same. conclusion of and following the testimony | the payment of the note that the stock purchas adduced by the defendant are tantamount earned dividends with which to pay the to a statement that the defendant, after closing his testimony as set out, had rested; at least, this is the natural inference to be drawn from such recitals. Furthermore, the transcript of the record in this case presents "a bill of exceptions" reciting that "the cause came on for trial before the Honorable Paul Little, judge presiding," showing that the respective parties introduced their testimony which consisted of documentary evidence, oral testimony, and depositions which are set forth in the bill of exceptions. The order in which the testimony was introduced, and by whom introduced, is shown, and the rulings of the court upon the evidence and instructions are set forth, followed by a motion for a new trial. Then the certificate of the official stenographer that "the above and foregoing is a true and correct transcript of the evidence," et cetera, is set forth in the bill of exceptions. This bill was presented by the plaintiff to the presiding judge "for his true bill of exceptions," all of which, as shown by the certificate of the presiding judge, was "signed by him and made a part of the record." A stenographer's certificate as to the correctness of the record of the testimony taken down by him, unless approved by the presiding judge, could not have the effect of making such evidence a part of the bill of exceptions, although such certificate may be found in the transcript of the record. Beecher v. State, 80 Ark. 600, 97 S. W. 1036. But where it is shown, as here, that the bill of exceptions contains the certificate of the stenographer to the effect that the record kept by him was a true and correct transcript of the evidence, and the bill of exceptions recites that it was "presented to, approved, and signed by the trial judge," then such certificate thus approved by the trial judge does warrant the conclusion that the evidence thus brought into the bill of exceptions was all the evidence adduced at the trial. In Leggett v. Grimmett, supra, Chief Justice English, speaking for the court, says: "It is not expressly stated in the bill of exceptions that it contains all of the evidence introduced at the trial, but such is to be inferred from its general tenor." [2] 2. The appellee admitted in his answer that he signed and delivered the note sued on, but he set up: "That for services rendered companies in which S. H. Abbott was the principal stockholder, Abbott offered and insisted that Kennedy have an additional $1,000 stock in the Ft. Smith Refrigerator Company, which would carry with it $2,500 stock in Copeman Electric Stove Company; that it was agreed by and between S. H. Abbott and defendant that in the event the Ft. Smith Refrigerator Company and the Copeman Electric Stove Company failed to pay dividends sufficient to pay said note that demand would not be made for the payment of the same; that the note was executed as a conditional obligation payable only from the divi The court, over the objection of the appellant, permitted the appellee to introduce testimony to prove the above allegations. This was error. It was not competent to establish by parol testimony that the consideration expressed in the note was to be paid only upon condition that the stock, which the note was given to purchase, produced dividends sufficient to pay the same. The note upon its face was a plain promissory note, for $1,000, payable one year from the date thereof, to the payee or his order. Appellee admitted the note was executed and delivered, This completed the contract between the parties to it. To permit oral testimony that the consideration was to be paid only upon a condition precedent was in contravention of the familiar rule which precludes the admission of parol evidence to contradict or substantially vary the legal import of a written instrument. Featherston v. Wilson, 4 Ark. 154; Joyner v. Turner, 19 Ark. 690; Borden v. Peay, 20 Ark. 304; Roane v. Green & Wilson, 24 Ark. 210; Casteel v. Walker, 40 Ark. 117, 48 Am. Rep. 5; Bishop v. Dillard, 49 Ark. 285, 5 S. W. 341; Richie v. Frazer, 50 Ark. 393, 8 S. W. 143; Tisdale v. Mallett, 73 Ark. 431, 84 S. W. 481; Harmon v. Harmon, 199 S. W. 553-cases cited in appellant's brief. In Harmon v. Harmon, supra, we said: "To permit appellant to prove that a plain promissory note, payable under the laws in money, was under the terms of a contemporaneous dise would be to violate the rule which prohibits parol agreement to be paid partly in merchanthe production of parol evidence to vary or contradict the terms of a written contract. Such is the effect of the decisions of this court and of the authorities generally." The doctrine of the above cases is applicable to the facts of this record. Counsel for the appellee rely upon a line of cases which hold that, where a contract was executed and delivered upon condition that it was not to take effect until another event should take place, as between parties to such a contract the same is not enforceable until the contingency happens which, according to the intent of the parties, renders the contract binding. Ware v. Allen, 128 U. S. 590, 9 Sup. Ct. 174, 32 L. Ed. 563; Burke v. Du Laney, 153 U. S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698; Graham v. Remmel, 76 Ark. 140, 88 S. W. 899, 6 Ann. Cas. 167. In these latter cases it was the understanding between the parties that there was to be no binding contract at all when the same was executed and handed over to the payee or obligee and was not to become so until a certain event took place. But