(107 A.)

rated above. Reese v. Clark, 198 Pa. 312-319, | either direct or collateral, as a ground for a 47 Atl. 994; Porter v. Wilson, supra. His in- presumption of possible insanity in defendant. experience in the work accounts for his in- there must be some evidence showing his inability to appreciate the possible dangers, sanity, and it must also appear that the afflic which, in a person of understanding, would tion is hereditary or transmissible, so as to taint the family blood. have constituted contributory negligence.

[7] While pieces of steel occasionally came in contact with his face, a skillful operator could have avoided them, and the danger was not so apparent that the court could say, as a matter of law, that he should have known that a piece might strike him with sufficient force to inflict the injury received. Had he been instructed how to hold the tool, no doubt the injury would not have resulted. He had been at work a day and a half when the accident occurred. It was for the jury to determine under all the evidence, whether he should have known the probable effect of a few pieces of steel flying around him. Broce v. Seaboard Construction Co., 263 Pa. 184, 106 Atl. 300.

The assignments of error are overruled, and the judgment is affirmed.

(264 Pa. 362)

COMMONWEALTH v. DALE.

6. CRIMINAL LAW 338(3)—EVIDENCE-HEREDITARY INSANITY.

If insanity is shown in accused, and also in his collateral kindred of not too remote a degree, and the insanity of all is transmissible or hereditary, in that it may or will reappear in some form or symptom in a descendant, it is admissible, without showing insanity in the direct line of accused's parents or grandparents. 7. WITNESSES 37(1)—HEREDITARY INSANITY-PERSONAL KNOWLEDGE.

Witnesses who testify to insanity in a defendant's ancestors, either direct or collateral, must do so from personal knowledge and observation, and not from reputation. 8. CRIMINAL LAW

338(3)—HEREDITARY INSANITY-ADMISSIBILITY OF EVIDENCE.

In trial for murder, where defense was insanity, defendant's father could not show that he had two other children who had been committed to an insane asylum, or that a sister of defendant's mother and children of her brother were of unsound mind, where there was no offer to prove that the insanity in such col

(Supreme Court of Pennsylvania. April 21, lateral kinsmen was transmissible.

1919.)

1. HOMICIDE 151(2) — INSANITY - Burden OF PROOF.

In trial for murder, wherein defense was

insanity, burden was on defendant to prove by a fair preponderance of evidence that he was insane when he killed deceased, and such burden rested on him throughout the trial, and he was bound, not only to adduce evidence as to his own insanity, but also such corroborating proofs as he desired to submit.

2. HOMICIDE 179-INSANITY-EVIDENCE.

In a trial for murder, wherein accused set up the defense of insanity, testimony of his father to his own insanity, or such acts from which it might be inferred, was inadmissible. 3. CRIMINAL LAW 338 (3)—INSANITY-EVIDENCE-HEREDITARY INSANITY.

Where the insanity of an individual is in question, the insanity of his blood relations in the ancestral line, either direct or collateral, may be shown in corroboration of the evidence showing insanity in the individual.

Appeal from Court of Oyer and Terminer, Schuylkill County.

in the first degree, and he appeals. Affirmed, and record remitted for purpose of execution according to law.

Alexander Dale was convicted of murder

At the trial when Samuel Dale, the father of the accused, and a witness on his behalf, was on the stand, the following offers were made:

Defendant's witness, Samuel Dale, being on the stand, the following offer and ruling occurred:

Mr. Leuschner (at side bar): We propose to prove by the witness that he himself has strange impulses; he suffers extremely from headaches and other affections of the head; that he has been that way from birth; that he feels coming onto him at times an impulse and a desire to kill; that he has often obtained a revolver when these impulses came upon him, and he was seized with a determination to kill his

4. CRIMINAL LAW 48, 570(1)-INSANITY- wife; that, however, he has been able to conCIRCUMSTANTIAL EVIDENCE HEREDITARY INSANITY.

Hereditary insanity of itself is not independent proof of the insanity of the accused, but is circumstantial evidence used to corroborate other more direct proof of his insanity, and of itself cannot be used as a defense.

5. CRIMINAL LAW 338(3)-EVIDENCE-HEREDITARY INSANITY.

Before receiving evidence of insanity of defendant's blood relations in the ancestral line,

trol these impulses and put away the instrument with which he wanted to kill; that there is a taint of insanity in his family, especially his children; that one of his daughters was committed to the insane asylum at Danville, in this state, where she died; that one of his sons was committed to the insane hospital at Rittersville and subsequently released, and this will be supported by testimony from these institutions; that there is a taint of insanity in the family of his wife; that her nephews, children of her brother, William Gibson, are in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(107 A.)

