had never learned. He must be taken in his own grade of life and intelligence to determine whether in that he has reason, judgment, memory, and consistency of conduct. If compared with other men, those with whom he is compared should be of his own grade, ignorant and uneducated, but yet who have a knowledge of right and wrong, and whose lives and conduct are under the control of conscience and reason, although in a low degree.

From facts in the case. The facts from which the evidence tending to show his insanity is principally derived, are those which relate to his appearance and conduct; to the change in him since his boyhood; to his reading and counting; to his hearing; to the breaking the knife in prison; to his resistance of authority, his punishment and his complaints while there; to his sleeplessness; to his buying the steak; to the family insanity; to his stupidity; to his ignorance and indifference to his fate and the proceedings on this trial; to his habits of silence; to the expression of, and smile on, his countenance; to his want of early education; to his former conviction and imprisonment; to his protestation of innocence; to his claim for pay and its refusal; to the blow which he received with the board; to his conduct after that circumstance; to his persistence in the belief that he should be paid for his time; to the murders because of refusal to pay him; to his larceny of the horses; to his riding into Mrs. Godfrey's yard; to his denial of the larceny to Amos and others; to his denial of the murders; to his being confronted with the dead and with his accusers; to his committal to jail; to his confessions there and the manner of them; to his simplicity; to his memory of events and to his taciturnity of manner and his mode of answering questions. All these have been alleged to bear upon the question of his present insanity. You will consider them, and judge of them as you would of other facts bearing upon the reason of human action. And, gentlemen, you should also inquire whether the prisoner is under a delusion. [The judge here presented them the case of Kleim, tried at the Oyer and Terminer in New York, and explained his case, and submitted to the jury whether the acts of the prisoner were the effect of delusion, or of unsound and erroneous judgment. The judge then continued.] The jury should consider the proof in regard to the prisoner's uniform assertion that his conviction and imprisonment had been wrongful and unjust, because he was innocent of the crime of stealing the horse; his opinion that he ought to be paid for his time in prison; his demand of that pay of Mrs. Godfrey; her refusal of that payment; his application to magistrates for process to compel payment, and their refusal of it; his declaration that the people had taken his time and labor from him; that there was no law for him. Also his preparation of the fatal knife; his conduct on the night of the murder; his concealment of the weapons under the wood; his answer to Doctor Bigelow's question, what he did in the house after hiding his weapons, "nothing, but I stood round there and thought about it. I didn't know what to do, but finally I thought I'd go any how." All these matters are facts relied upon by the counsel acting in behalf of the

prisoner, as tending to prove the prisoner insane. You will consider the testimony on the subject, and give to them the force and importance they deserve.

We now come to the opinions of medical witnesses. The opinions of professional men on a question of this description are competent evidence, and in many cases are entitled to great consideration and respect. This is not peculiar to medical testimony, but is a general rule alike applicable to all cases where the question is one depending on skill and science in any peculiar department. In general it is the opinion of the jury which is to govern, and their opinion is to be formed upon the proof of facts laid before them. But some questions lie beyond the scope of the observation and experience of men in general, but are quite within the observation and experience of those whose peculiar pursuits and profession have brought that class of facts frequently and habitually under their consideration. Upon this ground, gentlemen, the opinions of witnesses who have been conversant with insanity in its various forms, and who have had the care and superintendence of insane persons, are received as competent evidence, even though they have not opportunity to examine the particular patient and observe the symptoms and indications of disease at the time of its supposed existence. It is designed to aid the judgment of the jury in regard to the influence and effect of certain facts which lie out of the observation and experience of persons in general. And such opinions, when they come from men of great experience, and in whose correctness and sobriety of judgment just confidence can be had, are of great weight and deserve the respectful consideration of a jury. But the opinion of a medical man of small experience, or of one who has crude or visionary notions, or who has some favorite theory to support, is entitled to but very little consideration. The value of such testimony will depend mainly upon the experience, fidelity, and impartiality of the witness who gives it.

The opinions of persons not educated to the profession, but who have been so situated as to have given particular attention to this disease, and to patients suffering under it, are also competent evidence, but not to the same extent as those of medical men of the same experience. The evidence derived from all these several sources should be applied to the condition of the prisoner's mind, at the present time, and is received with that view.

A large number of witnesses have been sworn on both sides. Their testimony is voluminous. I cannot believe it necessary to detain you with its reading. Indeed, the day is nearly spent, and the reading of it would carry us into the Sabbath. You will determine this case, not by the number of the witnesses on either side. The amount of their knowledge, their integrity, and every thing that gives weight and value to testimony, should be considered; and if, after carefully weighing the evidence in this light, under the responsibility of your oaths, you arrive at the conclusion that he is insane, you will return such a verdict to the court; if not, then you will find

the prisoner at the bar sane. Take the matter into consideration, and let your verdict be such as God and your consciences shall approve. Be just and fear not.

To this charge the counsel for the prisoner excepted.

The Judge concluded his charge at fifty-five minutes past eleven o'clock P. M. Two constables were sworn to keep them, &c., when his Honor remarked to them that in case they should agree upon a verdict, the court would convene on the next day to receive it.