in the case at bar the appellee admitted that the contract took effect and was completed at the time of the delivery, and he undertook to show by parol testimony that it was to be paid only in the event the divi to pay the consideration. In Gorrell v. Home Life Ins. Co., 63 Fed. 371, 377, 11 C. C. A. 240, 246, it is said: "The proof proposed here was of an agreement inconsistent with the writing, which in itself is complete and unambiguous. The written promise to pay is absolute. By the proposed proof that promise would have been nullified, and the note converted into an agreement that the sum named should be paid out of accruing commissions, and not otherwise. The case is clearly distinguishable from Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698, where evidence was admitted to show a parol agree ment that a note should not become operative as a note until the maker could examine the property for which it was given. That attack was upon the delivery, and not, as in this case, upon the meaning of the terms of a note, of the delivery of which no question has been made either in the pleadings or proofs." The above is exceedingly apposite to the facts of this record. Since the appellee in his answer and proof tenders no issue that would be a good defense to the note, the is sue as to whether appellant be an innocent holder passes out. The judgment is therefore reversed, and judgment will be rendered here in favor of appellant for the sum of $1,000, with interest, as shown on the face of the note. HANKINS v. STATE. (No. 70.) (Supreme Court of Arkansas. Dec. 22, 1917.) 1. HOMICIDE 294(1) INSANITY SUFFICIENCY OF EVIDENCE. In a homicide prosecution evidence regard ing accused's nervous condition and erratic behavior, especially after separating from his wife, held sufficient basis for insanity instructions. PROVINCE OF Henry & Harris, of Monticello, for appellant. Jno. D. Arbuckle, Atty. Gen., and T. W. Campbell, Asst. Atty. Gen., for the State. WOOD, J. A little before midnight on Wednesday August 15, 1917, Clarence Hankins shot and killed his wife, Willie Bob Hankins, who at the time was staying at the home of her mother, Mrs. Symantha Simmons, in the town of Monticello, Drew county, Ark. He was indicted for the crime of murder in the first degree, was tried, convicted, and sentenced to imprisonment for life in the state penitentiary, and he appeals to this court. His wife The killing was admitted, and appellant set up the defense of insanity. The testimony adduced on behalf of the state tended to show that about a month prior to the killing appellant and his wife "had not been getting along well." She had gone to the home of her mother because of his mistreatment of her. On Tuesday night before the killing he went to the home of his motherin-law, so she testifies, and "seemed as kind and friendly as he had been at any time." He had two small children. His wife and children went to bed about 7:30 p. m. Clarence went out on the gallery and sat a while, then went in and played on the organ a while, then went out on the gallery and smoked a cigarette, then went and got some water, then went back on the gallery and sat awhile. Then he went into his wife's room, waked her up and began to fuss with her, Ile then went out in the yard. said that he was going home to stay, but directly he came back and asked for his shoes. His wife said, "Clarence, I ought to take a chair and knock you over the head." He replied, "Willie Bob, if you put as much as the weight of your hand on me, I will kill you." The next night he came back and entered the house through the back way, asked Mrs. Simmons how much he owed her for board, and told her he was going away. When she informed him how much he owed, he made no reply, but went across the hall into the room where his wife and babies were sleeping. His wife got up and went into the hall. He told her he was going away. When they got on the gallery, she said, "Clarence, why did you go off and talk about me?" He said, "Willie Bob, I did not do it." She said, "You did talk about me to two or three." He said, "It's a lie; I did not talk about you." In just a little while a pistol shot was heard, and she said, “Oh, Clarence has killed me!" He then ran off. Mrs. Simmons stated she saw no cause for his leaving her house on Tuesday night. He came Appeal from Circuit Court, Drew County; out on the porch as usual and talked with Turner Butler, Judge. her the same as he always had. 2. CRIMINAL LAW 740 3. HOMICIDE 27-INSANITY-ELEMENTS. In a murder trial insanity is not a defense unless accused was insanely incapable of knowing the nature of his act, or if he did know it, that he was insanely incapable of realizing he was doing wrong, or, finally, if there was an irresistible impulse to do the act, although accused realized its nature and knew it to be wrong. 4. HOMICIDE 294(1)-INSTRUCTION-SUFFICIENCY. In a murder trial refusing to modify an instruction that accused's delusions regarding his wife's relations with other men was no defense, by the qualification that, if the delusions resulted in an irresistibly insane impulse, defendant would be excused, held erroneous. 