6 this time, dead in the bed, I expect. There | Barber came. She had been to bed a little was blood all over on the floor, piles of it. while before I went to the barn. After I After he left I got out of the house. The was struck by Barber I did not call to my lamps and glass fell down, and a great smoke rose up and flames, and I crept out of doors under the flame and smoke. I crept through the little hall and through the woodshed, and out to the wood-pile in the orchard. Mr. Milt Cuffman and Fred Woodin came there. I had some money in the house. Between one hundred dollars and two hundred dollars, more or less,-fifty-dollars paper piece of money, and twenty-dollars gold piece of money, and the rest in bills, and some silver. I got thirty-six dollars and some cents for apples from Ed. Murphy something less than a week before this occurred. I sold two fat pigs and a calf to Charles Thompson, the butcher, for thirty dollars. Got my pay a little time before this 16th of March,-a week or so. I sold two cows some two or three weeks before that to Charles Thompson for $24. Barber had been to visit me about three weeks before this. He stayed there one afternoon. He has visited me there three or four times during the year before. I had the fifty-dollar bill and the twenty-dollar gold piece before the sale of the apples, pigs, calf, and cow." wife. After I got up from the blow I guess I did call to her but got no answer back. That was before Richard Barber went into my wife's room. He then went directly into my wife's room and commenced pounding her. She hallooed Murder!' and screamed quite loud. She screamed four or five times. I heard him continue pounding her, and heard her groan. The groanings and screaming ceased after awhile,-long enough for her to die. I had conversation with him about coming out from under the table lasting three-quarters of an hour or an hour after he left my wife's room. I never saw what Barber had in his hand. Could not see. There was some kindling wood on the floor where Barber and I sat. It was some of it apple and some of it cherry, dry and hard. Those pieces were about 16 inches long; some of them two inches square, and some smal.er,-an inch or so. He struck me two or three times before I fell to the floor, on the back of my head, as I was passing by. Don't remember as he struck me after I fell to the floor. Barber and I were on the best of terms prior to this. Before this, during the winter, Mr. Davis cross-examines the witness: "I he had made me a present of two old vests that don't remember when I got the fifty-dollar I could wear in the summer. I believe he told bill and gold piece for twenty dollars; some me that evening that he was expecting to go time ago, perhaps ten years ago. My wife to work in Lansing the following Sunday. I was my banker. I did not know what believe he said something about it. He used money was in the house on this 16th of to come to the house and see my wife, and March, more than you do. I took some sil-play on the accordion. She liked music, and ver from the house a few days before that. Did not take all the silver. Don't remember how much I did take away. I took a dip at it and run. My wife did not hand me the money that I took away. I asked her for some money to buy feed at Waterburg. There was some one hundred and thirty dollars in the house on this 16th of March. ReRemember of seeing this money within the house within the last year several times. I saw it in the big room. She used to fetch it out of the buttery in a tin painted blue. Think I am sure she kept that money in the buttery. I did not know where this money was. Whether the defendant knew about this money I can't say. Nothing had ever occurred between us. We were just as good friends as kittens. When I went out that evening to the barn to see the cows, I took a lighted lantern with me when I left the house. I was gone to the barn about three-quarters of an hour. It might have been less than three-quarters of an hour. It might have been less than one-half of an hour, but I think not. When I came back from the barn I saw Barber at the well-curb. The well-curb was about two or three yards north-west of the kitchen door. Think Barber and I sat there visiting about an hour before the assault commenced. We were talking and visiting pleasantly, entirely so. My wife went to bed before I went to the barn, and about three-quarters of an hour before liked to hear him play. The accordion was twenty dollars and twenty-four dollars, or about that, in my pocket as I lay on the floor that night." Re-direct by Mr. Dean: "I and my wife were the only ones there that night except Barber. I did not keep candles or have candles about the house at the time of this assault. I had not kept candles there for a great many years. The table or bureau I crept under was a high-legged bureau or table with drawers in the upper part, and open underneath." taken on commission, testified that he was 53 years of age, and attended at the birth of Richard Barber, and on more than 40 occasions during his childhood was called to treat him professionally for severe epileptic fits, and that these attacks were attended with delirium and violence; that he was the family physician of many of the relatives of the defendant. He testified: "Richard Barber himself was affected with epilepsy; also his grandfather, Thomas Johnson; his aunt Ann Johnson was rendered insane by epileptic It seems probable that Barber used a piece seizures, and is now a lunatic, and confined of the kindling wood in making the assault in an asylum; his