act, was capable of distinguishing between right and wrong, and was conscious that the act was one which he ought not to have done, he cannot be excused on the ground of insanity.

Since the promulgation of that decision more than fifty years ago, the test of responsibility in cases of alleged insanity there laid down has always been adopted by the criminal courts of our state in instructing juries upon this branch of 401 the law. A rule so important, and which has been accepted so long and so universally, ought not now to be changed by judicial decision. As was said by Chief Justice Beasley in the case of Graves v. State, 45 N. J. L. 208, in commenting upon an attack made upon another rule laid down in the Spencer case: "If such a rule, after so conspicuous and protracted an existence, is to be pushed aside, or even is to be considered as liable to challenge on theoretic grounds, it is difficult to divine upon what stable basis the administration of the law is to be conducted. Very many of the legal regulations which belong to the trial of causes, criminal and civil, are the creatures of custom and usage, and, if such regulations, after having been unquestioned and enforced for half a century, are to be deemed, with respect to their legality, subject to assault, the utmost uncertainty and confusion would be introduced." The test of criminal responsibility in cases of alleged insanity, as stated by the trial court in its charge to the jury, was in accordance with the settled law of the state, and consequently the plaintiff in error suffered no injury therefrom.

But even if it had been the policy of our law to relieve insane persons from responsibility for criminal acts, the doing of which they knew to be wrong, provided they were impelled by irresistible impulse to do them, it is not perceived how such a principle would have had any relevancy in the case before us. A patient examination of the whole testimony has failed to disclose the existence of a single fact which affords any ground for concluding. that the killing of Clara Arnim by the plaintiff in error was the result of an irresistible impulse on his part. And not only is this so, but the plaintiff in error himself, by his testimony given on the witness stand, negatives any such idea. It appears that, on the morning of the homicide, he bought the revolver with which he shot to death the woman who had been his mistress; that after purchasing the revolver, he went to a flower store and purchased a bouquet of flowers, which, the florist understood from him, was to be used at a funeral; that he then went to a barber 492 shop to be shaved, and that as he sat in the chair he told the barber to hurry up, because he (the plaintiff in error) had only eight minutes to live; that he only had until two o'clock to live, and that

he intended to kill himself at that hour; that after being shaved he went to the house where his mistress resided, but that, before entering it, he stopped in an adjoining saloon and took a glass of ginger ale, and that, as he left the saloon, he bade the proprietor farewell, saying, "Good-by, you will never see me again; don't condemn me too hard." Within five minutes after leaving the saloon he had fired the shots which took the life of his mistress, and she was shortly afterward found lying dead upon the floor, holding in her hand the flowers which he had bought, and with his arms clasped around her.

The story told by him on the witness stand was that he did not know, and could not explain, why he had purchased the revolver, although he remembered that he had done so; that although he recollected being in the flower store, he did not know what was in his mind when he bought the bouquet; that he remembered slightly his being in the barber shop, but that he had no recollection of going to the house of his mistress or of shooting her; that his first recollection of being in her house or of seeing her was when she was lying bleeding and dead upon the floor of her room; that he knows that he must have shot her, but that he did not remember anything whatever about it.

It needs no discussion of these facts to show that there is nothing whatever in them to justify the inference that the killing of Clara Arnim by the plaintiff in error was the result of an irresistible impulse on his part, or even to suggest the idea that such was the case. The conclusion that these facts tend to show the existence of an uncontrollable impulse can only be supported by holding that an uncontrollable and an unresisted impulse are one and the same thing.

That the prisoner had thought of taking his mistress' life prior to the day on which the homicide occurred, and resisted the impulse to do so, is evident from his own testimony. He 493 says that, on the Sunday evening preceding her death, he had a conversation with her in which she said to him, "Paul, you look so strange; what is the matter with you?" and that he replied to her, "Clara, I have got to take my whole will power together that I don't take you by the throat and strangle you." He further says that, while he was talking with her on this occasion, he made up his mind to commit suicide on the Thursday then following. We are told, on his behalf, that this conversation affords some evidence of the fact that the homicide was the result of an irresistible impulse, but I am unable to see that it has any such effect Instead of showing the existence of an impulse which could not be controlled, it proves that the impulse which existed in his

mind to take her life was one which he was not only capable of resisting, but was one which he actually did resist on the occasion concerning which he testified.

A careful reading of these proceedings has led me to the conclusion that, when the plaintiff in error purchased the revolver with which he shot Clara Arnim, and the flowers which were found in her hand after her death, he had made up his mind to first shoot her and then himself. He carried out this plan so far as the taking of her life was concerned, but abandoned it when it came to the taking of his own life, although no change seems to have occurred in the circumstances which caused him to determine to kill her and himself. That such a thing as an irresistible impulse to take life sometimes exists in the human mind, I am willing to concede. I do not, however, believe in the uncontrollability of an impulse to kill, which remains irresistible so long as the weapon is directed against another, but ceases to be so when the slayer turns it against himself.

It is further alleged by counsel for the plaintiff in error that the trial court erred in refusing certain requests to charge, and thereby manifestly injured the prisoner. The jury had been instructed by the court that in a case of murder the presumption was that it was of the second degree until the state should establish, by affirmative proof, that the killing was 494 willful, deliberate, and premeditated, and the court was then requested to charge that there was no such proof in this case unless effect was given to certain statements made by the prisoner after the killing, and that, if those statements were made by an insane man, they should have no effect. This request was refused, and, in our opinion, properly so. An examination of the case makes it clear that there was testimony, outside of the statements made by the prisoner after the homicide, which would have been sufficient to sustain a verdict of murder of the first degree if the jury had so found.

