Where was she when you saw her Wednes day morning? A. She was getting breakfast in the kitchen. Q. In the kitchen in the house where they lived in Marion county? A. Yes, sir. Q. What time in the morning was it? A. Between six and seven o'clock, I should think. Q. Did you eat breakfast at that place that morning? A. Yes, sir. Q. State whether or not Mrs. O'Neil was at breakfast. A. No, sir, she was not. Q. Who was at breakfast that morning? A. Myself, Will Hendricks, and Mr. [Hugh] O'Neil, and old Mr. O'Neil. Q. That is the father of the defendant? A. I suppose so. Q. Anybody else? A. Some of his children. I do not remember whether they were all there or not. Q. Do you know where Mrs. O'Neil was during that breakfast hour? A. I think she was in the dining room. Q. What makes you think so? A. I saw her go in just when we came in to breakfast. Q. That is, as you came in to breakfast, you saw her go into the dining room? A. Yes, sir. Q. Now, did you notice the defendant, Mr. O'Neil, eat during the breakfast hour, during the time you ate breakfast there? A. He ate his breakfast. Q. Did you see him eat his breakfast? A. I saw him there eating a little. Q. Do you know how much he ate? A. No. Q. But you saw him eating? A. Yes, sir. Q. How long did you eat breakfast? A. Fifteen or twenty minutes. Q. Where did you go to after breakfast? A. I went to the barn. Q. How long after that did you return to the house? A. About 12 o'clock. Q. Did you see Mrs. O'Neil at that time? A. No, sir. Q. Where did you get your dinner that day,Wednesday? A. At Mrs. O'Neil's house. Q. What did you do after dinner? A. I shucked corn. Q. How soon did you leave the house after dinner? A. I should judge between one and two o'clock. Q. State whether or not you saw the defendant, Hugh O'Neil, at that dinner hour. A. No, sir; I didn't. Q. When did you next return to the house? A. About 7 or 8 o'clock,-about 7, I suppose. Q. That same evening? A. Yes, sir. Q. I want to ask you who got dinner that day,Wednesday? A. I think Hendricks did; I am not certain. Q. Who seemed to be getting dinner when you was there? A. Bill Hendricks was working around the table. Q. What time did you eat supper that evening,-Wednesday night? A. About 8 or 9 o'clock. Q. Who got supper for you? A. I did myself. Q. Who was there at that time? A. Me and Mr. O'Neil's father and the children. Q. Where was Mr. Hendricks? A. He was in town. Q. Where was Mr. O'Neil? A. I don't know. He was in the house, I suppose. Q. Did you see him that evening? A. Yes, sir; I saw him after supper. Q. How long after supper? A. I should judge about half an hour. Q. Where did you see him? A. He came out into the kitchen. Q. What, if anything, did he do? A. He asked if the boy had got back from town yet. Q. Well, did you see him any more that night?

