WALKER, J., concurring. The defendant, a white man, and two negroes were found by the officers at a copper still actively engaged in the manufacture of whiskey. They had two barrels of beer, some jugs, a bushel of meal in a bag, and two empty barrels. One of the negroes, Percy Mitchell, on being examined for the State, testified that he, Harry Alston, and the defendant Journegan were at the still at the time the officers came up. They ran before the officers reached them, but Percy Mitchell was caught while running off by Mr. Fuller, one of the officers, and he was permitted to testify that he told Fuller who were present at the still, and to state that the defendant Journegan and Harry Alston were the men. The defendant excepted, but it is settled by this Court that a witness can corroborate himself by testifying that he had made the same statement to other parties. S. v. Maultsby,130 N.C. 664.
The defendant relies, however, upon exceptions to the refusal of the court to permit answer to the following questions by one Thompson, witness for the defendant: "In your opinion, do you think that he (Journegan) has sense enough to operate a blockade still?" and, also, "Do you think, on 12 December, 1922, Journegan had sufficient mental capacity to operate a still, and to know it was wrong to run it?" The answers to these questions were excluded, and it does not appear what they would have been. The real inquiry is not his capacity to run a blockade still, but did he aid in doing so, and did he know it was wrong.
While an ordinary witness, who has peculiar opportunities to observe, may express an opinion upon the sanity or insanity of a person charged with a crime, or in other cases where such sanity or insanity is an issue, yet this expression of opinion goes only so far as to permit the witness to testify that in his opinion the defendant was (702) insane or sane, but not whether he was guilty of this particular offense because of lack of mental capacity. *Page 738
Whether or not Journegan had sense enough to operate a blockade still was not for the witness to determine. The evidence is that Journegan, a white man, was in fact operating the still and supervising two negroes who were aiding him.
In S. v. Haywood, 61 N.C. 376, Pearson, C. J., approved the following introduction by the judge as to the test of insanity in criminal cases: "If the prisoner at the time he committed the homicide was in a state to comprehend his relations to other persons, the nature of the act in its criminal character; or, in other words, if he was conscious of doing wrong at the time he committed the homicide, he is responsible. But if, on the contrary, the prisoner was under the visitation of God and could not distinguish between good and evil, and did not know what he did, he is not guilty of any offense against the law; for guilt arises from the mind and wicked will." This definition has always been sustained and followed in this State. In that case, Chief Justice Pearson said: "We fully approve of the charge of his Honor upon the subject of insanity: It is clear, concise, and accurate; and as it is difficult to convey to the minds of juries an exact legal idea of the subject, we feel at liberty to call the attention of the other judges to this charge." This case has been repeatedly cited with approval since.
The judge charged the jury: "Now as to the plea of insanity. I have instructed you, and repeat my instructions, that there is no burden upon the State. It is presumed that all persons are sane, and he who pleads insanity must prove it to the satisfaction of the jury. You will remember the evidence of the defendant, the burden being upon him, and give it such weight as you may find it is entitled to, and the other witnesses such credibility as you may find them entitled to receive."
The judge further charged the jury: "The first thing to which you will address yourself will be the question of the sanity of the defendant at bar, and you will remember the law which I have given you, and if you find at the time that the alleged act was committed, if you find beyond a reasonable doubt that he committed either of the acts charged in the bill, he was conscious of doing a wrong, then he would be guilty, but if he was under a visitation of God, and could not distinguish between good and evil, and did not know what he did, he would not be guilty." To this charge there was no exception.
It would lead to strange results if the precedent were set in this case that a witness could testify whether in his opinion a man who committed forgery had "sufficient mental capacity to do this and understand that it was wrong"; or whether a man guilty of homicide by (703) the use of a deadly weapon had "mental capacity to use a deadly weapon, and to know it was wrong to kill." Larceny is defined to be the felonious taking and carrying away of the goods of *Page 739 another with the intent to appropriate them to one's own use. On this charge it would be competent to prove these facts, and in defense the defendant could show that he did not know right from wrong, and therefore could not have the intent. But it would be without precedent to ask if a defendant had mental capacity to commit larceny.
