A reasonable doubt of sanity must acquit. In the second case it is this:

A party pleading new matter must prove it; The defence of insanity is a plea of new matter; ergo,

A party pleading insanity must prove his plea. In the third case there are two:

(a) A defendant is as to new matter pleaded as the prosecution as to the matter alleged against him;

Insanity is new matter; ergo,

A defendant is to his plea of insanity as the prosecution to the charge.

(b) The prosecution must prove its case beyond a reasonable doubt;

The defendant is to his insanity as the prosecution to its case; ergo,

The defendant must prove his insanity beyond a reasonable doubt.

The first of the views above referred to is undoubtedly the most prevalent, and under such a rule it is, of course, as experience has shown, easy to obtain the acquittal of almost any murderer on the plea of insanity. As an example of what may be done with such a plea by a judge desirous of acquitting an influential criminal, the outrageous charge of Mr. Justice Hogeboom, of the Supreme court of New York, in the wellknown case of The People v. Cole, is interesting and instructive. It may be questioned whether the doctrine of a reasonable doubt has ever been carried so far, and it is to be hoped for the credit of the bench and the safety of society that it never will be again.

But behind and beyond the question of what proof of insanity should be required lies the question, which does not seem to have occurred to many people, whether insanity should be a defence in capital cases at all. It may seem at first startling to put it as a debatable matter, but that it is at least open to argument, a little consideration will show. Capital puishment differs from other forms of punishment in that it is no part of its aim to work any reformation in the criminal. The two aims of punishment in general are, however, as prominent here as anywhere else. These aims are, 1st, to prevent repetition of the offense by the criminal; 2d, to prevent the commission of the offense by others. Both kinds of punisnment rely on the same means of effecting the second object, which is the dread of the punishment inflicted in a given case; but to effect the former object capital punishment removes from the criminal all power of ever acting at all, while milder forms rely upon the dread of again incurring them, to induce the criminal to abandon his evil ways. The theory of the two clearly is, that one who commits the higher offenses is supposed to be so depraved that nothing but his death can protect society from him, while in other cases it is supposed that less extreme measures will suffice.

Now, if these views are applied to the case of a lunatic it will be seen that every argument that can be adduced to show the necessity for the death of a sane murderer has tenfold weight in

case of an insane murderer. If it be hopeless that a sane murderer should ever cease to be dangerous, it is certainly so in the case of a lunrtic. He is possessed of an insane delusion, under the influence of which he has committed one murder and may commit others, or (if we except the theory of "emotional insanity") he is liable under certain circumstances to be so much excited as to be irresponsible, and in that state to commit murder. If committed to an asylum, he may so far improve as to be discharged as cured, and yet he may have a recurrence of dementia which may again impel him to a performance of new crimes. Society is never safe while he lives.

In considering this matter, the province of human law must carefully be borne in mind. With the measure of the moral guilt of an offender it has nothing to do. Its only province is to protect the society which establishes it, and to punish such acts as are harmful to society, regardless of their moral aspects. It is easy to see that this has been practically recognized to be true, in spite of some isolated instances of an attempt to make the law cover all moral offences, as in the case of many of the early enactments of the New England colonies; and the converse of the proposition which the Puritans strove to estabfish, that all moral offences should be held legal offences, is seen in the numerous acts everywhere in force prohibiting under various penalties acts in themselves perfectly proper.

Now, it is only by a confusion of ideas upon this matter of the province of the law that insanity has been held to be a defence in capital cases. There may be and frequently is no moral guilt attached to the act of an insane murderer and it is due to a certain feeling in the public mind that a person not morally guilty should not be punished for his act, that his lack of responsibility has been held a defence.

This feeling is reasonable enough when applied to punishments not capital, but to what is called "capital punishment" it has no proper application; and this for the reason that capital punishment is in fact not punishment at all. It is of the essence of punishment that it should have an ulterior end beyond the infliction of the penalty, and this ulterior end (as to the criminal) is that he, by experiencing the penalty for his offence, should be deterred from a repetition of the crime. It would, in general, be manifestly vain to hope for such an effect upon a lunatic, and therefore such punishments are not applicable to him.