A. Yes, sir. Q. What time? A. I do not remember; about 10 o'clock. Q. About 10 o'clock? A. Yes, sir. Q. What transpired at that time,-10 o'clock? A. He came out, and saw that the boy had got back from town, and the boy gave him the whisky he sent for. Q. The boy gave him the whisky that he sent for? A. Yes, sir. Q. Did the boy bring out anything else? A. Brought out some bread. Q. What did Mr. O'Neil say or do at that time? A. He asked what the whisky come at. Q. What response did the boy make? A. He said, 'It cost a dollar.' Q. What did Mr. O'Neil say? A. He said, 'It comes pretty high.' Q. Did you see him again that evening? A. Yes, sir. Q. What time? A. I do not know exactly what time it was,-after we went up to the bedroom. Q. Where was it you saw him, and what was he doing? A. He came into the room afterwards. Q. What time did you say that was when he came into the bedroom? A. I do not know. I think it was pretty near 10 or 11 o'clock. Q. What did you see Mr. O'Neil doing at that time? A. I didn't see him doing anything. Q. That was Wednesday night? A. Yes, sir. Q. Where was it you saw him? A. He came into our room after we went into the room. Q. Came into the bedroom after you had gone into the bedroom? A. Yes, sir. Q. What, if anything, did he say? A. Asked how our bed was. Q. What did you say to him? A. Told him it was all right. Q. What further did he say? A. He said we would have to get along with it, for mamma was terribly sick. Q. He said you would have to get along with it, because mamma was terribly sick? Do you know who he meant by 'mamma? A. I suppose he meant his wife. Q. He generally called her 'mamma?' A. He generally called her 'mamma;' yes, sir. Q. Now, that was Wednesday night, between 10 and 11 o'clock? A. Yes, sir. Q. Who awakened you the next morning? A. Hugh O'Neil did. He generally got up first in the morning. Q. That would be Thursday morning? A. Yes, sir. Q. Who, if anybody, came to your room and awakened you? A. Mr. O'Neil. Q. How soon after that did you see him? A. When I got down stairs. Q. How long was that after you got up? A. Right away after I got up. Q. What, if anything, was he doing at that time? A. I do not know. He was in the kitchen when I came down stairs. Q. Did he say anything to you? A. Yes, sir. Q. What did he say? A. Told me to hitch up a horse; he wanted to go to town for the doctor. Q. Was that all he said to you at that time? A. Well, he said for me to get breakfast for the children. Q. Told you to get breakfast for the children? A. Yes, sir. Q. Did he say anything else? A. Yes, sir. Q. What was it? A. He told me that he would be back in about an hour and a half. Q. What did you then do? A. Got breakfast for the children. Q. Well, you spoke about him asking you to hitch up a horse? A. Yes,

sir. Q. Did you do that before or after breakfast? A. Before breakfast. Q. Where did you tie the horse? A. At the gate, south of the house. I suppose it is the south of the house. Q. To the gate? A. Yes, sir. Q. How far was that gate from the house? A. I should judge about 20 feet. Q. Now, you say that after you hitched the horse up and tied it there, you went in and got breakfast? A. Yes, sir. Q. Did you have any more conversation with Mr. O'Neil there at that time than you have related? A. I believe not. Q. Did you hear him say anything to anybody else? A. Yes, sir. Q. What did you hear him say? A. He told the little girl not to go into the room where her mamma was or he would whip her. Q. Told the little girl not to go into the room where her mamma was? A. Yes, sir; that she was terrible sick. Q. What did he do after saying that to this little girl? A. He went into the dining room, and shut the door. Q. When did you next see him? A. Next time I saw him was in Florence. Q. How soon after that did you see him in Florence,-after he was arrested? A. Yes, sir."

After Hendricks, Farrel, and the father of Hugh O'Neil found the dead body of Mrs. O'Neil on the sofa or settee in the parlor they did not disturb it, but sent for Dr. O. B. Whittecar, the coroner. He testified, among other things, as follows: "Question. Where do you live? Answer. At Peabody. Q. What, if any, official position did you hold last November? A. I was coroner of Marion county. Q. On or about the 20th of November last, where were you? A. I was in Peabody. Q. Where did you go? A. I was called to Florence by telegram. Q. From Florence, where did you go? A. I went to what was said to be the residence of Hugh O'Neil. Q. Did you go into the house? A. I did. Q. Upon your going into the house, what did you discover? A. I discovered the body of a woman upon the sofa or tete-a-tete in the room in the house. Q. Describe to the jury, as near as you can, doctor, the position in which you found that body. A. The body was lying upon its back, rigid in death,-markedly so; laying, as I said, on this short sofa or tete-a-tete. The body was covered with a comfort, entirely up. The woman had her shoes off, dressed in ordinary clothing, and very much disarranged. Q. Have you a judgment as to whether that body was placed on that lounge before or after death? A. I have. Q. What is your judgment? A. I think it was placed there after death. Q. Did you make any examination of the premises? A. I did. Q. State what you found, if anything. A. Generally speaking, the house was in a very much disordered condition. Clothing, bedding, and household utensils scattered promiscuously all over the house. On what I supposed at that time to be the east side of the house, but which I now think is the north side, because the house does not stand