5. CRIMINAL LAW 486-EVIDENCE-ADMISSIBILITY. In a murder trial testimony of nonexperts regarding accused's insanity is inadmissible when the opinions were based on facts not stated. Clarence Hankins was convicted of mur- Two or three witnesses testified that on der, and he appeals. Reversed and re- Wednesday night a short time before the manded. killing appellant was trying to borrow a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes serve him closely testified that after his first separation from his wife he seemed very nervous and absent-minded, neglected his work, and tried to avoid people. He could not remember anything, and made a good many mistakes in his work. It was shown that there was considerable talk around the mill about his wife and another man. His sister testified that he worried a great deal about his trouble, and got to where he could not attend to his work. "He would not notice us. He was like he was in a dream or something." gun, and stated that he was going to a cer- | timately and had had an opportunity to ob tain place, and did not know. but that he would have trouble; that he was going to leave for a little while, and it might blow over. One of them let appellant have his pistol. Another testified that he had a conversation with appellant Wednesday morning. Appellant said that on Monday night after he and his wife had been in bed awhile his wife got up and went out, and a little while afterwards he got up and went out. He found his wife out there about the lot, and there was a man out there, who came across the branch towards the barn. Clarence said he ought to shoot him, but thought it was best to go away. This witness testified on cross-examination that he had known the appellant for eight years, and had been working with him for four or five years; that within the last month before the killing he had noticed a change in appellant's disposition, his appearance, and actions. "He was inattentive and seemed like something was bearing on his mind." Appellant told another witness on Wednesday, before the killing that night, about separating from his wife the night before, and said he was going to leave, and talked as though he wanted to injure her some way. This witness saw appellant in jail the next day, and appellant then said to witness that he was sorry for what he had done and wished he had done what witness had advised him to do, saying that if he had he would not have been in the trouble he was then in. He remarked that "they were liable to break his neck, but that death was short that way, and would be that quick," snapping his finger. In the conversation he said that he was leaving his wife on account of some one being there. The witness who had this conversation was a brother-in-law to appellant, and stated that the talk about his wife had been worrying appellant a whole lot. On behalf of the appellant the testimony tended to show that his reputation for peace and quiet was good. One witness, who had known appellant all his life, stated that about thirteen years before appellant stayed at her house about three or four months, during which time he was struck by lightning, which rendered him unconscious eight or ten minutes. After that he could not work in the sun at all, and did not seem like the same boy. Another witness, a sister-in-law, had known him about three years, and had lived in the same house with him for nearly a year, and had worked in the mill with him. She stated that she noticed a difference in the way he worked after his first separation from his wife, which occurred about three or four weeks before the killing. After the separation he would often quit his work for hours and just stare around the shop. She thought he was insane. Several witnesses who had known him in Another witness, who had known him for twelve years, and had worked with him pretty near all that time at the mill, stated that he noticed a great change in the appearance of appellant before the killing. "He seemed to be in powerful low spirits." Monday night preceding the killing witness met the appellant, and he did not notice witness nor speak to him. He did not seem to realize who witness was or that he was any one at all. This caused witness to say to himself, "Old boy, you're all in; just about ready for the asylum." Appellant's brother-in-law, who had grown up with him, testified that from the time of the first separation it seemed that appellant's head “was giving way on him right along, and he did not seem in a normal state of mind at all." He came to witness' house three or four hours after the homicide and was in an awful fix. He said, "Don't let no bunch get hold of me." He was muddy up to his knees and did not have on any hat. They carried him to town and turned him over to the jailer, and when he was searched a small vial of chloroform was found in his pocket. Another sister testified that the morning before the killing he came to her house and acted very peculiarly; did not speak a word, but went through all the drawers of her bureau, which caused her to remark to her husband that she "believed he was going crazy." She "firmly believed that he was losing his mind." One of the witnesses testified that he had known the appellant ten or fifteen years; that the morning before the killing the appellant came to witness' store and told him he was going to Hampton to deliver some goods and collect for some goods for an installment house. Witness said something to appellant about working at the mill. Appel lant said he had not worked there for two months. He told witness how he ran the installment business. There was no reason for him to tell this to witness if he was not working for an installment house. Another witness stated that some time before the killing "he would work on a loom half a day; did not know what he was doing; seemed addled." The mother of appellant testified that when he was about four years old he had choking sensations, and that he was never normal in his life; that after he was struck by lightning he never could work in the sun any more, and had bad spells of nervous prostration. He and his wife got along well after they were married until the separation. "He