#### STATE v. OBADIAH CHRISTMAS.

Where heredetary insanity is offered as an excuse for crime, it must appear that the kind of insanity proposed to be proven, as existing in the prisoner, is no temporary malady; but that it. is notorious, and of the same species with which other members of the family have been afflicted.

Where counsel call upon a Judge to give instructions, which the ease requires, and he refuses to do so, it is error.

Indictment for murder, tried before Caldwell, J., at the last Superior Court of Orange.

In making a jury, one was challenged by the State for cause, and being interrogated, answered that he had not formed and expressed the opinion that the prisoner was not guilty; whereupon the solicitor, for the State, requested that he might *472be ordered to stand aside until the panel was perused, stating that he expected to allege further cause. The prisoner insisted that the juror should be tendered to him, but he was ordered by the Court to stand aside. The prisoner’s counsel excepted.

One ground of defense set up by the prisoner was insanity, and for the purpose of showing that it was a malady hereditary, in his family, he offered to prove by a witness, that an uncle and brother were both insane. The State objected, and the evidence was rejected. The prisoner’s counsel excepted.

The mother of the prisoner was introduced to prove insanity, and she testified that three weeks before the homicide, she was sent for by the prisoner’s wife, and went to aid in taking care of him. She said she found him laboring under derangement of mind; that she remained with him for two weeks, and during that time, he often endeavored to throw himself into the fire ; that lie several times tried to strip himself naked ; that he tried to shoot himself; that he would run as though some one was pursuing him, and exclaimed that some one was pursuing him. She stated that he was always weak of mind. She further stated, that while she was there, he occasionally went into the neighborhood and staid all night; that she left him eight days before the homicide, and he then appeared composed, and had been so a day or two. She also testified, that these fits recurred at periods for the last two years, and she did not trust him to manage her business, though he and his family lived on her land, where she worked slaves. A witness testified that her character was good.

Several witnesses were called by the State, who testified that they had known the prisoner for eleven, twelve, and thirteen years; some for a shorter time, and they concurred in the statement, that he was addicted to intoxication, but they all believed him to be of sound mind.

The Court in charging the jury, said, in relation to the mother’s testimony, that when near relations were witnesses, as in the case of a mother deposing for her son, the law regarded such testimony with a jealous eye, and called on jurors to *473weigh it with many grains of allowance. The prisoner’s counsel again excepted. The jury retired and remained out several hours. They came to the Court-room at a late hour of the night, and made known that they could not agree upon a verdict, and asked for further instructions. Thereupon, the Court said to them, that if they differed in their understanding of the law as given them in the charge, the Court would re-charge them; but if they differed about the facts of the case, the Court could not aid them. One of the jurors responded, that their difference was about the question of insanity, and whether or not they should believe the prisoner’s mother; whereupon, the Court repeated the charge above set out on that part of the case, and told the jury, they were to judge of her evidence for themselves.

The prisoner’s counsel then requested the Court to charge the jury, that in passing on the mother’s testimony, they had the right to consider her demeanor on the stand, the consistency of her statements, and the fact that she had proved a good character, and might be believed. The Court then said to the jury, that they were not bound to believe a witness, whose character was proved to be good, or disbelieve- one whose character was assailed, but that they were the constituted judges of how far a witness was to be believed. Defendant again excepted.

To this statement, which is copied almost literally from the record sent to this Court, is appended the followed explanatory note : “ It is perhaps due to the Court to say, that if the charge is not in response to the instructions prayed, it was because the counsel who prayed the instructions, and who spoke in a low tone of voice, was not understood by the Court.

The prisoner was found guilty of murder, and upon judgment being pronounced upon him, appealed.

Attorney General, for the State.

Miller and B. F. Moore, for the defendant.

Pearson, C. J.

No one can read the record in this case without receiving the impression, that the instructions given *474by liis Honor, do not put the prisoner’s case to the jury, in as favorable a light, as through his counsel he requested, and had a right to request, of the Court.

After the jury returned and made known that the case turned upon the degree of credit, to which the testimony of the mother of the prisoner was entitled, his counsel requested the Court to instruct them that in passing on her testimony, they had the right to consider her demeanor-on the stand, the consistency of her statements, and the fact that she had proved a good character. This, to say the least, was not given,— in effect, was refused, and we have the question : a proper instruction is prayed for and refused. There is enor. The personal explanation which his Honor adds at the foot of the record, can have no bearing upon the legal rights of the prisoner.

We deem it unnecessary to notice the other parts of the charge which is excepted to, except to say the exjiression to “ weigh with many grains of allowance,” is a figure of speech, and seems to have been used in the sense of receiving with caution, or as his Honor says with a “jealous eye”; and not in the sense that some abatement or deduction was necessarily to be made.

The statement of the case is made up in a manner so unsatisfactory, that we are unwilling to express an opinion upon the admissibility of proof that an uncle and a brother of the prisoner were insane, which was offered to show an hereditary malady, as a circumstance tending to prove the allegation that the prisoner was himself insane. It is a lamentable fact, admitted by eveiy one, that such maladies are hereditary; and it would seem that proof of the fact, that members of the family, so related as to have the same blood, are, or have been afflicted with a like malady, is admissible as a circumstance, which, aided by other circumstances and proofs, would go to shew the insanity of the prisoner, although, of course, evidence of such hereditary taint in the blood, would only be one link in the chain, and would not per se, establish the fact; but the question, as to the policy or expediency of admitting *475such evidence in legal investigations, presents many and very great difficulties; it is wrong to exclude what may lead to truth, and yet such evidence would, in numberless cases, lead to falsehood, and screen the guilty in defiance of truth. On this account, we find it in some degree, an open question in the legal authorities. Thus far, the way seems to be clear; in order to render it admissible, the species of insanity alleged, and that which is offered to be proved in respect to the members of the family, must be of the same character; and the instances to be proven, must have been notorious, so as to be capable of being established by general reputation, and not left to depend upon particular facts and proof, about which witnesses may differ, and the consequence of which would be to run off into numberless and endless collateral issues; so that in trying the question as to the insanity of one, the supposed insanity of a half dozen would be drawn in.

In this case, the testimony of the prisoner’s mother, in regard to his alleged insanity, is very vague and unsatisfactory, so far as it tends to shew the character and kind of insanity with which she supposed her son to be afflicted. Was it temporary in its nature like mania a potu? or fixed derangement? Bo is the evidence which was offered as to the uncle and brother. Was that notorious, or only supposed to exist by a few ? Was it mania a potu, or of a permanent type; and of the like character, so as to tend to show an hereditary taint? On account of this vagueness, we forbear to express an opinion.

PicR 0URIAH. Judgment reversed. Venire de novo.