square with the compass, there was a blood stain on the outside on the foundation stone. Q. There were marks in the dust and dirt on the side of the house. Whereabouts in relation to the blood spot? A. Immediately over it. Q. Go on, and describe the size of the blood spot, where it was in relation to the ground, and in relation to these prints that you saw on the side of the house. A. The blood stain on the foundation stone was immediately below the marks on the side of the house. The size of that blood stain, if I remember correctly, was about three inches long by an inch to an inch and a quarter wide. It was of a dark color, apparently made from venous blood. Q. What, if anything, else did you discover there on the front porch leading up to this room? A. I made no discovery. The discovery was pointed out to me as made by others. Q. What was that? A. Members of my jury pointed out to me hair resembling in color the hair on the head of the deceased lady. This hair was found in the splinters of one of the steps leading up to the porch, in the ends of the boards of the porch, and was pointed out to me. Q. Did you make a comparison between the hair that you found there at that time and the hair in the head of the deceased? A. I did. Q. State what, if any, similarity there was. A. They were identical in color, length, and general appearance. Q. Do you know the condition of the hair of the deceased at the time you was there in November last? A. I know, as I saw it. Q. What was that condition? A. The hair was very much disarranged and tangled and full of dirt and straw, several pieces of straw and other grass around there, several pieces of weeds, cinders, coal cinders, and one or two sandburrs were in the hair."

After O'Neil left his home on Thursday morning, November 19th, he went to Florence, boarded the train, and was arrested at Cottonwood Falls on Friday, the 20th. From this and other testimony in the record, the claim that evidence of the intoxication of the deceased would have supported the theory of her suicide is not tenable. Evidence of suicide was wholly wanting. Counsel for defendant seem to admit this, for in their brief they say, speaking of the defendant's inherited appetite for intoxicating liquors, that the failure of the court to instruct as requested upon this matter "vitally affected the defendant, because it was virtually the only plea he had. It was practically the only shelter, poor as it was, that he had from the cutting blizzard force of the evidence." Of course, in some cases, the intoxication of the deceased would be very important, and it would be fatal error to reject such evidence. In this case the limit fixed by the court in the introduction of such evidence was not prejudicial.

It is further contended that the court committed error in not permitting defendant's counsel in their argument to read to the jury

from law books and newspapers upon the question of insanity and flight. This court has already held that scientific books "cannot be admitted to prove the declarations or opinions which they contain." State v. Baldwin, 36 Kan. 1, 12 Pac. Rep. 318. Wharton says that "in an argument to a court such works may, at the discretion of the court, be read, not as establishing facts, (unless such books are regarded as matters of notoriety, as are ordinary dictionaries,) but as exhibiting distinct processes of reasoning, which the court, from its own knowledge as thus refreshed, is able to pursue. But, if read to establish facts, capable of proof by witnesses, such books cannot be received. Medical works, consequently, are Inadmissible for the purpose of proving the facts they contain." Crim. Ev. § 538. In Legg v. Drake, 1 Ohio St. 287, it is said: "It is not to be denied but that a pertinent quotation or extract from a work on science or art, as well as from a classical, historical, or other publication, may, by way of argument or illustration, be not only admissible (in argument,) but sometimes highly proper; and it would seem to make no difference whether it was repeated by counsel from recollection or read from a book. It would be an abuse of this privilege, however, to make it the pretense of getting improper matter before the jury as evidence in the cause." A part of the excerpts attempted to be read conflicted with certain instructions of the court. The court, therefore, under all the circumstances, committed no error in refusing to permit the law books and newspapers to be read to the jury. The counsel for the defendant, however, in their arguments, repeated from recollection very much of the language contained in the rejected law books and newspapers, and the only complaint really is that they were not permitted to impress the jury more forcibly with the authorities from which they quoted.