But in capital cases the only aim of the law is to destroy the offender, and remove by his death a danger to society which can be removed in no other way. The danger to society from an insane murderer is at least as great as from a sane murderer, and society has as much need for protection in the one case as in the other. If it is vain to hope that the sane murderer, who is open to the effects of milder penalties, can be rendered harmless while he lives, it is still more

ler did not authorize the use made of the old note, and in no manner assented thereto, being a mere surety upon the note, he was not liable upon it when received by the plaintiff as a security or pledge for the payment of the Canton draft within ten days." And again: "In order to transfer the legal title of the note, as commercial paper, the note should have been indorsed by both Tyler and Fowler."

The case was decided in this court during the term of Gilmore, C. J.

E. B. Taylor, for plaintiff in error.

G. M. Tuttle, for defendants in error.

OKEY, J.

On the trial of this case the testimony was quite conflicting. We do not find it necessary to express any opinion as to the preponderance of the evidence. Of course the plaintiff in error was entitled to recover, if Fowler and Humiston, at the time they executed the note sued on in this case, knew the terms upon which the note of Tyler and Fowler was held. Equally clear it certainly is, that the plaintiff in error was not entitled to recover if it concealed from the defendants in error the terms upon which it held that note, and thereby induced the execution of the note here in suit. The question is as to the liability of the defendants in error upon the assumption that without their fault, or the fault of the plaintiff in error, they were ignorant of those terms. In that case their liability should be measured by the liability of Fowler on the note executed by himself and Tyler. The requests for instructions to the jury, the refusal to charge as requested, and the charge given, in connection with the tendency of certain testimony set forth in the statement of the case, fairly present the question as to the liability of Fowler on the Tyler-Fowler note in the latter view, and require us to say whether the action of the court in that respect was or was not erroneous.

The note executed by Tyler and Fowler was what is known as an irregular instrument. Byles on Bills (6th Am. ed.) *90; 1 Daniel on Neg. Inst. ?? 128, 148. Although signed by both of them, its terms are, "I promise to pay to the order of myself one thousand dollars." Where a note signed by two or more persons is payable to the order of one of them, it becomes effectual when he writes his name upon the instrument and puts it in circulation. If it is payable, in terms, to the order of two of the makers, the same thing must be done by both of them in order to vest in the holder a legal title. A note payable to the maker's own order is wholly void until indorsed by him and put in circulation, but becomes by such transfer a valid promissory note in the hands of a bona fide holder, and is, in effect, payable to bearer.

The only indorsement made upon the note by Tyler and Fowler, was that made by Tyler by writing his name on the back of the instrument. Was the court warranted in saying to the jury that, “in order to transfer the legal title of the note, as commercial paper, the note should have been indorsed by both Tyler and Fowler?" In our opinion this question must be answered in the negative upon three grounds.

First. Where a note the terms of which are, 66 I promise to pay," is signed by more than one person, it may be read, "We or either of us promise to pay." Wallace v. Jewell, 21 Ohio St. 163. Here the instrument is signed by two persons, and its language is, "I promise to pay to the order of myself one thousand dollars." No greater violence is done to language by reading it, "We or either of us promise to pay to the order of ourselves or either of us," than was done in Wallace v. Jewell; and

we think where such interpretation is in harmony with what seems to have been the intention of the parties, the instrument may be so read. Conner v. Routh, 7 How. (Miss.) 176; Boyd v. Brotherson, 10 Wend. 93; Pearson v. Stoddard, 9 Gray, 199; Higley v. Newell, 28 Iowa, 516. Second. Parol evidence is inadmissible to vary the terms of a promissory note; but where the instrument is of the class we are now considering, parol evidence may be admitted to explain it. McCrary v. Caskey, 27 Geo. 54; Taylor v. Strickland, 37 Ala. 642; Kelsey v. Hibbs, 13 Ohio St. 340. "If you can construe an instrument by parol evidence, where that instrument is ambiguous, in such manner as not to contradict it, you are at liberty to do so. Parke, B., in Goldshede v. Swan, 1 Welsby, H. & G. 154, 158. And Prof. Parsons says: "Where the language of a note is capable of two meanings, parol evidence may direct the proper choice to be made between them." 2 Bills & N. 517.