aunt Elizabeth Louth; his on Mason and his wife, taking it from the cousin John Louth, who developed epilepsy floor, where it was lying within reach prior about the age of twenty; his cousin Thomas to the assault. The fire was seen, and neigh-Louth's two children; several of his brothers bors and others soon came to the scene. and sisters, two of whom died from epilepsy; Richard Mason was found near an outhouse, his great-uncle William Johnson had violent and was taken to a neighboring house. The epilepsy, and was drowned in a ditch during house burned to the ground, and the charred an attack of epilepsy; his cousin Fanny Holremains of Ann Mason were found in the land; his grandfather's cousin Thomas Johncellar under the place where she was sleeping son of Millthorp, who committed suicide by at the time of the assault. Whether she was Whether she was hanging,-have all been subject to epileptic killed by the blows or burned to death was fits, and have been attended by me profesleft in doubt. The jury in the first instance sionally for such disease. All of the family returned a verdict of guilty of arson in the named in the previous answer were at times first degree, and, being instructed by the highly nervous and excitable. Richard Barjudge that this form of verdict was improper, ber's grandfather Thomas Johnson, and retired a second time, and then returned with aunt Ann M. Johnson, were especially excita verdict of guilty of murder in the first de-able and passionate, and extremely impatient gree. Barber was first seen after the fire in of control or contradiction." the highway, about a mile from the Mason Sarah Barber, the mother of the defendant, house, towards Trumansburgh, by a witness a resident of Billingsborough, testified that who knew of the tragedy, and that Barber she had had nine children, all of whom had was suspected, and had started in a cutter been subject to fits; that two died in fits in from Trumansburgh to go to the Mason infancy; that her son Thomas, (a soldier,) aged house. He knew Barber, and asked him to twenty-two years, had had fits occasionally up ride back to the village with him, to which to the time of his leaving England, three years Barber assented, and on the way he proposed ago; that her daughters Mary Ann and Marto Barber to go to a dance there, to which he tha suffered severely from fits until they were also assented. The witness drove to the about eight years of age, and also her son door of the barn of the hotel, and asked Bar-John Samuel; that her son William, twelve ber to open the door, which he did, and, while the witness was tying his horse, Barber walked away "fast," and was followed up and arrested a few rods from the barn. He was searched, and there were found upon him a pocket knife; small change, less than a dollar in amount; a piece of candle wrapped in a paper; a pair of mittens; and a pocket-book. After his arrest, and on the same night, he was taken to the house where Mason was, and was identified by him, and on being asked by Mason why he killed his wife, and pounded him, at first made no reply, but finally said, "I do not remember doing it." The defense sought to establish that the defendant had an inherited tendency to epilepsy, and also that up to the age of nine years he had been the subject of frequent epileptic seizures. The most important evidence on their part was that of a Dr. Thomas Blasson, of Billingsborough, England, a medical practitioner of 32 years' standing, a member of the Royal College of Surgeons of England, and a licentiate of the Apothecary Society of London, and the testimony of the defendant's mother. Dr. Blasson, whose evidence was years of age, had been subject to fits all his life; that Richard (defendant) had fits almost weekly, sometimes several times a week, until he was nine years of age; that he was always very violent during these attacks, and had to be restrained by force to prevent him from doing injury to others; that there was no warning of these attacks; and that the children were left weak and nervous after the fits, and this condition would last about two hours, when they would appear about the same as before. Mrs. Barber corroborated Dr. Blasson as to other relatives having been affected with the same disease. The defense called a large number of experts who, in answer to a hypothetical question founded upon the proof of hereditary predisposition of the defendant to epilepsy, his medical history during his childhood, and his physical condition during the winter prior to the homicide, as testified to by Mr. Donahue and others, and all the circumstances of the transaction, stated without hesitation that in their judgment the defendant at the time of the alleged homicide was in a state of epileptic furor, one of the manifestations of the disease, A. A. Hungerford, (Geo. B. Davis, of counsel,) for appellant. J. H. Jennings, Dist. Atty., for respondent. which rendered him uncontrollable, and un-I was shown that the Masons had between one conscious of the character of his acts. The and two hundred dollars in money in the medical witnesses for the defendant embraced house, in the custody of Mrs. Mason, and some of the most distinguished alienists in kept by her in the buttery. The money was the country, and also men of large experience in bills, excepting a $20 gold piece and a litas general practitioners. The prosecution also tle silver. There is no evidence that Barber called numerous physicians, who expressed knew there was any money in the house. the opinion that upon the facts appearing in The inference