The more serious questions discussed in the briefs and in the oral argument concern the instructions about drunkenness and insanity. Evidence was offered upon the part of the defendant showing that he had inherited an appetite for intoxicating liquors; that he indulged that appetite during life; and that the habit for drink had grown upon him so that he had the reputation of being an habitual drunkard. It is further insisted the evidence tended to prove that at the time of the death of the deceased the defendant was insane from alcoholism. The following instruction was requested on the part of the defendant, and refused by the court: "If you believe there is a disease called dipsomania, being an inordinate, uncontrollable appetite for intoxicating drink, and if you further believe from the evidence that the defendant by long-continued and excessive indulgence in alcoholic liquors brought upon himself such disease, and that the same had so impaired his mental faculties and his

power over his will as to render him subject to furious and uncontrollable impulses to assault and slay his wife, but he did not at the time understand the nature and consequence of such act, and that it was wrong, he is not guilty of any of the offenses charged or included in the information." The court, however, instructed the jury, among other things, as follows: "Voluntary intoxication is no defense to murder in the first degree unless such intoxication should be so extreme as to rob the mind of the power of premeditation and deliberation. Hence, in this case, if you find that the defendant committed the act of killing as charged in the information, and that at the time he did so he was in a state of intoxication caused by his voluntary action, he is guilty of murder in the first degree, unless you further find that such intoxication was so extreme as to prevent his mind from the exercise of deliberation or premeditation; in which latter case he would be guilty of murder in the second degree, or manslaughter in some of the degrees as you are herein instructed." "I instruct you that if you believe from the evidence beyond a reasonable doubt that the defendant did the killing of Mary O'Neil, as charged in the information, but at the time he was so drunk as to be incapable of entertaining deliberation and premeditation, also was incapable of entertaining the elements of purpose and malice, and that the defendant had no previous knowledge that when intoxicated that he was liable to commit acts of violence upon his wife or others as a consequence of such drinking, you cannot find the defendant guilty of murder in either of the first or second degrees." "I instruct you that, where a person is shown to have been in the habit of becoming intoxicated, and it is further shown that when intoxicated he is apt to commit acts of violence upon his fellows, and endanger their lives or safety, and such person is shown to have knowledge of such fact, and, having such knowledge, voluntarily becomes intoxicated, then, and in such a case, such person would be as fully and entirely responsible for acts of a criminal nature committed by him while in such state of intoxication as though the act had been committed by him while not intoxicated. Hence, if you believe that the defendant in this case was in the habit of becoming intoxicated, and that while in such state of intoxication, and by reason thereof, was apt to and did assault and beat Mary O'Neil, his wife, in a manner dangerous to her life and safety; and if you further find that the defendant knew that he was apt to assault and beat his wife while so intoxicated, but, notwithstanding such knowledge, voluntarily became intoxicated, and, while so intoxicated, assaulted his wife, and killed her as charged the information, -then I instruct you that the defendant is guilty in the same degree as he would be had he committed the act while not intoxicated."

This court has already declared, in accordance with the views adopted generally by other courts, "that if a man kills another while in a fit of voluntary intoxication, it is murder, and he must suffer the penalty." State v. Yarborough, 39 Kan. 581, 18 Pac. Rep. 474; Lawson, Insan. Def. Crime, 532-695, and

