Page:Federal Reporter, 1st Series, Volume 10.djvu/177

 guiteau'b case. 165 �That the wound caused the death has been testified to by the sur- geons most competent to speak on that subject, and they are -\incon- tradicted. �That the homicide was comraitted with malice aforethought, if the defendant was capable of criminal intent and malice, can hardly be gainsaid if you will bear in mind what I have already said. It is not necessary to prove that any special and express hatred or malice was entertained by the accused towards the deceased. It is sufficient to prove that the act was done with deliberate intent, as distinct from an aet done under the sudden impulse of passion, and in the beat of blood, and without previous malice. �Evidence has been exhibited to you tending to show that the defendant, in his own handwriting, admitted that he had conceived the idea of removing the president, as he calls it, some six weeks before the shooting, and had deliberated upon it, and corne to a determination to do it, and that about two weeks before he accom- plished it, he stationed himself for the purpose, but some relentings delayed the attempt. His preparation for it by the purchase of the pistol has been detailed to you. all these facts, if believed by you, corne up to the full measure of proof required to establish what the law denominates malice aforethought. �And thus, I apprehend, that you will have little difiSculty in reach- ing a conclusion as to all the elements that make up the crime charged in the indictment, unless it be the one of "sound memory and discretion," as it is called, which is only a technical expression for a Sound mind. We now approach the difficult question in this case. �I have said that a man who is insane, in a sense that makes him irresponsible, cannot commit a crime. �The defence of insanity has been so abused as to be brought into great discredit. It has been the last resort in cases of unquestionable guilt, and has been the excuse to juries for acquittai, when their own and the public sympathy have been with the accused, and especially when the provocation to homicide has excused it according to public sentiment, but not according to law. For these reasons, it is viewed with suspicion and disfavor, whenever public sentiment is hostile to the accused. Nevertheless, if insanity be established to the degree that has been already, in part, and will hereafter further be explained, it is a perfect defence to an indictment for murder, and must be allowed full weight. �Now, it is first to be observed that we are not troubled in this case with any question about what may be called total insanity, such as ��� �