that the representation was false? It is charged that Asher had previously executed a mortgage to his co-defendant, Fitzpatrick, for the full value of the land and that it was the prior lien; but it is also charged that Fitzpatrick counselled Asher to make the representation that the land was free from incumbrance and aided him in obtaining the mules from Moore on the faith of it. The demurrer admits that these allegations are true. Being true, the legal conclusion is that Fitzpatrick waived the priority of his lien and is estopped from asserting it against Moore. Scott v. Orbison, 21 Ark. 202; Gill v. Hardin, 48 Ark. 412; Shields v. Smith, 37 Id. 47.

Asher's representation that Moore's mortgage was the prior lien was therefore true. Moore got just what he bargained for, according to the allegations of the indictment, and he has not, therefore, been injured in any way. The statutory offence has not been committed. Morgan v. State, 42 Ark. 131. It is not, as counsel for the State argues, an attempt to have an offence condoned by repairing the injury done in its commission. There has been no criminal offence.

Moore might have been injured by the transaction if Fitzpatrick's mortgage-note had been negotiated according to the law merchant and assigned to an innocent holder for value before maturity. But there is no allegation of the existence of either of these facts, and there is no presumption that that state of facts exists. People v. Stone, 11 Wheat. 182-190.

Affirm.1

CHAPTER V.

CULPABILITY: MODIFYING CIRCUMSTANCES.

SECTION I.

Insanity.

M'NAGHTEN'S CASE.

ANSWER OF THE JUDGES TO THE HOUSE OF LORDS. 1843.

[Reported 10 Clark & Finnelly, 200.]

THE prisoner had been indicted for the murder of Edward Drummond. The prisoner pleaded" Not guilty." Evidence having been given of the fact of the shooting of Mr. Drummond, and of his death in consequence thereof, witnesses were called on the part of the prisoner to prove that he was not, at the time of committing the act, in a sound state of mind.

LORD CHIEF JUSTICE TINDAL (in his charge). The question to be determined is, whether at the time the act in question was committed, the prisoner had or had not the use of his understanding, so as to know that he was doing a wrong or wicked act. If the jurors should be of opinion that the prisoner was not sensible, at the time he committed it, that he was violating the laws both of God and man, then he would be entitled to a verdict in his favor: but if, on the contrary, they were of opinion that when he committed the act he was in a sound state of mind, then their verdict must be against him.

Verdict, Not guilty, on the ground of insanity.

This verdict, and the question of the nature and extent of the unsoundness of mind which would excuse the commission of a felony of this sort having been made the subject of debate in the House of Lords, it was determined to take the opinion of the judges on the law governing such cases. Accordingly the judges attended the House of Lords; when (no argument having been had) questions of law were propounded to them.

LORD CHIEF JUSTICE TINDAL. My Lords, her Majesty's judges (with the exception of Mr. Justice Maule, who has stated his opinion to your Lordships), in answering the questions proposed to them by your Lordships' House, think it right, in the first place, to state

1 The statement of facts in this case has been abridged.

that they have forborne entering into any particular discussion upon these questions, from the extreme and almost insuperable difficulty of applying those answers to cases in which the facts are not brought judicially before them. The facts of each particular case must of necessity present themselves with endless variety, and with every shade of difference in each case; and as it is their duty to declare the law upon each particular case, on facts proved before them, and after hearing argument of counsel thereon, they deem it at once impracticable, and at the same time dangerous to the administration of justice, if it were practicable, to attempt to make minute applications of the principles involved in the answers given by them to your Lordships' questions.

They have therefore confined their answers to the statement of that which they hold to be the law upon the abstract questions proposed by your Lordships; and as they deem it unnecessary, in this particular case, to deliver their opinions seriatim, and as all concur in the same opinion, they desire me to express such their unanimous opinion to your Lordships.

The first question proposed by your Lordships is this: "What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons; as, for instance, where at the time of the commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?"

In answer to which question, assuming that your Lordships' inquiries are confined to those persons who labor under such partial delusions only, and are not in other respects insane, we are of opinion that, notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law; by which expression we understand your Lordships to mean the law of the land.

Your Lordships are pleased to inquire of us, secondly: "What are the proper questions to be submitted to the jury, where a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons is charged with the commission of a crime (murder, for example), and insanity is set up as a defence?" And, thirdly: "In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time when the act was committed?" And as these two questions appear to us to be more conveniently answered together, we have to submit our opinion to be, that the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason

to be responsible for his crimes, until the contrary be proved to thei: satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.' The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act, knew the difference between right and wrong: which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate, when put generally and in the abstract, as when put with reference to the party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction, whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course therefore has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong; and this course we think is correct, accompanied with such observations and explanations as the circumstances of each particular case may require.

The fourth question which your Lordships have proposed to us is this: "If a person under an insane delusion as to existing facts commits an offence in consequence thereof, is he thereby excused?" To which question the answer must of course depend on the nature of the delusion; but making the same assumption as we did before, namely, that he labors under such partial delusions only, and is not in other respects insane, we think he must be considered in the same

1 "I think that any one would fall within the description in question who was deprived by disease affecting the mind of the power of passing a rational judgment on the moral character of the act which he meant to do. Suppose, for instance, that by reason of disease of the brain a man's mind is filled with delusions which, if true, would not justify or excuse his proposed act, but which in themselves are so wild and astonishing as to make it impossible for him to reason about them calmly, or to reason calmly on matters connected with them. Suppose, too, that the succession of insane thoughts of one kind and another is so rapid as to confuse him; and finally, suppose that his will is weakened by his disease, that he is unequal to the effort of calm sustained thought upon any subject, and especially upon subjects connected with his delusion; can he be said to know or have a capacity of knowing that the act which he proposes to do is wrong? I should say he could not." 2 Stephen Hist. Crim Law, 164. ED

situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in selfdefence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.1

REGINA v. HAYNES.

WINCHESTER ASSIZES. 1859.

[Reported Foster & Finlayson, 666.]

THE prisoner, a soldier, was charged with the murder of Mary MacGowan, at the camp at Aldershott.

The deceased was an "unfortunate woman" with whom the prisoner had been intimate, and was on the most friendly terms up to the moment of the commission of the offence. No motive was assigned

for the perpetration of the act; and general evidence was given that the prisoner, while in Canada, having seduced a young woman under a promise of marriage, which he had been unable to fulfil by reason of his regiment having been ordered home, his mind had been much affected by the circumstance.2

BRAMWELL, B., to the jury. As to the defence of insanity set up for the prisoner, I will read you what the law is as stated by the judges in answer to questions put to them by the House of Lords. (Having done so.) It has been urged for the prisoner that you should acquit him on the ground that, it being impossible to assign any motive for the perpetration of the offence, he must have been acting under what is called a powerful and irresistible influence or homicidal tendency. But I must remark as to that that the circumstance of an act being apparently motiveless is not a ground from which you can safely infer

1 The answer to the fifth question is omitted. MAULE, J. delivered a separate opinion, which he prefaced by stating that he felt great difficulty in answering the questions: first, because they did not appear to arise out of a particular case, which might explain or limit the generality of their terms; secondly, because he had heard no argument on the subject of the questions; and thirdly, from a fear that the answers might embarrass the administration of justice, when they should be cited in criminal trials. In reply to the first question he said that "to render a person irresponsible for crime on account of unsoundness of mind, the unsoundness should be such as renders him incapable of knowing right from wrong." In reply to the second and third questions, he said that the matters referred to in them were entirely within the discretion of the judge trying the case. To the fourth question he gave the same answer as to the first. - ED.

Part of the case, relating to another point, is omitted.