THE PEOPLE V. GARBUTT.

b. The evidence of the temporary insanity of the defendant's brother while in the army was too remote. It did not tend to prove hereditary insanity.-6 Jones, N. C. 471.

c. Evidence of the defendant's being a valiant soldier was inadmissible. It had no reference or analogy to the nature of the crime with which he was charged.-1 Bish. Cr. Pro. 489; 3 Greenl. Ev. § 25; 6 Mo. 12; 2 Wend. 352. And evidence of his undue excitement during engagements in battle was liable to a like objection.-7 C. and P. 673; 2 Mass. 307; 10 Ga. 101.

It is well settled that voluntary intoxication of whatever degree furnishes no excuse for a crime committed under its influence.1 Bish. Cr. L. § 298; 1 Am. C. L. §37; 2 Barb. 566; 2 Gray, 463; 2 Park. C. R. 223; Russ. & Ry. 166; 9 Humph. 663; 11 Id. 154.

Sanity is presumed to be the normal state of the human mind, and it is never incumbent upon the prosecution to give affirmative evidence that such a state exists in a particular case.

The preponderance of authority is, that if the defense be insanity, it must be substantially proved as an independent fact, and that the burden is on the defendant to prove it. Am. C. L. §§ 55 and 71; Bish. Cr. Pro. §§ 533, 534 and notes; 2 Ala. 43; 21 Mo. 464; 6 Jones N. C. 366; 1 Zabriskie, 202; 3 C. & K. 188.

S. Larned, for defendant.

1. It is for the court to define the legal import of the term malice aforethought; but whether it existed or not in any particular instance is a question of fact for the jury to determine. And the court has no right to withdraw the question of malice from the jury by assuming to draw the proper inferences from the whole or any part of the facts proved as presumptions of law. -10 Mich. 218.

The burden of proof as to malice rests with the prosecution, for the reason that malice is one of the essential ingredients of the crime of murder. — Ibid.

THE PEOPLE V. GARBUTT.

2. The court erred in excluding evidence of deceased's reputation, as to being a quarrelsome man, and as to carryrying arms and threatening to use them, and that he had threatened defendant. It bears directly upon the bona fides of the defendant's conduct, the state of his mind, and the question of malice; and therefore admissible.

3. The court erred in charging that reasonable provocation was a question of law for the court, and that there was no reasonable provocation in this case.

It is, doubtless, in one sense the province of the court to define what in law will constitute a reasonable or adequate provocation; but not, in ordinary cases, to determine whether the provocation in the particular case is sufficient or reasonable. This is essentially a question of fact, and to be decided with reference to the peculiar facts of each particular case.-10 Mich. 221, 222.

The court must to some extent assume to decide upon the sufficiency of the alleged provocation when the question arises upon the admission of testimony; but after he has admitted the testimony he can not take the question away from the jury and decide it himself.

4. Intoxication to such an extent as to make the prisoner unconscious of what he was doing at the time of the commission of the offense negatives the existence of malice; and upon principle the defendant can not be held morally responsible for any other act than that of getting intoxicated; at any rate the offense becomes manslaughter, and not murder.

5. Whenever it appears from the evidence that at the time of doing the act charged, the prisoner was not of sound mind, but affected with insanity, and such affection was the efficient cause of the act, and that he would not have done the act but for that affection, he ought to be acquitted.—31 Ill. 385.

When insanity is set up as an excuse for the act the defendant does not thereby assume the burthen of proof

THE PEOPLE V. GARBUTT.

upon that question. Sanity is a necessary condition to constitute the crime, and proof thereof, a part of the case to be made by the prosecution.-16 N. Y. 58; 31 Ill. 385.

It is competent for a defendant charged with crime to show the existence of hereditary insanity in his ancestors. He may also show that his brothers or sisters have been insane.

6. Upon the trial of a party for murder, evidence of his uniform good character as a man and a citizen is admissible, and there is no good reason why his character as a soldier, while engaged in the service of his country, should be excluded.

7. The court erred in refusing to admit testimony of any undue and unnatural excitement about the defendant during engagements in the army.