On Sunday, the fifth day of July, 1846, the court again convened between the hours of eight and nine A. M. The jurors then came into court attended by the said constables, and were inquired of by the clerk whether they had agreed, to which they replied "we have not."

His Honor, the circuit judge, then inquired what the difficulty was among them; whether it was a disagreement as to the evidence, or any thing the court could remove by further advice.

One of the jurors, in reply, stated that it was not a disagreement as to the evidence; that they stood eleven against one in opinion.

MR. DAVIS, one of the jurors, remarked that he was the one dissenting." He did not believe the prisoner was a responsible agent; that although he was proved to have memory and knowledge of events, he had not been proved to have made an induction of reason. He, therefore, could not agree to a verdict of "sanity."

His Honor then remarked to the jury that in his desire to compress his charge on the night before, he had omitted one suggestion upon a point mentioned in his charge, but from the lateness of the hour he had forgotten to speak of it as he had intended. It was the evidence of his guilt as laid in the indictment. The prisoner is not on trial before you on that charge, yet the evidence was deemed proper for the purpose of comparing the knowledge of the prisoner with the knowledge of other persons of the same facts; and if his knowledge of many of these facts corresponds with others known to be sane, then the jury were to say whether the prisoner did not disclose a state of mind sound and sane as to those matters. And so of other events and transactions of his life. If he shows a knowledge and memory coinciding with the knowledge and memory of others known to be sane, the jury are to say whether that is, or is not, evidence of sanity. Insanity is unsoundness of mind; a change of character from soundness to unsoundness. It is alleged that the prisoner has dementia. Instances of this condition of the mind are doubtless familiar to some of you, in cases of extreme old age, where the mind and memory have decayed and lost their power. If the prisoner have that form of insanity, when did it occur, and when did the change take place? The main question for the jury to decide is whether the prisoner knows RIGHT FROM WRONG. If he does, then he is to be considered SANE. I do not believe that there is evidence of delusion, as there is proof that it is common for convicts to claim pay for being confined.

One of the jurors here observed, "such is the opinion of the jury."

He further said it was important that the jury should agree upon a verdict, and it was the duty of the court to keep them together until they agreed. Your verdict is for the information of the court, and hence, the court may confer with you with more freedom than in a case where your verdict would be final as to the guilt or innocence of the accused. The sheriff will provide you with refreshments, which, with a walk in the fresh air after your night's confinement, the court hope will enable you to deliberate further, with a desire to arrive at unanimity.

These remarks were excepted to by the counsel for the prisoner. The judges then retired from the court house until eight o'clock, P. M., of the same day. On taking their seats at that hour, the jurors were called and interrogated by the clerk as to whether they had agreed upon a verdict, when the foreman delivered to the court a verdict in writing, as follows:

"WE FIND THE PRISONER SUFFICIENTLY SANE IN MIND AND MEMORY TO DISTINGUISH BETWEEN RIGHT AND WRONG."

His Honor directed the jury to render their verdict orally, whereupon the foreman declared the same verdict orally to the court, and being polled, each answered that it was his verdict.

The prisoner's counsel, who had just arrived, then requested the court to reject that verdict, and to instruct the jury to find a verdict upon the issue raised by the plea of insanity, i. e., whether the prisoner is "sane or insane." The court refused, and counsel excepted.

His Honor, the circuit judge, directed the clerk to enter the verdict as rendered, saying that it was equivalent to a verdict of sanity, under the rule laid down in his charge.

Excepted to, and court adjourned to nine o'clock the next morning.

TRAVERSE OF THE INDICTMENT.

THE ARRAIGNMENT AND PLEA.

On the morning of the sixth day of July, 1846, LUMan Sherwood, Esq., district attorney, moved the court that the prisoner be brought in and arraigned upon the indictment for the murder of John G. Van Nest.

MR. SEWARD felt obliged to oppose the motion. A plea of present insanity had been interposed in behalf of the prisoner, upon which an issue had been joined. Until that issue shall have been disposed of, or a verdict of sanity found, he denied either the propriety or the right of the court to require the prisoner to plead.

MR. VAN BUREN replied, that although the jury had not found a verdict of sanity, in form, they had in effect, and the court had so decided.

His Honor, the circuit judge, observed that the court would not hear an argument of that question. It was for the court alone to say whether they were satisfied that the prisoner was sane. The verdict, although not precisely a verdict of sanity in form, was that in substance, and the same had satisfied the court that the prisoner should be tried.

Decision excepted to.

The motion of the district attorney was granted, and the prisoner was brought by the sheriff to the bar.

After reading the indictment, the District Attorney, in a very loud tone of voice, asked the prisoner if he demanded a trial upon the same, to which the prisoner answered "No."

The prisoner was asked if he had counsel, to which he replied "I don't know."

The prisoner was then asked if he was able to employ counsel, to which he answered "No."

His Honor, the circuit judge, then directed the clerk to enter for the prisoner a plea of "NOT GUILTY."

MOTION TO POSTPONE THE TRIAL.

MR. SEWARD moved the court that the trial of the prisoner be put over the term, and in support of his motion read the following affidavit: CAYUGA OYER AND TERMINER: William Freeman, ads. the People. Cayuga County, ss: William H. Seward, of Auburn, in the county