from the testimony of Richard the case the defendant was not insane, and Mason is that he did not know of it. When was not under the influence of epileptic furor Barber was searched an hour or two after he at the time of the alleged homicide. Their left the house, no money was found upon opinion was largely influenced by the consid- him, except a few shillings in change. The erations: (1) The absence of any evidence of bills which were in the Mason house may epilepsy in the defendant since childhood; (2) have been burned in the fire, and the gold his cautiousness, and the apparent possession piece (if in fact there was a gold piece) may by the defendant of his observing and reason- have been lost among the débris, or may have ing faculties at the time of the homicide; (3) been taken by some of the many persons who his supposed attempt to hide his crime and visited the scene of the tragedy. There is elude observation after the homicide. Other not the slightest evidence that Barber had at facts are referred to in the opinion. any time any of the money in his possession. The recital by Richard Mason of the transaction at the house tends strongly to refute any suggestion that Barber searched for or took any money from the house. The $20 which ANDREWS, J., (after stating the facts as Mason testifies he had in his pocket was not above.) The evidence establishes beyond touched. The evidence of Richard Mason is question that the death of Ann Mason was conclusive that there was no quarrel between caused either by the blows inflicted by Rich- himself and Barber, and that nothing ocard Barber, or by the fire which he set, from curred between them to excite sudden anger which, by reason of her injuries, she was un- on the part of Barber, or to provoke an asable to escape. It is not denied that Barber sault. There was not only an absence of was the actor in the tragedy which resulted any evidence of motive on the part of Barber in the death of one human being, and ulti- to injure the Masons, but they were among mately in the insanity of another. These two his best friends. The defendant became acold people, having outlived the ordinary limit quainted with them soon after he came to of life, at last were by the act of one whom this country, he then being a lad 19 years of they had treated with the greatest kindness age. The Masons were persons in humble subjected to these irreparable injuries. If circumstances, advanced in years, and childthe act of Barber was that of a sane man, le- less. Mason was also an Englishman. Bargally responsible for his conduct, the verdict ber visited them quite frequently, and the reof the jury and the judgment of death were lations between them and Barber became of never in any case more fitly rendered. The the most friendly character. Little attenquestion of Barber's sanity was the sole tions and kindnesses were exchanged, and question litigated on the trial. To this ques- Barber regarded them as his "best friends in tion the voluminous evidence mainly pointed, America." The character of Barber prior to and we are called upon to determine, not the this transaction justified the confidence and final question of Barber's sanity or insanity, affection which these two old people exhibbecause that is and must be in the end aited towards him. The evidence is undisquestion of fact which a jury must deter-puted that he was industrious, temperate, mine, but simply whether, upon the whole case as it now appears to us, justice requires that a new trial should be had, and a new jury summoned to re-examine the question of Barber's criminal responsibility. It is unnecessary to say that we have examined the evidence and proceedings on the trial with great care. The case in many of its aspects is extraordinary, and, in reaching the conclusion that justice requires a new trial, we should be misunderstood if it should be inferred that there was anything in the conduct of the trial indicating that it was conducted in any spirit of unfairness towards the defendant. It is a striking feature of the case, which arrests the attention at the outset, that no motive for the murder of which the defendant has been convicted was shown, and, indeed, that no reasonable suggestion of such motive is discoverable from the evidence. It frugal, with no bad habits, of amiable disposition, and of quiet and reserved manner. This was his character in England before he came to this country, and was his character here. There is no evidence, or suggestion even, that prior to the transaction in question he had injured any one, or had exhibited any evil tendencies. The evidence of what occurred at the house of Mason on the night of the murder is confined to the testimony of Richard Mason. His story is given in full in the statement of the case. In one view, it describes an intentional, unprovoked, and murderous assault by Barber upon Richard Mason and Ann Mason, followed by an attempt to burn the house to conceal the evidence of his crime. In this view the story has extraordinary features. There was apparently no preparation to commit the crime. Barber had no weapon or deadly instrument with which to accomplish his purpose when | acter. It was claimed on the part of the dehe went to the house, if he then had murder fendant that during the winter of 1887-88 in his heart. The evidence tends to show there were indications that the defendant that he picked up the first implement at his suffered from nocturnal epilepsy. The Donahand with which to make the assault. One hues, with whom he had lived that winter, of the strange