt a party from responsibility, the fact is not immaterial in considering his responsibility at another time and on another subject." And the second, that "the want of motive for the commission of the crime and its being committed under circumstances which render detection inevitable, are important points for the consideration of the jury when coupled with evidence of insanity on any particular point."3 In America, we again find a considerable difference of opinion from that which is universally entertained by our Judges, and a good deal of difference even among American Judges themselves. Some hold, as in England, that insanity must be proved beyond reasonable doubt; some that the jury are to

10 Clark & F. 200; 1 C. & K. 130; 8 Scott N. R. 595. 3 Car. & K. 185.

† Reg. v. Layton, 4 Cox C. C. 149.

See also Atty. Gen. v. Parnther, 3 Brown C. C. 441; Reg. v. Davies, 1 Foster & F. 69. The same rule is observed in Scotland.-Lord Advocate v. Campbell & Smith, 2 Irvine, 1; McFayden's Case, 3 Irvine, C61; Gibson's Case, 2 Broun, 332, at p. 353.

The defence must be proved beyond a reasonable doubt. People v. McCann, 16 N. Y. 60; State v. Spencer, i Zabriskie, 202; Kriel r. Com., 5 Bush. Ky., 362; McKenzie v. State, 42 Ga. 334; State v. Huting, 21 Mo. 477, where it is said, "the jury must believe that insanity exists;" State v. Holme, 54 Mo. 164; State r. Smith, 53 Mo. 267; Bonfanti v. State, 2 Minn. 123-followed in 12 Id. 538, 13 Id. 341; Clark r. State, 12 Ohio, 495.

decide in accordance with the weight of evidence, and are not, before acquitting a prisoner, to require insanity to be made out beyond reasonable doubt;' and others, that it is inincumbent upon the prosecution to make out sanity just as they have to prove guilt.2 In reference to the first, we need add nothing here. As we have seen, it is the English rule: it is in conformity with the principles which are applied to evidence in civil issues, and it is, to our thinking, founded upon reason and common sense. 3 With reference to the second, it may be useful to quote one or two of the authorities. Thus in one of the most recent cases, it was held “that in a criminal prosecution where the insanity of the prisoner is the defence, it is incumbent on him to overcome the presumption of sanity and establish his insanity by a preponderance of testimony or evidence that is satisfactory. The rule requiring the evidence in a criminal prosecution to satisfy the jury beyond a reasonable doubt of the defendant's guilt is applicable only to the general conclusion of guilty or not guilty upon the whole cvidence, and not to any one fact in the case. At the same time the Court added, "To raise a reasonable doubt of his sanity is not enough." Thus in another State the Court told the jury that the onus is on the defendant to prove by a preponderance of evidence that at the time of committing the act he was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he

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Com. r. Eddy, 7 Gray, 583; Com. v. Rogers, 7 Met. 500; also Report by Bigelow & Domis, p. 281; Loeffner v. State, 10 Ohio, 599; McKenzie v. State, 26 Ark. 331; Com. v. York, 9 Met. 93. In State v. Starling, 6 Jones, N. C., 367, the Court said: "He must prove his case as you would require the proof of any fact about which parties are at issue." In People v. Myers, 20 Cal. 518, a preponderance of proof of insanity was necessary; so in People v. McDonald, 47 Caf. 136. See Bond . State, 23 Ohio St. 349, a bare preponderance is all that is necessary." As to idiocy, sco Com. v. Heath, 11 Gray, 303.

2 People v. Garbutt, 17 Mich. 9. See also State v. Bartlett, 43 N. H. 224; Polk r. State, 19 Ind. 170; Stevens v. State, 31 Ind. 485; Hopps v. People, 31 Ill. 895; Ogletrie v. State, 28 Ala. 701; State v. Marler, 2 Ala. 43; State v. Brinyca, 5 Ala. 241; Smith v. Com., 1 Duvall, Ky., 224; State v. Crawford, 14 Am. L. Reg., N. S., 21; Dove v. State, 3 Heisk. 371.

In Boswell v. Commonwealth, 20 Gratt. (Va.) 830, the Court held that insanity must be proved to the satisfaction of the jury to entitle the accused to be acquitted on that ground, and that mere doubt of the sanity of the prisoner was not sufficient to justify an acquittal. See also Kriel v. Com., 5 Bush, (Ky.) 302.

+ State v. Felton, 32 Iowa, 49.

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