This evidence would tend to show the condition of his mind and memory, and was therefore admissible.

8. The court erred in refusing to charge as requested by defendant that as to good reputation it is for the jury to consider whether such reputation tends to rebut the presumption of malice.

COOLEY CH. J.

The defendant was convicted in the Recorder's Court of the city of Detroit, on an information charging him with the murder of one La Plante. On the trial, it was shown that La Plante, and a young woman named Emily Boucher, were coming down Woodward Avenue together, on the afternoon of September 21, 1867, when they were overtaken by the defendant, who, after a few words, fired a pistol at La Plante, wounding him mortally. No question was made that La Plante died of this wound, but it was insisted, on behalf of defendant, that it was inflicted by him under circumstances of great provocation, sufficient to reduce the offense from murder to manslaughter; and it was further claimed that he was at the time mentally incompetent of a

THE PEOPLE . GARBUTT.

criminal intent; the reason being temporarily overthrown. through the combined influence of intoxicating drinks, the great provocation, and perhaps of hereditary tendencies also.

The defendant's statement went to show that he was engaged to be married to Emily Boucher-the first day of May, 1868, being fixed upon for the ceremony; that he visited her twice a week, and had spent the evening of Tuesday, September 18th, with her as usual, but was informed by his mother on the next day of rumors that Emily was to be married to La Plante; that these rumors received confirmation from the statements of others, who added the circumstance that La Plante-who would appear to have been in better circumstances than the defendanthad deeded her forty acres of land; that defendant came to Detroit on the day of the homicide, saw La Plante and Emily get into a buggy together; followed them to a milliner's shop, where he succeeded in getting an interview with her, which he describes as follows:

"I said, "I hear you are going to get married to La Plante?' She said, 'Yes.' I said 'Do you love him better than me?' She made no reply. I said, 'Do you love him or his property?' She said nothing. I went closer to her, put my arm around her and kissed her, and said, 'Emma, are you going to do as you promised?' She answered,

Come up in the morning and I will tell you.' She made no resistance when I kissed her, but said, 'You must be careful.' We parted, and she got into a buggy; we got to the house, No. 58 Dubois street: from there I don't know where I went." Other evidence showed that he went immediately for the pistol with which the fatal wound was inflicted, but it tended to corroborate the statement of the prisoner as to his engagement, and there was also evidence tending to show that he was at this time considerably under the influence of liquor.

The first exception that appears in the record, was taken to the ruling of the Recorder, excluding evidence offered by

THE PEOPLE V. GARBUTT.

the defense to show that La Plante was reputed to be a quarrelsome man, who carried weapons and threatened to use them, and had threatened the defendant. This ruling was correct beyond question. There was no pretence that defendant had killed La Plante in self defense; but on the contrary, he had followed him for the apparent purpose of inflicting the mortal wound. La Plante's reputation or threats could have no possible relevancy to the case.

Exception was also taken to the exclusion, by the Recorder, of evidence offered to show that the defendant, while in the army from 1862 to 1865, was reputed a good and valiant soldier; but there is quite as little question of the correctness of this ruling. It is somewhat difficult to suggest any plausible reason in favor of the admission of such evidence, and it was clearly irrelevant.

As bearing upon the question of insanity, a witness for the defense, who had been in the army with defendant, was asked to state whether he saw, during any engagements, any undue and unnatural excitement about the defendant. This question was objected to, and excluded by the Recorder, and we think correctly. The opinions of witnesses as to what is undue and unnatural excitement in time of lattle, can not generally afford ground for safe conclusions as to a person's mental condition years afterwards, unless it appears that the excitement actually mastered the intellect, and deprived the person of accountability, which we do not understand was pretended here.

The most important questions arise upon the exclusion, by the Recorder, of evidence offered to show the insanity of a brother of the prisoner, and upon his charge to the jury, and refusals to charge as requested on behalf of defendant.

Those questions which relate to the discovery and proof of insanity in criminal cases, are perhaps the most difficult of any with which courts and juries are compelled to deal. Mental disease is itself so various in character, so vague, sometimes, in its manifestations, and so deceptive, especially