loved his wife too much, and finally went crazy about it." There was a great deal of insanity in the family of witness. Nine members of the family were crazy. The night before the killing appellant came to witness' house nearly wild. He said, "My God, she is guilty, so help me God." She tried to put him to sleep, but he would not go to bed. She put her arms about him and tried to hold him down on the sofa, but he would lie awhile and start to get up. At length witness dropped off to sleep, and when she awoke appellant was gone and the door was wide open. The jailer testified that when appellant was received at the jail he seemed as a child and had to be dealt with as such. He fell asleep and slept all that day and all that night and part of the next day; did not wake up even when it was raining. Since that time his physical and mental condition had improved, and the jailer did not consider him to be an insane man. Dr. Stanley M. Gates had been treating the appellant about five months before he killed his wife. Appellant thought he had lung trouble. Appellant was mistaken about this. The doctor circumcised him, and he did not even flinch while the operation was going on. Appellant said that life was a hell to him, and that he did not care for anything. He was in a very bad condition physically and was very nervous. The doctor visited him after he was put in jail. He was also very nervous then. He would talk disconnectedly, and his jaws worked peculiarly. The doctor, after qualifying as an alienist, testified that in his opinion the appellant was suffering from paranoia, and stated the symptoms (which he described) indicated that he was so afflicted. He gave it as his opinion that the appellant at times did not know the difference between right and wrong, and did not realize the consequences of his act when he shot and killed his wife. It was the opinion of the expert that appellant felt justified in doing the act, and in his opinion appellant was still insane. Three witnesses who were not experts and who had had no intimate acquaintance or association with appellant were permitted to state, over the objection of appellant, that they were with him or saw him at a show on the night of the killing and there was nothing in his conduct to indicate that he was insane. This testimony was elicited in response to a leading question as to whether there was anything in his conduct or appearance that indicated that he was insane. The court gave correct instructions on the law of murder as applied to the facts from the state's viewpoint of the evidence. The court in several of its instructions also declared the law applicable to the defense of insanity as disclosed by the testimony adduced by the appellant. Among other instructions the court gave the following: "(24) The court instructs the jury that, even though you should believe from the evidence that the defendant was suffering from a delusion that his wife was too friendly with other men, and that defendant acted upon this delusion when he fired the fatal shot, yet this delusion would not justify the defendant in taking the life of his wife, nor excuse him from criminal responsibility." The appellant objected specifically to the giving of the above instruction, and requested the court to modify the same by adding the following: "Unless you further find from a preponderance of the evidence that the defendant at the time of the act was under such a defect of 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 he was doing what was wrong, or if he knew the nature and quality of the act and knew that it was wrong, that he was under such duress of mental disease as to be unable because of the disease to resist the doing of the wrong act, which was the result solely of his mental disease." [1] The facts of this record present a proper case for the application of the law of insanity as announced by this court in the recent case of Bell v. State, 120 Ark. 535, 553-555, 180 S. W. 186. In that case we reviewed the previous decisions of our own court and the authorities generally upon the subject, and endeavored to announce succinctly and clearly the legal rules or tests that should be applied, according to the facts in any case, by which the jury should be guided in considering the evidence in order to determine whether the accused is responsible for the crime charged where his only defense is that of insanity. In Bolling v. State, 54 Ark. 588, 601, 602, 603, 16 S. W. 658, 662, we approved the rules in McNaghten's Case, 10 Clark & F. Reps. 199, to wit: "That to establish a defense on the ground of insanity it must be proved by a preponderance the act the accused was under such defect of of the evidence that at the time of committing reason, from disease of the mind, as not to know the nature and quality of the act that he was doing, or, if he did know it, that he did not know that he was doing wrong." And the further rule, to wit: delusion only, and is in other respects sane, he must be considered in the same situation a. to responsibility as if the fact with respect to which the delusion exists were real." "That if the defendant labors under a partial In approving these rules of McNaghten's Case the court did not hold that the doctrine of irresistible impulse caused by disease of the mind would not be a good defense in cases where the evidence adduced warranted it. In Bolling v. State, supra, the court was of the opinion that the evidence did not warrant an instruction on irresistible im pulse, and gave this as one of the reasons why the ruling of the trial court was correct in refusing prayers for instructions on that subject, and as a further reason this court