Such a course of examination is without precedent, and if competent in this case where the man was found in actual perpetration of the crime and supervising the work, such inquiries would be without restriction and instances may be readily imagined which would lead to very curious results.
The defendant himself was put upon the stand and his examination shows no lack of mental capacity. He testified that he only dropped in accidentally and had nothing to do with operating the still. The testimony of his two associates, the colored men, being to the contrary, the jury did not believe him. There was ample testimony upon the question as to his mental capacity. The testimony was that he was 43 years of age, owned a large house and a farm of 34 acres, and rented out his lands. He had no guardian and collected his own rents. There was direct evidence from numerous witnesses that his mental condition was fairly good, and that in the opinion of witnesses he knew right from wrong. W. W. Green, one of the witnesses for the defendant, testified: "I consider him far removed from an imbecile. I believe if any one told him he would be punished for doing a thing he would know that, but I do not think he has any conscientious scruples, only from being caught." This description would probably apply to many men guilty of crime.
E. M. Newman testified that he "had been living within a half mile of the defendant for 22 years. His mental condition was fairly good. In my judgment he has mental capacity to know right from wrong. As to his general character and reputation, he is just an ordinary character, nothing so extra bad and nothing so good. Some good and some bad." There were several other witnesses for the State who testified to the same purport.
Both the negroes testified that the defendant was there when they were caught, and had lighted the fire under the copper still and pushed the fire up when the still was boiling, and he knew enough about right and wrong to run when the officers came. Whether these facts made him guilty was a matter for the jury, and did not rest in the suppressed opinion of the witness whatever it might have been, whether he "had sense enough to run a blockade still."
What is the art and mystery of "running a blockade still," and what is the standard of efficiency which is necessary to (704) make the operator liable? There is no institution, so far as we *Page 740 know, that issues a certificate that the holder is "capable of running a blockade still." Does it mean that the defendant must have capacity to run a blockade still successfully and profitably, and without being caught — and that if he fails in the latter respect he is not guilty? "If so, leg-ality is an essential element of such capacity." The defendant did his best. He outran the officers.
The question was properly ruled out, for it was not necessary to show that the defendant had "capacity to run a still," but did he aid in doing this illegal act.
For ages the test has been in trials for all crimes. Did the defendant do, or take part in doing, the illegal act and have the mental capacity to know he was doing wrong? Both these questions were fully and correctly presented in this case both on the evidence and in the charge, and the jury found against the defendant.
Before a witness can testify as to general character or the mental capacity of another, he must qualify himself as to his means of observation. Even then he can testify only as to general character or mental capacity.
There is no precedent in the books to ask as to the mental capacity to commit any particular crime. Why should it be created as to "illicit distilling of spirituous liquor," especially when the witness does not testify of his own knowledge of the subject, or his observation of the defendant in exercising that particular art or committing that particular crime?
No appeal presents the question of the liability of the two negroes, but the defendant, a white man, a landowner, renting out land and collecting his rents, without a guardian, seeks to evade liability for taking part in the event by asking witnesses whether the defendant had "mental capacity to run a blockade still" — which might exculpate most, if not all, men who are caught at it.
Whether the defendant committed the act charged, and whether he knew right from wrong as defined by the court, was duly submitted on the evidence and in the charge, and found by the jury adversely to the defendant; but there is no precedent as to what is necessary to constitute "mental capacity to run a still." Does it include knowledge of the method needed to elude the officers, to make a good article, to be wary in selling it, fleetness in getting away when the officers pounce upon him, and possibly other qualifications? There being no precedents as to this, it ought not to be charged as error to the judge that he excluded such question and submitted only inquiry according to the settled from (705) as to the acts constituting the crime and sufficiency of knowledge in the defendant to know that he was doing wrong.
No error. *Page 741
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