[3, 4] As to the second proposition, it was | Reichenbach v. Ruddach, 127 Pa. 564, 18 Atl. once ruled that it was not permissible to 432; State v. Van Tassel, 103 Iowa, 11, 72 prove, either in criminal or civil cases, that N. W. 497; In re Myer's Will, supra. other members of the same family have been decidedly insane. People v. Garbutt, 17 Mich. 9, 17, 97 Am. Dec. 162; A. & E. Encyc. of Law, vol. 16, p. 613. but that rule no longer obtains, as science teaches:

"That insanity of some varieties may be and even tends to be transmitted to descendants, is

[now] an accepted pathological fact. Moreover, since it is equally true that it may pass over a generation or an individual before reappearing, it follows that insanity in collateral relatives may indicate an anterior ancestral tendency capable of appearing in other collateral branches." Wigmore on Evidence, vol. 1, § 232, p. 288.

This last proposition is not entirely free from doubt in some states, and, though the insanity may be transmissible, the line in which it must appear is a little uncertain. The court below declined to receive the evi

dence, because there was no proof of insanity in the direct ancestral line, and while it was in error in so holding, under the offer and the record as it now stands its action in declining to receive this evidence must be approved. The question, as it bears on the last proposition of law, may be stated thus: In the absence of any proof whatever of insane conduct on the part of the accused's direct ancestry, may such existence be inferred from evidence to the effect that the acAnd the general rule is, where the insanity cused and his collateral ancestors of near of an individual is in question, the insanity degree were suffering from hereditary or of his blood relations in the ancestral line, ei- transmissible insanity, or had so suffered? ther direct or collateral, may be shown in Illustrations have been given in the textcorroboration of the evidence showing in- books and digests of instances where evisanity in the individual. In re Myer's Will, dence of insanity in blood relations of the ac184 N. Y. 54, 76 N. E. 920, 6 Ann. Cas. 26; cused, such as nieces, nephews, brothers, sisWalsh v. People, 88 N. Y. 458; Common- ters, uncles, and aunts, has been received. wealth v. Winnemore, 1 Brewster, 356; Peo In many of these cases it does not clearly ple v. Garbutt, supra; Prentis v. Bates, 88 appear that insanity in the direct ancestral Mich. 567, 50 N. W. 637; Id., 93 Mich. 234, 53 line had been previously shown. The reaN. W. 153, 17 L. R. A. 494; State v. Windsor, sons why such evidence should not be re5 Harr. (Del.) 512; Murphy v. Common- quired are well stated in a discussion of this wealth, 92 Ky. 485, 18 S. W. 163; Watts v. subject in Wharton & Stille's Medical JurisState, 99 Md. 30, 57 Atl. 542. Owing to the prudence, c. 30, and summed up by Wigmore, great abuse that has been made by the use supra, in the statement that hereditary insanof insanity as a defense in criminal prosecu- ity may pass over a generation or individutions, or as a reason for setting aside instru-al before reappearing later on. The difficulments in writing-wills, contracts, and deeds ty in obtaining proof in the direct ancestry -and the possibility of a trial being clogged is apparent. In People v. Garbutt, supra, with endless collateral issues, the courts where it was not claimed that either parent have been compelled to impose limitations on the admissibility of evidence showing a taint of insanity in direct or collateral kins

men.

Therefore it has been ruled that hereditary insanity of itself is not independent proof of the insanity of the prisoner, but it is circumstantial evidence used to corroborate other more direct proof of insanity in the accused. Of itself it cannot be used as a defense. 1 Wharton & Stille's Medical Jurisprudence; People v. Gamba corta, 197 N. Y. 181, 90 Atl. 809, 18 Ann. Cas. 425; Wigmore on Evidence, vol. 1, § 232; State v. Cunningham, 72 N. C. 469, 474; Guiteau's Case (D. C.) 10 Fed. 161.

or any direct ancestor had been insane, but the defense offered to show insanity in the brother and sister, arising from a cause similar to that which it was alleged induced the destructive act of the defendant, Chief Justice Cooley says:

"If a family of several children should be found, without known cause, to be idiotic, or subject to mental delusions, the inference of hereditary transmission would, in many cases, be entirely conclusive, notwithstanding the inability to point out anything of a similar character in any ancestor. Insanity in a part of the children only would be less conclusive; but the admissibility of the evidence in these cases cannot depend upon its quantity, and it could never be required that it should amount to a [5] Before receiving such evidence as demonstration. In some cases its force must grounds for a presumption of possible insani- be small; in others it will prove hereditary ty, there must be some evidence showing in- taint with great directness. We think evidence sanity in the accused. Laros v. Common- of mental unsoundness on the part of a brother wealth, 84 Pa. 200; People v. Gambacorta, or sister of the person whose competency is in supra; Bradley v. State, 31 Ind. 492; Berry question is admissible, and that the jury should v. Safe Deposit, etc., Co., 96 Md. 45, 65, 53 be allowed to consider it in connection with all Atl. 720; and authorities above enumerated. the other evidence bearing upon that subject." It must also appear that the disease is hereditary, or transmissible, so as to taint the In Walsh v. People, supra, a leading case, family blood. Walsh v. People, supra; | one of the defenses interposed was that the

accused was afflicted with insanity superin- | Y. 355, 48 N. E. 731; State v. Windsor, suduced by epilepsy. An effort was made to pra. But is must still be shown that the disshow that the brother was suffering from the ease was hereditary or transmissible, as insame malady. The trial court ruled that it dicated. was not shown that epilepsy induced, or tended to induce, insanity, or that the disease was transmissible. The court said:

[8] There is not a scintilla of evidence to show the form or symptom of the disease with which the collateral kinsmen suffered.

The accused was afflicted with melancholia. Was it acquired by him under such circumstances that the jury might find it had been transmitted to him by some ancestor, and that the brothers, sister, aunt, and cousins were in turn suffering from an insanity likewise transmissible? Not that they suffered from the same symptom, but a transmissible symptom. The various forms of this disease are so numerous and complex, the subject so difficult, that in due protection of the orderly administration of the criminal law it becomes necessary to insist that, before evidence to establish hereditary taint be introduced, proof should be present that the insanity in the collateral kinsmen was transmissible, and in this case that the insanity of the collaternot nonhereditary, for it is just as probable als was produced from exciting cause, such as grief, terror, disappointed affection, anxie

"The insanity of parents, or relatives, is also admissible upon the issue of insanity. It tends to show an hereditary taint, and supplements evidence of insanity of the accused. When the question as to the conduct of the plaintiff's brother was asked, it had neither been shown that the father was insane, or that the prisoner was afflicted with epilepsy, or other disease. The conduct of the brother, as an isolated independent fact, was wholly immaterial, and the question asked did not necessarily point to evidence of insanity in him. We think the fair construction of the ruling of the court was, that the defense should first show that epilepsy is, or tends to produce, insanity, and that the disease is transmissible, before entering into the general subject of the conduct of the brother." In Re Myer's Will, supra, the court says: "The case is barren of facts which tend to show that the paresis with which the mother and brother of testatrix are said to have been afflicted was acquired by them under circum-ty, great joy, or intense worry, or from some stances that would render it transmissible so as physical cause such as drunkenness, use of to taint the family blood. The medical opium or other narcotics, a blow on the writers differ as to its cause or causes. head, exposure to severe heat or cold, or othWhether the particular form of the disease from er physical causes. As the offer was merely which the testatrix and her family suffered was to show that they were in an insane asylum, of such a transmissible character that she might or were of unsound mind, it was clearly inbe said to have derived it from her ancestors sufficient, and as there are many and varied cannot be determined from the evidence in the forms of insanity, the court, of course, could record. There must be evidence tend- not take judicial notice of a physiological ing to show at least that such diseases are he-fact on which the medical profession is not reditary or transmissible."

*

[6, 7] It is clear that the great weight of authority seems to be that if insanity is shown in the accused, and insanity be shown in collateral kindred of not too remote a degree, and the insanity with which each suffers is transmissible or hereditary, in that it may or will reappear in some form or symptom in a descendant, no matter what symptom it may take in the descendant, such evidence may be introduced without showing insanity in the direct line; i. e., parents or grandparents. This would dispose of the objection by the court below, and it is further emphasized by the fact that the witnesses who testify to insanity in the ancestors, either direct or collateral, should do so from personal knowledge and observation, and not from reputation. Walker v. State, 102 Ind. 502, 1. N. E. 856; People v. Koerner, 154 N.

in unanimous accord. Nor should the evidence have been received, and the commonwealth by cross-examination be required to show nonhereditary cause. As we said in opening, the burden is on the accused to lay his foundation for the admission of such evidence. The benefit (if such there was) of this evidence was not entirely lost, for reference to one of the children being in an asylum was made in the testimony.

The facts show a willful, premeditated murder, the case was submitted by a charge free from substantial complaint, the defendant had the benefit of able counsel, and there is no error of law to disturb the judgment entered by the court below.

The assignments of error are all overruled, the judgment is affirmed, and the record is remitted for the purpose of execution according to law.

Where land is conveyed bounded by an opened street, the grantee takes title to the mid-full the implied covenant, or the easement, in or arising from the conveyance.

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