held that the offered prayers on that subject made no distinction between the irresistible impulse arising out of mere passion or revenge and impulse when the product of a diseased mind. Now it seems to us, en passant, that this court, in Bolling v. State, supra, did not have the correct view of the evidence on the issue of irresistible impulse; for the testimony tended to prove that Bolling was afflicted with paranoia or delusional insanity which had progressed to the stage of suspicion and persecution, in which stage the homicide tendency or mania is most pronounced. Wharton & Stillé, p. 828, § 1031 b, p. 1035. But, be this as it may, the point we wish to stress here is that the comments of this court in passing upon the prayers for instructions in Bolling v. State show that the court had in mind and did not intend to ignore the doctrine that irresistible impulse is a defense to a charge of murder when such impulse is the product of a diseased mind. That this court in that case did not intend to ignore or overrule the doctrine of irresistible impulse is further shown by the fact that this court, in Williams v. State, 50 Ark. 511, 9 S. W. 5, had held that, where one "in consequence of insanity is rendered unable to control his actions by the great excitement or distress which prayed upon his mind at the time the act charged was done," he is not responsible for such act. Judges Cockrill and Battle made the opinion in Williams v. State, supra, which was about two years before the decision in Bolling v. State, supra. The same great judges took part in the latter decision, and we may be sure that, if the court had intended by approving the rules in McNaghten's Case to ignore or to announce any doctrine contrary to the doctrine in Williams v. State, supra, Judge Hemingway, who voiced the opinion of the court in Bolling v. State, supra, would have so stated in express terms. We have reached the conclusion, therefore, that this court, by approving the rules substantially of McNaghten's Case in Bolling v. State, supra, did not intend to enunciate any rule that was in conflict with the doctrine that, when a homicide is committed through an irresistible impulse which is the result solely of the disease of the brain, the person committing the homicide under such duress of mental disease is excused. In coming to this conclusion we are not unmindful of the fact that the rules of McNaghten's Case have been severely criticized as being unsound generally and in conflict with the above doctrine. Inasmuch as we approved these rules in Bolling v. State, supra, without comment, it may be well to note here and briefly review the criticisms made upon these rules and The Supreme Court of New Hampshire wholly repudiates the McNaghten rules. Indeed, that court goes to the extreme view of holding that no legal rules or tests should be declared by the court as a guide to the jury in determining whether or not the defense of insanity, in any given case, should avail the accused. The doctrine of the New Hampshire cases is that insanity is a disease of the mind; that an act which results from a disease of the mind is not criminal; that whether or not a person accused of crime is afflicted with a mental disease, and whether or not the crime was the result of such disease, and whether the will of the accused, by reason of a disease of the mind, was overcome by an impulse which he could not resist, are all questions of fact; that the entire question of responsibility where the defense is insanity is one of fact to be submitted to the jury; that the jury should be told that the only issue for it to determine is whether the killing was the offspring or product of mental disease; and that their verdict should be guilty or not guilty, according as they find that fact to be. State v. Jones, 50 N. H. 369, 398, 399, 9 Am. Rep. 242; State v. Pike, 49 N. H. 399, 442, 6 Am. Rep. 533. In the latter case the court concludes its discussion of the McNaghten rules, and the decisions of the courts approving them, as follows: "The whole difficulty is that courts have undertaken to declare that to be law which is a matter of fact. The principles of the law were maintained at the trial of the present case, when, experts having testified as usual that neither knowledge nor delusion is the test, the court instructed the jury that all tests of mental disease are purely matters of fact, and that, if the homicide was the offspring or product of mental disease in the defendant, he was not guilty by reason of insanity." In Parsons v. State, 81 Ala. 577, 595, 2 South. 854, 865 (60 Am. Rep. 192), the court says: "The rule in McNaghten Case, as decided by the English judges and supposed to have been adopted by the court, is that the defense of insane delusion can be allowed to prevail in a facts would, if real, justify or excuse the act. criminal case only when the imaginary state of * * It holds a partially insane person as responsible as if he were entirely sane, and it ignores the possibility of crime being committed ing upon a human mind, the integrity of which under the duress of an insane delusion, operatis destroyed or impaired by disease, except, perhaps, in cases where the imaginary state of facts, if real, would excuse or justify the act done under their influence." The decisions in these cases are by exceedingly able courts, and all the opinions are to be commended for their vast research and great learning. The opinions of the New Hampshire and Alabama courts, for the most part, are in harmony with the views expressed by many physicians in their treatises on medical jurisprudence of insanity. Ray, Medical Jurisprudence of Insanity, p. 43, § |