Beers v. State.

of insanity are competent evidence to be considered by the jury, but the jury are instructed that the opinions of medical men of little experience on such questions are entitled to but slight consideration, and the value of such testimony will depend mainly upon the experience, fidelity, and impartiality of the witness who gives it; also you are instructed that it is competent to take into consideration the testimony of the acquaintances of the defendant who have testified as to the actions and conduct of the accused at the time of and prior to the commission of the act charged, and in this case it is from the testimony offered to establish or rebut insanity that the jury are to make up their minds as to whether Heinrich Beers was insane at the time he shot and killed Johanna Augusta Seifert.

"20. You are further instructed that the benefit of every reasonable doubt is to the prisoner, and the state must make out a case beyond a reasonable doubt, or you should find the defendant not guilty.

"21. The jury are instructed that a reasonable doubt, in the meaning of the law, is such a doubt as would cause a reasonably prudent and considerate man, in the graver and more important affairs of life, to pause and hesitate before acting upon the truth of the matters charged. The proof is deemed to be beyond a reasonable doubt when the evidence is sufficient to impress the judgment and understanding of ordinarily prudent men with a conviction on which they would act without hesitation in their own most important affairs of life.

"22. The jury are instructed that if, after a careful, impartial consideration of all the evidence in the case, they can say and feel that they have an abiding conviction of the guilt of the defendant, and are fully satisfied to a moral certainty of the truth of the charge made against him, then the jury are satisfied beyond a reasonable doubt. "23. The jury are instructed that, in order to justify a conviction of the defendant, the evidence must satisfy

Beers v. State.

them that the murder charged in the indictment was committed in the county of Lancaster and state of Nebraska, and at or about the time alleged in the indictment, and that the defendant is guilty beyond a reasonable doubt.”

I have quoted above the entire charge, but the objection of counsel is directed chiefly to the thirteenth and fifteenth instructions. At the hearing the attorney general appeared on the part of the state, and called the attention of the court to these instructions, and with commendable frankness declared his inability and unwillingness to defend the same, or to advise the court, in view of such erroneous statement of the law to the jury, that the conviction of the plaintiff in error could be sustained.

In the case of Milton v. The State, 6 Neb., 136, this court stated the law applicable to murder in the first degree. I quote from the syllabus: "Under our statute, to convict of murder in the first degree the evidence must show that the party accused perpetrated the act purposely ; that he did it with intent to kill; and of deliberate and premeditated malice. The words 'deliberate and premeditated malice,' in the statutory definition of murder in the first degree, were intended to restrict murder in that degree to cases where deliberation was shown to have taken place before the commission of the crime."

* * *

From this authority it is clear that the deliberate and premeditated malice with which the accused perpetrated the act of killing is matter of proof, without evidence of which there can be no conviction of murder in the first degree.

In the case at bar, by instruction thirteen above quoted, the jury are, in effect, told that the fact of the killing by shooting with a pistol being established by competent evidence, it devolved upon the accused to show some legal excuse for such unlawful and criminal act; otherwise deliberation and premeditation would be presumed. The effect of this instruction was to shift the burden of proof

Beers v. State

from the state to the accused, while it is the settled rule of law as we all understand it, that in this class of cases the burden of proof never shifts, but that every essential element and quality of the charge must be established by evidence beyond a reasonable doubt, or there can be no conviction of murder in the first degree.

If the learned court which delivered the charge intended to tell the jury that the evidence before them, of the accused having armed himself with a revolver loaded with powder and ball with the purpose of killing the deceased, and in pursuance of such purpose and intention fired the fatal shot which caused death, etc., was sufficient to prove deliberation and premeditation on the part of the accused, the charge was equally erroneous. While it is the province of the court to judge of the character, quality, and admissibility of evidence, its sufficiency to prove disputed facts on a trial before them is a question for the jury.

The other errors assigned will not be examined, as it is deemed best and most expedient to rest this opinion squarely upon the error in the giving of the thirteenth instruction, and the refusal of the trial court to grant a new trial for such error.

The judgment of the district court is reversed, and the cause remanded to that court for a new trial in accordance with law.

REESE, CH. J., concurs.

REVERSED AND REMANDED.

MAXWELL, J., dissenting.

I am unable to give my assent to the proposition that there is any evidence tending to show that the plaintiff was insane at the time he committed the homicide. The most that the evidence shows was certain personal peculiarities which were entirely consistent with a sound mind. Every

Beers v. State.

person possesses traits of character peculiar to himself, the outgrowth of his temperament, and the fact that one is morose, silent, sad, loquacious, merry, or morbid does not of itself prove or tend to prove the inability of the party to distinguish right from wrong, yet such proof is constantly resorted to for the purpose of convincing a willing jury that the person who in cold blood has taken the life of a fellow-being was not accountable therefor. Such a flimsy plea of insanity would be laughed out of court if presented as an excuse for forgery, burglary, or other like crimes, but when set up as a defense in a case of homicide -of deliberate murder, the highest crime known to the law-it is treated with respect and consideration, although both judge and jury have reason to believe it to be a sham. In addition to this, in proving the alleged peculiarities of the accused, a great deal of irrelevant matter is introduced before the jury, the tendency of which is to divert their minds from the main issue and obscure the offense charged. The jury, too, are frequently misled in regard to the proof introduced to prove insanity. Suppose that the proof consists largely, as in this case, of evidence that the accused had complained of headache at various times, and that he was frequently moody and silent, but without any proof of his inability to distinguish right from wrong, and the court should treat such evidence sufficient to shift the burden of proof of the prisoner's sanity upon the state, the jury might, and no doubt in many cases would, from that circumstance alone, relying on the superior knowledge of the judge, return a verdict of not guilty, upon the ground of insanity. To justify an acquittal on the ground of insanity, the testimony should show that the person committing the offense did not retain a degree of reason sufficient to discern the difference between moral good and evil. Wright v. People, 4 Neb., 409. Hopps v. People, 31 Ill., 385. Freeman v. People, 4 Denio, 28. The test as stated by this court in Wright v. People, supra, is the power to

Beers v. State.

discern the difference between moral good and evil at the time the offense was committed. No matter what personal peculiarities an individual may possess, if this power remains his liability continues, and this fact should not be lost sight of by juries.

For the poor unfortunate who has lost his reason, and while in this condition commits homicide, we have naught but pity, and no court or jury can be found which would convict in such a case; but the case is entirely different where a person, sane in every respect so far as can be observed, with premeditation and deliberation commits a murder. In such case the safety and well-being of society require that the murderer be punished, and the commission of crime thereby be discouraged. No pretense of insanity should be entertained, and unless the evidence tends to show the inability of the accused to distinguish right from wrong it should not be submitted to the jury.

It is probable that the judge, in his desire to give the accused a fair trial, permitted his attorney to introduce evidence showing certain peculiarities of character of the accused, and having admitted such evidence in accordance with the practice in this state, submitted it to the jury for what it was worth, although it is apparent that in his opinion the proof failed to establish insanity. There being no proof, therefore, tending to show that fact, the instructions relating to that subject could not have prejudiced the accused. It is apparent that the ends of justice would be subserved by empowering district judges to withdraw evidence from the jury, the sole purpose of which was to show insanity, where it fails in any degree to establish that fact.