cases cited. Of course, drunkenness may be considered, as the instructions declare in this case, in determining whether there was that deliberation, premeditation, and intent to kill necessary to constitute the offense charged. Cline v. State, 43 Ohio St. 334, 1 N. E. Rep. 22. Bishop, in his work on Criminal Law, which is quoted approvingly in the brief for the defendant, says: "When a man voluntarily becomes drunk there is the wrongful intent; and if, while too far gone to have any further intent, he does a wrongful act, the intent to drink coalesces with the act done while drunk, and for this combination of act and intent he is liable criminally. It is, therefore, a legal doctrine, applicable in ordinary cases, that voluntary intoxication furnishes no excuse for crime committed under its influence. It is so even when the intoxication is so extreme as to make the person unconscious of what he is doing, or to create a temporary insanity." Section 400, (volume 1, 7th Ed.,) p. 258. In section 406 he says: "Again, the law holds men responsible for the immediate consequences of their acts, but not ordinarily for those more remote. If, therefore, one drinks so deeply, or is so affected by the liquor, that for the occasion he is oblivious or insane, he is still punishable for what of evil he does under the influence of the voluntary drunkenness. But, if the habit of drinking has created a fixed frenzy or insanity, whether permanent or intermittent,-as, for instance, delirum tremens, it is the same as if produced by any other cause excusing the act; for whenever a man loses his understanding, as a settled condition, he is entitled to legal protection, equally whether the loss is occasioned by his own misconduct or by the dispensation of Providence." Id. If drunkenness produces insanity through delirium tremens or mania a potu, or other disease, and a defendant at the time of the homicide has no sufficient capacity or reason to enable him to determine between right and wrong as to the particular act he was doing, or has no power to know that the act was wrong and criminal, he would not be responsible. O'Grady v. State, (Neb.) 54 N. W. Rep. 556. In cases of delirium tremens or mania a potu, the insanity excuses the act, the frenzy being, not the immediate effect of indulgence in strong drink, but a remote consequence superinduced by antecedent drunkenness. State v. Nixon, 32 Kan. 205, 4 Pac. Rep. 159; State v. Mowry, 37 Kan. 369, 15 Pac. Rep. 282; also the various decisions cited in Lawson, Insan. Def. Crime, pp. 532-680; O'Grady v. State, supra; Cline v. State, supra.

But it is argued, on account of the instructions given and refused, that the jury were misled in not being permitted to excuse the defendant if alcoholism or other disease had created insanity. We think other instructions of the court sufficiently covered all forms of insanity, because in such instructions the jury were informed that, "when insanity is set up as a defense to crime committed, the rule that the jury must ever keep before their eyes and minds in determining the responsibility of defendant is this: 'Was the accused, at the time of doing the act complained of, conscious of the nature of his act, or did he know that it was wrong to do it?' * * Testimony has been introduced

in this case covering several years of the defendant's life prior to the commission of the acts alleged against him. The object was to show the defendant's conduct and habits of life. This is all proper testimony, and you should consider it for what you may think it is worth as bearing upon the question of the defendant's sanity or insanity at the time he committed the act charged against him. If you find that he did commit such an act, remembering that it is the condition of the defendant's mind at the time he committed the fatal assault upon which you are to judge him, and that all or any of this testimony is only competent as it may throw light upon his actual condition at the time of his commission of the act charged against him.

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*If you believe that the defendant was laboring under such a defective 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 that what he was doing was wrong, then the law does not hold him responsible for his acts. When habitual unsoundness of mind is once shown to exist either wholly or partially, it is presumed to continue to exist until the presumption is rebutted by the state. * * When a person at the time of the alleged crime has sufficient mental capacity to understand the nature and quality of the particular act or acts constituting the crime, and the mental capacity to know whether they are right or wrong, he is responsible, if he commits such act or acts, whatever may be his capacity in other particulars; but if he does not possess this de-. gree of capacity, then he is not so responsible. In other words, if he has mental capacity sufficient to distinguish between right and wrong with respect to the particular act or acts constituting the alleged crime, he should be held responsible for the commission of such act or acts, although he might be insane or imbecile with respect to other matters. Now, there are many sorts of Liseases of the mind that are commented upon and discussed by physicians and psychologists in these days, and that are presented in court for the consideration of a jury, and upon which the jury is asked to find that the mind of the accused was, at the time in question,

so overthrown as to make him wholly irresponsible, and therefore that he should be acquitted for his otherwise unlawful acts. Now, however varied these diseases may be, I say to you they all come under the great head or generic head of insanity, and in the main test is the rule I have just given you; all else is argument or minor rule under this head, and which must revolve itself back to it." Therefore, in accordance with the prior decisions of this court, the jury were properly instructed upon the evidence concerning the defendant's insanity, whether caused from alcoholism, through delirium tremens, or mania a potu, or from any other disease.