features of the history is the testified to various circumstances,-the conconduct of Barber in leaving the house on dition of his bed, incontinence of urine, and the entreaty of Mason, while Mason was still other facts, which experts testified were inalive, and under the bureau, without finish- dications of the disease. He had a skin dising his deadly work, seemingly accepting the ease during the winter, of an irritating charassurance of Mason that he could not get out, acter. He was said to be nervous and hagbut would be compelled to lie there, and burn gard. He complained of his head, and in the up with his wife. morning looked tired; and when playing checkers, as he sometimes did, he could not hold his attention. As we have said, the sole defense was insanity. The defendant's counsel sought to establish by evidence that the defendant at We have stated sufficient of the circumthe time was under the influence of epileptic stances developed on the trial to show that furor, caused by epilepsy, and that his acts the case is a remarkable one in many aspects, were the unconscious and uncontrollable re- and that, whatever the truth may be, the desult of epileptic mania. To sustain the de-fense of insanity was one most proper to be fense of insanity the defendant's counsel urged, and required most deliberate and caresought to prove an inherited predisposition ful consideration. It was assumed by all the to epilepsy in the defendant. Their most medical witnesses that if Barber, when he important evidence on the point was the tes- assaulted the Masons, was in a condition of timony of Dr. Blasson, an English surgeon epileptic mania, he was unconscious of the and physician of 32 years' practice, a resi- nature or character of his acts. The quesdent of Billingsborough, England, who had tion of motive was manifestly a most imporknown Barber from his birth, and who had tant consideration on the issue of insanity. been the family physician of the Barber fam- It is only at times that epileptics are unconily for many years, and had professionally scious or irresponsible; that is, when the disattended many of the maternal relatives of ease breaks out into what is known as "epiBarber during attacks of epilepsy. Dr. Blas-leptic furor," which may come without speson's testimony was corroborated by evidence cial warning, and after a brief period pass of Barber's mother and other members of the away. The court was asked to charge the family, and was contradicted by no one. The jury that, if no motive had been established evidence of Dr. Blasson is fully recited in the for the crime, it should be regarded as imstatement which precedes the opinion. His portant on the question of epilepsy. This evidence, if credited, shows that for genera- request was refused, except as charged. The tions epilepsy had been a marked character-judge, in his charge, had said to the jury: istic among the maternal relatives of the defendant. His grandfather, his grandfather's cousin, his great-uncle, two aunts, several cousins, and all his brothers and sisters were, as Dr. Blasson testifies, epileptic, and were attended by him for that disease. One of the aunts became insane in consequence of the disease, and is now confined in an asylum; a great-uncle was drowned in an epileptic seizure; another relative committed suicide by hanging; and several of Barber's brothers and sisters have died from the disease. In short, the medical history of the family, as related by Dr. Blasson, exhibits a record of cerebral disease resulting from epilepsy of the most marked and striking character. All the experts on both sides who testified on the subject unite in saying that hereditary predisposition is the great cause of epilepsy. Barber, up to the age of nine years, had frequent fits, accompanied by violence and delirium. Dr. Blasson, who attended him on 40 or more of these occasions, declared that they were the fits of epilepsy. The remission of these attacks after that age for 18 years, without any known recurrence up to the time of the homicide, was regarded by some of the experts provided by the prosecution as indicating that the fits which Barber had in his childhood were not of an epileptic char-prosecution thereafter framed a series of "If there were in fact no motive for the atrocious murder, it does not need an expert to tell us that that is an important question in determining what was the condition of his mind. Whether there was a motive or not I will refer to hereafter." Referring to the subject afterwards, the court stated to the jury that it "was not necessary for the people to show you that there was an adequate motive for this act. And again: "It is not necessary for the people to show what his motive was, but they claim that the reason, and the method, and plan, and design apparent in the act which he did in itself indicate sanity, and indicate that there was method, and that there was motive for the act itself.” We think it would have been better if the learned judge had brought to the attention of the jury with more distinctness the consideration which should be given to the absence of motive as bearing upon the question of epilepsy. On both sides experts were examined, who expressed their opinion on hypothetical questions embodying the facts claimed to have been proved as to the sanity or insanity of the defendant at the time of the homicide. One of the questions was frained by the prosecution, and one by the defendant. The 66 not given as reasons for the opinion of experts on the main issue of sanity or insanity, but was ind pendent