Opinion of the Court.

lows: "Proof of prior insanity throws upon the state the burden of proving the crime perpetrated during a lucid interval. It defeats the legal presumption of sanity and creates a legal presumption of continued lunacy." The particular vice of this instruction is that it states the rule too broadly. It is doubtless true that insanity is often chronic and permanent, for instance from senile-dementia and congenital idiocy there can be as a rule no recovery, and where insanity in such form is once proven to exist its continuance may be inferred or presumed, such inference or presumption however being one of fact and not of law. There are perhaps but few other forms of insanity of which recovery may not be predicated, at least as a contingency, and as to these no presumption whatever is indulged or recognized that they are continuing in their nature. Underhill on Criminal Evidence, sec. 156.

Therefore, the burden being upon the defendant to show that he was insane at the time of the commission of the particular act charged, proof of mere temporary or recurrent insanity, such as is shown in this case, at a time prior thereto, is clearly not sufficient to rebut or overcome the legal presumption of his sanity and to impose upon the state the burden of proving that at the time the act was committed the defendant was then sane. The burden of proof does not shift but all along it rests with the defendant, and if in any case he would overcome the legal presumption of his sanity and would exonerate himself from liability he must show by a preponderance of the evidence that at the time of the commission of the alleged criminal act he was then so far mentally deranged or unsound as not to be answerable or accountable for his act. While proof of prior in

Opinion of the Court.

sanity is competent, whether a mental condition shown to exist has continued down to the time of the commission of the alleged criminal act is solely a question of fact to be determined by the jury. And the defendant in a criminal case who sets up insanity as a defense does not relieve himself from showing his insanity at the very time of the commission of the criminal act, by proof merely that he was insane at an earlier time. In the case of Wheeler v. The State, 34 Ohio St., 395, A, being on trial for a crime, relied on insanity as a defense and as evidence tending to prove this defense offered a record from the probate court showing that four years previous to the commission of the alleged crime an inquest had been held in that court, and that he had been adjudged insane and confined in an asylum, the court held that the evidence was admissible, but the learned judge who wrote the opinion in that case, speaking of the office and effect to be given to such evidence, at page 396 says: "Inquests of this character are analogous to proceedings in rem, affecting the general and public interest, and no one can strictly be regarded as a stranger to them. And such condition of things as the insanity of a party being shown, there is a presumption of more or less force, according to circumstances, that the same condition continued. Nor does the time which may have elapsed since the inquest was held affect the question of its admissibility (Sergeson v. Sealey, 2 Atkyns, 412), though of course, it may have great force on the question of the weight of the evidence.

"Ordinarily such inquisitions are not conclusive, but only prima facie evidence of incapacity, as will be seen from the authorities cited; but, on a question

Syllabus.

like that in issue here, it is manifest they cannot be regarded as even prima facie evidence."

In the present case the jury was correctly instructed by the trial court on the question of the burden of proof and on the matter of insanity as a defense, and for the reasons we have herein stated we think there was no error in refusing to give the instruction asked by defendant in the form it was requested.

Finding no error in the record such as warranted the reversal of the judgment of conviction in this case, the judgment of the circuit court must be reversed and that of the common pleas affirmed.

Judgment accordingly.

SPEAR, C. J., DAVIS, SHAUCK, PRICE and SUMMERS, JJ., concur.

DAVIES V. THE NEW CASTLE & LOWELL RAILWAY CO. Bill of exceptions-Must be filed within forty days, when-Section 5301, Revised Statutes-Substantial compliance therewith-Transmission of bill by clerk to trial judge-Need not be by manual delivery-Court procedure.

1. Under the provisions of section 5301, Revised Statutes, aз passed October 22, 1902, it is incumbent upon the party taking a bill of exceptions, to file the same in the cause with the clerk of the court within forty days after the overruling of the motion for new trial, or the decision of the court excepted to, where a motion for a new trial is not filed, and having done this he has performed all the duties imposed upon him by the statute.

2. Where the record shows that the party excepting filed his bill of exceptions with the clerk on the fifteenth day of August, 1903, that being within the time prescribed for that duty, and that on the tenth of September, 1903, the clerk transmitted the same to the "court," and that the bill was re

Statement of the Case.

ceived by the "court" as shown by his endorsement on the seventeenth day of September, 1903, signed “T. I. Gilmer, Judge of the Court of Common Pleas;"-and where the record further shows that on the eighteenth day of September, 1903, the bill was signed and returned to the clerk of the court, under the endorsement "T. I. Gilmer, Judge," and that on the same day the bill was received and filed by the clerk-there has been a substantial compliance with the statute, and it is not error to overrule a motion to strike such bill from the files.

3. The transmission of the bill by the clerk to the trial judge need not be by personal or manual delivery to him, but may be made in other manner equally safe and reliable, the intent of the law being that the bill reach the trial judge within the statutory period, without opportunity to any one to tamper with or change it.

(No. 9110-Decided January 17, 1905.)

ERROR to the Circuit Court of Mahoning county. The action in the court of common pleas against the railway company was for the recovery of damages for personal injuries, sustained by the plaintiff in error, while in the employ of defendant in error, which it is alleged, were caused by the negligence of the railway company.

On the issues joined between the parties, the jury returned a verdict for the plaintiff. The court overruled a motion for new trial, and rendered judgment on the verdict.

The railway company excepted and took a bill of exceptions containing the evidence and other proceedings had at the trial, and filed the same in the circuit court, with a petition in error, praying for the reversal of the judgment rendered in the court of common pleas. The verdict was returned on the fifth day of June, 1903, and the motion for new trial was overruled on the twentieth day of July, 1903, and the judgment was entered upon the same day.

Statement of the Case.

The following docket entries and filemarks show the history of the bill of exceptions after it had been prepared:

"This bill filed with the clerk, August 15, 1903. J. Howard Edwards, Clerk.

"Adverse party notified of the filing of this bill August 15, 1903. J. Howard Edwards, Clerk.

"Objections filed by adverse party August 19, 1903. J. Howard Edwards, Clerk.

"This bill transmitted to the court by the clerk, this tenth day of September, 1903. J. Howard Edwards, Clerk.

"This bill received by the court September 17, 1903. T. I. Gilmer, Judge of the Court of Common Pleas.

"On this eighteenth day of September, 1903, this bill returned to the clerk. T. I. Gilmer, Judge.

"On the eighteenth day of September, A. D. 1903, this bill received by the clerk and filed. J. Howard Edwards, Clerk."

The plaintiff in error filed his motion in the circuit court. to strike the bill of exceptions from the files for the reason "that said bill of exceptions was not transmitted by the clerk to the trial judge within fifteen days after forty days from the overruling of the motion for a new trial, and that said bill of exceptions was not signed by the trial judge and transmitted to the clerk of the court of common pleas of Mahoning county, Ohio, within the time required by the provisions of the statutes of Ohio."

Before the motion was disposed of, the plaintiff in error asked leave to amend the motion as follows: "First: That said bill of exceptions is not authenticated in the manner and within the times as