Page:The Great Harry Thaw Case.djvu/288



of man, and wherein insanity is the plea that becomes the crucial question for the jury to decide.

"If there existed in the mind of the defendant an insane illusion it is not an excuse unless the illusion is of such a character that if true it would result in his injury.

"Proof of partial or incipient insanity is not sufficient as an excuse. The settled law of the state is that so long as that power to appreciate the nature and quality of the act is present no man must commit crime if he would escape the consequences.

"Under the rules of evidence the story, claimed by the defendant prior and subsequent to this tragedy and prior is admittd, not as affecting the character of the deceased, but that you might consider what effect such a story had on the defendant's mind.

"In considering her story, her credibility as a witness is highly material, and everything that she has said or done must be taken into consideration. Her admissions regarding the relations existing between herself and the defendant prior and subsequent to this tragedy and prior to her marriage or any other act should be weighed in connection with her story.

"A wide latitude was allowed on cross-examination. You should give due credit to all that was developed along with other facts.

"There has been no denial entered here that death resulted from pistol shot wounds inflicted by the defendant. he committed the act. It was not incumbent upon the prosecution to introduce preliminary testimony to show that he was sane. The burden of proof is upon the defense. Whoever denies sanity must prove that insanity is present. The burden of proving a crime is on the prosecution, but the burden of overthrowing sanity is on the person claiming it.