proof by opinion of the effect of certain facts in evidence upon the question of guilt or innocence, and of the mental operations of the defendant. At least so it might well have been regarded by the jury, and it is needless to say that in this view it was damaging to the defendant. On consideration of the whole case we think a new trial would subserve the ends of justice. We express no opinion as to how the case should be finally decided. This is not our province, nor have we the responsibility of the final issue. The facts relied upon by the prosecution to show the adaptation of means to ends, the alleged flight across the fields, the conduct of the defendant after his arrest, his calmness of demeanor both at the house and afterwards, are factors of importance upon the question of the defendant's legal responsibility. It will be the duty of the jury on a new trial to consider them in connection with the whole evidence, and theirs will be the final responsibility. Judgment reversed, and new trial granted. All concur, except FINCH, J., not voting. specific questions, which they propounded to | had committed-would he be liable to have the experts introduced by them, and which remorse, and flee from the deed or crime, or they were permitted to answer. We think would he help and assist, etc.? A. As soon some of these questions went beyond the per- as he came to himself, if these were his friends, missible scope of examination of experts. he would of course show remorse. If he atThe opinion of medical experts as to the sanity tempted to kill them he would run away." or insanity of the defendant, based upon testi-It cannot be doubted that many of these quesmony in the case, assumed for the purpose of tions and answers were improper. The inthe testimony to be true, was undoubtedly ferences to be drawn from the facts referred competent. So, in connection with their opin- to in the questions were matters for the jury. ion, they could be permitted to state the rea- They were within the range of ordinary judgson upon which it was founded. Mill Co. ment and experience, and were not the subv. Water-Power Co., 78 Me. 274.1 But in-ject of expert testimony. The evidence was ferences from the facts are to be drawn and found by the jury, and cannot be proved as facts by the opinion of witnesses. The evidence given under the special questions encroached, we think, upon the domain of the jury, and exceeded the reasonable boundaries of expert evidence. The following questions and answers are illustrations: Question. What do you say as to his holding the doorknob, and looking up and down the road? Answer. That is evidence of consciousness. Q. Does it indicate apprehension? A. Yes, sir; it does. Q. What does it indicate, the absence of blood on his person? A. That he knew enough not to leave marks on his person that should identify the crime. Q. What do you say of his stating to an acquaintance whom he met, who informed him that the fire was at Waterburgh, that he thought so too, what would that indicate to you? A. It would indicate that he lied if he was moving away from it. Q. His hastening away from the barn, what do you say to that? A. It would indicate that he knew he had done something he ought not to have done, and something to run away from. Q. And his not asking why he was arrested, what do you say to that? A. That he already had a knowledge of the act which he concealed. Q. If he remained watching the fire, and, when it got a pretty good headway, Mason said to him, Why don't you go away; I can't get out of here; I shall lie here and perish and burn up with my wife,' after Mason assured him he could not get up, and he should then not be construed so as to secure the benefit of a leave, would that show knowledge of what will to a legatee who has killed the testator in orhe was about, and a design, a belief, and in-der to prevent a revocation of the will. GRAY and tent on his part that Mason should lie there, DANFORTH, JJ., dissenting. and burn up with his wife,-what would that indicate? A. It would indicate that he knew what he was about. Q. That he understood and believed what Mason told him? A. Certainly.. Q. And that he acted upon that belief of what Mason told him? A. Čer- EARL, J. On the 13th day of August, tainly. Q. What did his breaking his agree- 1880, Francis B. Palmer made his last will ment to go to the opera-house, and hastening and testament, in which he gave small legaway from that barn, show? A. It showed acies to his two daughters, Mrs. Riggs and an attempt to escape. Q. And did it show Mrs. Preston, the plaintiffs in this action, also a knowledge or consciousness of a wrong- and the remainder of his estate to his grandful act committed? A. Certainly. Q. Would son, the defendant Elmer E. Palmer, subject a person who was committing an act of vio-to the support of Susan Palmer, his mother, lence during an epileptic seizure-could he return to consciousness before completing the crime, and see before him the crime he 6 14 Atl. Rep. 555. (115 N. Y. 506) RIGGS et al. v. PALMER et al. (Court of Appeals of New York. Oct. 8, 1889.) RIGHTS OF LEGATEES-MURDER OF TESTATOR. The laws of New York relating to the probate of wills and the distributions of estates will Appeal from supreme court, general term, third department. Leslie W. Russell, for appellants. W. M. Hawkins, for respondents. with a gift over to the two daughters, subject to the support of Mrs. Palmer in case Elmer should survive him and die under age, unmarried, and without any issue. The testator, at the date of his will, owned a farm, |