I. During the argument of the case to the jury, the judge went into a room adjoining the court room and remained a short time. This fact and the misconduct of one Marshall, the attorney appointed to defend the accused, are made the first grounds of complaint. As we find a new trial must be had upon other grounds, and neither of these matters is likely to again occur, we need give them no further mention.
II. One defense interposed was insanity. The defendant asked the court to instruct the jury, "in substance, that unless they were satisfied beyond a, reasonable doubt that defendant was sane at the time of the commission of the offense, they could not convict. And, in another paragraph asked, the rule was announced that it is not necessary that the insanity of the accused be established by a preponderance of evidence; that such defense is made out, if, upon the
III. Complaint is made of the trial court’s refusal to* give two instructions asked by defendant in relation to the-legal effect of a mental malady operated upon by intoxicating-liquors taken. The jury was fully instructed as to the effect,, in law, of defendant’s insanity, upon his act. The subtle theory of these instructions would have tended to confuse rather than enlighten them. See State v. Donovan, 61 Iowa, 369. Furthermore, we doubt whether the evidence warranted any such instructions.
IV. Defendant asked another instruction to the effect that insanity, once shown-to exist, will be presumed to continue. This is a correct rale of law. 1 Greenleaf Evidence,, section 42; State v. Jones, 64 Iowa, 349-360. The court refused the instructions, and gave no equivalent in its charge.. The state attempts to meet this point by saying that the evidence did not tend to show insanity during childhood. It is true that, in the instruction asked, a physical injury received by defendant in his infancy is recited as- the probable cause of his mental disease; and, if the visible effects of this injury were alone to be considered in reaching a conclusion on this
V. It is urged that the court should have given an instruction that insanity may constitute a partial defense,'even
VI. Defendant asked and was refused, the right to open and close the case to the jury; and of this ruling complaint
VII. We come now to rulings on evidence. A few general remarks will aid in disclosing the points sought to be made by defendant. A non expert witness may give an opinion upon the question of sanity, provided he first discloses the facts upon which such opinion is based. Rogers Expert Testimony, section 61. The opinion thus expressed must be founded alone upon facts given by the witness to the jury: Furlong v. Carraher, 102 Iowa, 358; Parsons v. Parsons, 66 Iowa, 754; Pelamourges v. Clark, 9 Iowa, 1; State v. Pennyman, 68 Iowa, 216; State v. Stickley, 41 Iowa, 232. All of the facts which afford a ground for the opinion must be stated, in order that the weight or value of the conclusion
VIII. Complaint is made that the state was allowed