Third. The evidence shows that when Tyler received the note from the hands of Fowler, the latter intended to invest him with the power to negotiate it, and to do what-. ever was necessary to be done in order to transfer a legal title to the instrument. Tyler, under the circumstances, was empowered, on his own behalf and as agent for Fowler, to invest another with a legal title to the note. One may be orally authorized to indorse for another a promissory note, and where the instrument is in the form of the one under consideration, the indorsement may be made as the note was indorsed, if that was the manner of indorsement contemplated by the makers. 1 Daniel on Neg. Inst. 2 272-308.

But the defendants in error claim that Tyler diverted the note from the object for which it was executed, and hence Fowler, who executed the note for the accommodation of Tyler, was discharged. The note, as we have seen, is an irregular instrument, and is payable at another bank than the plaintiff in error; but having been indorsed in the manner stated, if there was an understanding between Fowler and Tyler that the latter had general authority to transfer the note, the instrument differs, in no legal sense, from the most formal instrument, although the plaintiff in error knew Fowler was surety. Stone v. Vance, 6 Ohio, 246; Riley v. Johnson, 8 Ohio, 526; Williams v. Bosson, 11 Ohio, 62; Clinton Bank v. Ayres, 16 Ohio, 282; Portage Co. Bank v. Lane, 8 Ohio St. 405; Erwin v. Shaffer, 9 Ohio St. 43; Knox Co. Bank v. Lloyd, 18 Ohio St. 353; Kingsland v. Pryor, 33 Ohio St. 19: Indeed, according to the syllabus, the transfer of such note, even in violation of an agreement between the principal and surety, will not discharge the latter, if the indorsee had no knowledge of the agreement.

Finally, it is urged, in support of the instruction to the jury, that Tyler had no power, however fair the transac-. tion may have been on the part of the plaintiff in error, to pledge the note as collateral security for the payment, within ten days, of a protested draft for $469.55. But the position is not untenable, for there was an agreement to delay collection of the draft for the specified time. Erwin v. Shaffer, supra; Roxborough v. Messick, 6 Ohio St. 448; 1 Daniel on Neg. Inst. ?? 829–832.

For error in refusing to chargé as requested, and for error in the charge as given, in the particulars indicated in this opinion, the judgment will be reversed, and the cause remanded for a new trial.

Judgment reversed.
Boynton, J., dissented.

[This case will appear in 36 O. 8.1

SUPREME COURT OF OHIO.

DANIEL L. JUNE ET AL

V.

JOHN PURCELL.

1. The principle decided in Gavit v. Chambers (3 Ohio, 496), that the owners of lands situate on the banks of navigable streams running through the state are also owners of the beds of the rivers to the middle of the stream, as at common law, has become a rule of property, and, irrespective of the question of its original correctness, ought not to be disturbed.

2. The same rule applies to lands bordering on the Sandusky river, in the tract of two miles square surveyed and sold under the act of congress of April 26, 1816. 3 Statutes at Large, 308.

3. Hence, the riparian owner can recover for sand tortiously taken from the bed of the river.

Error to the District Court of Sandusky County.

The original action came into the court of common pleas by appeal.

April 8, 1873, John Purcell filed his petition in said common pleas court against Daniel L. and Daniel S. June, setting forth that he is the owner, in fee simple and in actual possession, of outlots number 61 and 62, in said city of Fremont, Sandusky county, Ohio, which said lots were designated in the original survey thereof as tracts number 23 and 24 in the United States Reservation of two miles square at the foot of the lower rapids of the Sandusky river. That said lots or tracts comprise all of the large island in the Sandusky river, which is a navigable stream.

That said Purcell owns to the center of the river, subject, however, to the right in the public to navigate the same.

