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- EDWARD D, WORRELL. 149

The opinion of Lord Denman is cited in 1 Archbold’s Crim.
Prac., 12, 10, 11, and is recognized as the law by our Suprema
Court in the case of the State v. Hutting, 21 Mo. Rep. 464.
The question of incapacity to determine between right and
wrong, and to choose between good and evil, is a fact to be
established affirmatively by the defendant, and it must be
80 established as to leave no doubt upon the minds of the
jury; for the mere fact that the defendant might possibly
be insane is no ground for acquittal.

This, gentlemen, is a safe rule, and one which will afford
you much assistanee when you come to deliberate upon your
verdict. Can any man suppose, who has heard the evidence
in this case, that at the time of the commission of the murder
the prisoner had not sufficient mind to distinguish between
right and wreng; did not know that he was violating the law
of God and man; or can any person suppose that he was act-
ing under an influence which he was incapable of resisting?
Does not his whole life, particularly that portion spent in the
army, give such an idea a positive contradiction?

Lieut. Robinson was stationed with defendant at Fort
Leavenworth in 1854, and during that year crossed the plains
with him as far as Fort Union, New Mexico; yet he never
saw anything like elilepsy or unsoundness of mind about
him. He further states that the office of orderly-sergeant is
the most important in the company, its duties being very
arduous, and that no man can fill the place whose mind is in
the slightest degree impaired. Yet the prisoner discharged
the duties well, and was considered the best orderly at the
fort. It is furthermore a regulation in the army to receive
no man who labors under mental or bodily disease. These
are facta worthy of serious consideration. Notwithstanding
he was in the army for a considerable length of time, contin-
ually with arms about him and in daily intercourse with men
armed like himself; yet no instance is given in which he was
seized with this sudden impulse to take the life of his fellow-
man, and is it not remarkable that this impulse should take
possession of him at the particular spot where Gordon waa
Killed; and is it not strange that this impulse should drive

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