This court has gone further than some other courts in holding "that the defendant on a plea of insanity is not required to establish his insanity by a preponderance of the evidence, but, if, upon the whole of the evidence introduced upon the trial, together with all the legal presumptions applicable to the case, under the evidence there is a reasonable doubt whether he is sane or insane, he must be acquitted. To doubt his insanity is to doubt his guilt, and to doubt his guilt (if the doubt be a reasonable one) is to acquit. The doubt of guilt cannot be of less degree than the doubt of sanity; and, if the doubt of sanity be a reasonable doubt, the doubt of guilt must also and nessarily be a reasonable doubt." State v. Crawford, 11 Kan. 32. The rule laid down by this court concerning the responsibility of a "person who, at the time of the commission of the alleged crime, has sufficient mental capacity to understand the nature and quality of the particular act or acts constituting the crime, and the mental capacity to know whether they are right or wrong," is forcibly challenged by the counsel for the defendant. The theory of irresponsibility from an irresistible or uncontrollable impulse is ably presented. The following authorities are cited against the law declared in the former decisions of this court: State v. Pike, 49 N. H. 399; Parsons v. State, 81 Ala. 577, 2 South. Rep. 854. We have also been referred to a lengthy article "on the legal aspect of insanity," published in 1 N. W. Law Rev. 1, which states, among other things, that "it would be difficult to crowd into the same compass more erroneous ideas than are found in the charge of the court in the Guiteau Case, 10 Fed. Rep. 161." We have examined these authorities, and also read many similar articles in the magazines upon legal or forensic medicine, which support, and even go further than, the views expressed in the Law Review. Some of the articles in the medicolegal journals assert that all crime results from heredity, and therefore that all persons committing alleged offenses should be considered irresponsible, and be subjected to treatment for disease only; not for crime. The decisions cited above are sporadic cases, and against the overpowering weight of authority. Lawson, Insan. Def. Crime, 200-324.

Mr. Justice Valentine, in State v. Nixon, 32 Kan. 205, 4 Pac. Rep. 159, expressed himself as follows: "It is possible that an insane, uncontrollable impulse is sometimes sufficient to destroy criminal responsibility, but this is probably so only where it destroys the power of the accused to comprehend rationally the nature, character, and consequences of the particular act or acts charged against him, and not where the accused still has the power of knowing the character of the particular act or acts, and that they are wrong. Indeed, it would seem dangerous to society to say that a man who knows what is right and wrong may nevertheless, for any reason, do what he knows to be wrong without any legal responsibility therefor. The law will hardly recognize the theGry that any uncontrollable impulse may so take possession of a man's faculties and powers as to compel him to do what he knows to be wrong, and a crime, and thereby relieve him from all criminal responsibility. Whenever a man understands the nature and character of an act and knows that it is wrong, it would seem that he ought to be held legally responsible for the commission of it, if in fact he does commit it. But upon this question of insane, uncontrollable imFulse, we do not wish to express any very definite opinions, as we do not think the question is presented to us in this case." In State v. Mowry, 37 Kan. 369, 15 Pac. Rep. 282, this court adopted the views thus expressed upon uncontrollable impulse. See State v. Miller, (Mo. Sup. 1892,) 20 S. W. Rep. 243, where the defendant was charged with rape, and claimed he was irresponsible for the crime because committed under uncontrollable impulse. 27 Amer. Law Rev. pp. 299, 300. We are not willing to change the ruling of this court in favor of irresponsibility on account of uncontrollable impulse where the perpetrator is fully conscious that the act he is doing is wrong and criminal. If the law as declared by this court does not offer sufficient safeguards and protection for "that most unfortunate class, who cannot speak for themselves," an act of the legislature may establish a different rule. Until the legislature interferes, we prefer to follow the great weight of authority upon this matter. We are not inclined to adopt the theories of psychological enthusiasts to overthrow the long-established criminal practice in this class of cases, which is based on human experience from earliest times. The legislature might, however, very appropriately pass an act permitting the state or the accused to have the question of insanity tried before the main trial upon the information or indictment. In such a case a jury of physicians might be required to be summoned to determine the sanity or insanity. At present the question of insanity in a criminal case, where it is claimed that the accused was insane at the time of the commission of the alleged offense, is tried along