That a portion of the bed of the river immediately adjacent to the westerly side of said island had, at the time of committing the wrongs complained of, risen so high as to form a distinct ridge or bar, which at ordinary stage of water was left dry. That said bar lies wholly between the center of said river and said island, and connects with said island by a narrow neck, bar or ridge.

That about December 1, 1870, and at other times between that day and the commencement of this action, the said Daniel L. and Daniel S. June, wrongfully and unlawfully entered upon said premises, dug up, took and carried away from said bar or ridge, and converted to their use, one hundred and twenty wagon loads of said Purcell's sand, earth and soil, being the alluvium and accretions so as aforesaid deposited upon the bed and shore of said river adjacent to and on the westerly side of said island, to said. Purcell's damage, &c.

Daniel L. and Daniel S. June, answering, admit:

That the lots described in Purcell's petition comprise the large island in the Sandusky river, which is a navigable stream. That said island is situate in the city of Fremont, Sandusky county, Ohio, and within the United States Reservation of two miles square at the foot of the lower rapids of the Sandusky river.

They also admit that during the month of

December, 1870, they caused to be taken and removed from the bed of the river, below the lowwater mark thereof, opposite said island and between it and the center of the river, about sixty wagon loads of sand. They deny all statements of facts contained in said Purcell's petition not in this their answer specifically admitted.

At the April term, 1873, the court found the issues in favor of the plaintiff and assessed his damages at $10 for which judgment was rendered.

The motion of the defendants for a new trial having been overruled, a bill of exceptions was taken, embodying all the evidence.

The following are the material parts of the bill of exceptions:

"Be it remembered, that on the trial of said action to maintain the issues on the part of the plaintiff, the following facts were agreed to by the defendants, and with the consent of both the plaintiff and defendants, received and considered by the court as evidence in said action on behalf of the plaintiff, that is to say, that at the date of the alleged trespass herein, the plaintiff was the owner in fee, and was in the actual possession to the ordinary or low-water mark, of out-lots sixty-one (61) and sixty-two (62), the same being out-lots twenty-three (23) and twenty-four (24), according to the original survey thereof, in the city of Fremont, Sandusky county, and state of Ohio. That said out-lots comprise all of the large islands in the Sandusky river, which is a navigable stream, and within the Reservation of two miles square at the foot of the lower rapids of said river. That within. the bed of said river, on the north-west side of said island, opposite the willow tree designated in the sixth course in the record of the survey and field notes hereto attached, and marked exhibit 'A,' as being '10 inches in diameter, bearing very much down stream, marked with six notches,' and between said island and the center or thread of the stream there is a sandbar, lying parallel with said island, the result of gradual and imperceptible accretions to the bed of said river, which sand-bar at ordinary or low-water, is surrounded by water. That during the month of December, A. D. 1870, the defendants dug up, took, and carried away from the north-west side of said sand-bar, and between said island and the center or thread of said stream, about 60 wagon loads of sand, of the value of ten dollars. Whereupon the plaintiff rested. Thereupon, the defendants, to maintain the issues on their part, gave, in evidence on the trial of said action, the record of the plat and field notes of a survey of said outlots, made by the United States in the month of July, A. D. 1816, under and in accordance with an act of congress approved April 26th, 1816, and 'entitled an act providing for the sale of the tract of land at the lower rapids of the Sandusky river,' of which record a copy duly certified is hereto attached, marked exhibit 'A' and made part hereof. Also, the following facts were

agreed to by the plaintiff, and, with the consent of both parties, admitted and considered by the court as evidence on the trial of said action on behalf of the defendants, that is to say, that by the survey of the Reservation of two miles square at the foot of the lower rapids of the Sandusky river, made by the United States, in the month of July, 1816, under and in accordance with the act of congress aforesaid, none of the subdivisional lines of said survey extend to or embraced the bed of the river, but that, on the contrary, all of the subdivisional lines of said survey, approaching the river, were so run as to extend only to certain points on the bank of the river at greater or less distances from the margin of the water, which points are designated by said survey as corners to the respective subdivisions of said Reservation. And also that the river was meandered on the bank thereof, to and from said respective corners. And thereupon defendants rested. Whereupon the court found and ruled that the aforesaid act of congress under which said surveys were made, reserved only an easement to the public of the right to navigate the waters of said river, and that by said act and the said surveys of the United States, made under said act as aforesaid, the boundary line of plaintiff's said land was not restricted to the margin of the water at ordinary or low-water mark, but the same extended to the center or thread of the stream, and that the plaintiff, being the owner of the island aforesaid, was by virtue thereof the owner of the bed of the river opposite to said island to the center or thread of the stream, subject only to the right of the public to navigate the waters thereof, and thereupon rendered a judgment in favor of the plaintiff against the defendants."

The judgment having been affirmed by the district court, the present proceeding in error is prosecuted by the plaintiffs in error, in this court, to obtain the reversal of the judgments of both courts.

WHITE, J.

The ruling of the courts below is in accordance with the decision of this court in Gavit v. Chambers decided in 1828. 3 Ohio, 496. In that case it was held, that in this state the owners of land situate on the banks of navigable streams running through the state, are also owners of the beds of the rivers to the middle of the stream, as at common law. The same doctrine has been recognized in subsequent cases, and has become a rule of property in this state. Lamb v. Rickets, 11 Ohio, 311; Walker v. Board of Public Works, 16 Ohio, 544. The rule is in accordance with the doctrine of the common law, which regards all non-tidal streams, that are navigable in fact, as mere highways; and the same rule prevails in most of the states.

In Jones v. Soulard, decided in 1860, the rule was applied by the supreme court of the United States, to the Mississippi river. In speaking of the rule, it is said in the opinion: "We think this as a general rule too well settled, as part of

the American and English law of real property, to be open to discussion. *** The doctrine, that on rivers where the tide ebbs and flows, grants of land are bounded by ordinary highwater mark, has no application in this case; nor does the size of the river alter the rule. To hold that it did, would be a dangerous tampering with riparian rights, involving litigation concerning the size of rivers as matter of fact, rather than proceeding on established principles of law." 24 How. U. S. 65. See also, Delaplaine v. C. & N. W. R'y Co., decided in 1877, by the supreme court of Wisconsin, 42 Wis. 214; and Braxton v. Bressler, decided by the supreme court of Illinois in 1872, 64 Ill. 488.

In Sloan v. Biemiller, 35 Ohio St. 492, it was held that the rule did not apply to Lake Erie and its bays; and a similar ruling was made in Wisconsin, in Delaplaine v. C. & N. W. R'y Co., supra.

The plaintiffs in error rely on the case of Railroad Company v. Schurmier, decided by the supreme court of the United States in 1868. 7 Wall. 272.

In that case it was declared that the common law rules of riparian ownership did not apply, under the acts of congress, to lands bordering on navigable non-tidal streams, where the title to such lands is derived from the United States.

But in the subsequent case of Barney v Keokuk (94 U. S, 338), it is said, whether, as rules of property, it would now be safe to change the doctrines of the common law where they have been applied, is for the several states themselves to determine. "If they choose to resign to the riparian proprietor, rights, which properly belong to them in their sovereign capacity, it is not for others to raise objections."

The common law doctrine, having been incorporated into the jurisprudence of this state at so early a day, and having been regarded as a rule of property for more than half a century, it ought not now, irrespective of the question of its original correctness, to be disturbed. To disturb the rule now, "would be a dangerous tampering with riparian rights."

The decision in Gavit v. Chambers related to the Sandusky river, the same river that is involved in the present case; but the land in question in that case was surveyed and sold under the act of May 18, 1796. Ohio Land Laws, 35. In the present case the land was surveyed and sold under the act of April 26 1816. 3 U. S. Statutes at large, 308.

It is contended on behalf of the plaintiffs in error, that the decision in Gavit v. Chambers does not apply to the act last named. It is true the case arose under the former act, but the doctrine of the common law which it lays down in regard to the rights of riparian owners must be kept in view in giving construction and application to the act now in question.

It is admitted in the agreed statement that "none of the subdivisional lines of the survey extended to, or embraced the bed of the river, but that, on the contrary, all of the subdivisional