Another alleged injurious error to which we are pointed by counsel is the admission of certain evidence, against objection, which is said to have been incompetent. The situation was this: The state had proved that the prisoner and the deceased had been for some time living together as man and wife, and proposed to show that a few weeks before the homicide the deceased became engaged to be married to one Bernard Stensel, who thereafter went to Chicago to live. The prosecutor of the pleas then sought to prove that the prisoner, a few days before the shooting, had threatened to kill Stensel if he should meet him, and the court permitted this evidence to be put in against the objection of the

prisoner. It seems to me that this testimony was competent, as tending to show the determination of the prisoner to prevent the marriage of his paramour with Stensel, even if it was necessary to destroy life in order to do so, and as further tending to show that, by reason of the fact that Stensel was beyond his reach, he killed her in order to accomplish that result. But even if the evidence objected to was incompetent, its admission would not justify this court in reversing the judgment under review. The eighty-ninth section of our criminal procedure act (Gen. Stats, p. 1138) declares that no judgment given upon any indictment shall be reversed for any error except such as shall or may have prejudiced the defendant in maintaining his defense upon the merits. In Hunter v. State, 40 N. J. L. 495, it is said by this court that, by force of this statute, the admission of illegal testimony will not avoid a judgment 495 on error if it plainly appears that such testimony could not have injuriously affected the defendant on the merits of the case. That the admission of the testimony now under consideration could not have injuriously affected the plaintiff in error on the merits, even if it was ille. gal, is beyond question, for he himself, when upon the witness stand, testified upon his direct examination to making the same threat which was sought to be proved against him by the testimony objected to.

The counsel for the plaintiff in error have not called our attention to any other matter which seems to them to have injuriously affected their client on the trial of this indictment, nor has the careful examination which we have made of the record and proceedings sent up with the writ disclosed the existence of any. On the contrary, that examination and the exhaustive consideration which we have given to this case has satisfied us not only that no injurious error has crept into the trial, but also that the plaintiff in error has not suffered any wrong or injury either "by the rejection of testimony, or in the charge made to the jury, or in the denial of any matter by the trial court which was a matter of discretion, or upon the evidence adduced upon the trial." The judgment, therefore, should be affirmed.

CRIMINAL LAW-INSANITY AS A DEFENSE-HOMICIDE.— The test of responsibility for criminal acts, where insanity is the defense, is the capacity of the defendant to distinguish between right and wrong at the time, and with respect to the act which is the subject of the inquiry: Flanagan v. People, 52 N. Y. 467; 11 Am. Rep. 731; Cunningham v. State, 56 Miss. 269; 31 Am. Rep. 360. Compare monographic notes to State v. Marler, 36 Am. Dec. 402411; Parsons v. State, 60 Am. Rep. 212-225, discussing Insanity as a defense to an indictment for crime.

HOMICIDE.-AN IRRESISTIBLE IMPULSE to kill cannot be set up as a defense to murder, so long as the accused knew that the act be was committing was a crime morally, and punishable: State v. Alexander, 30 S. C. 74; 14 Am. St. Rep. 879. Compare Plake v. State, 121 Ind. 433; 16 Am. St. Rep. 408. In South Carolina, moral insanity or uncontrollable impulse is not a defense against a charge of crime: State v. Levelle, 34 S. C. 120; 27 Am. St. Rep. 799. Compare the extended note to Parsons v. State, 60 Am. Rep. 212-225, wherein “uncontrollable impulse" is discussed.

APPEAL-IMPROPER EVIDENCE WITHOUT PREJUDICE.The admission of improper evidence, if not prejudicial, is not reversible error: St. Louis etc. Ry. Co. v. Hackett, 58 Ark. 381; 41 Am. St. Rep. 105.

THE PRINCIPAL CASE was approved in Mackin v. State, 59 N. J. L. 495, where the crime charged was murder, and the defense interposed was insanity. The jury were instructed, if they should find that the defendant was, by reason of any disease of the mind, at the time of the commission of the fatal act, incapable of distinguishing between right and wrong, in respect to that act which he was then doing, to acquit him of any degree of murder and to find him not guilty. But it was urged, on behalf of the plaintiff in error, that this instruction to the jury of the test to be applied by them in determining whether the insanity of the prisoner, if it existed, was such as to relieve him from responsibility for his act, was erroneous; and it was insisted that the true rule, in cases of this kind should be that if a person, being insane, is impelled, by an irresistible impulse, to do the criminal act, he is not legally responsible for its commission, even if he was able, at the time, to distinguish between right and wrong, and knew the quality of the act done. The court, however, was of the opinion that the jury should be instructed that: "To establish a defense on the ground of Insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring 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 that he was doing what was wrong." This was shown to be the English law, as established in McNaghten's case, 10 Clark & F. 200, which was adopted in State v. Spencer, 21 N. J. L. 196, and which, since that time has been universally accepted by the criminal courts of the state of New Jersey as the test to be applied in cases where insanity has been set up as a defense to an indictment.

SNYDER V. DWELLING-HOUSE INSURANCE COMPANY.

[59 NEW JERSEY LAW, 544.] INSURANCE-CONSTRUCTION OF STIPULATIONS.-A stipulation, in a policy of fire insurance, that no agent of the company shall have power to waive "any provision or condition" thereof is, in substance, the same as a stipulation that no agent shall have power to change the "terms and conditions" of the policy.

INSURANCE STIPULATION AS TO WAIVER-LOSS.-4 stipulation, in a policy of fire insurance, that no agent of the company shall have power to waive "any provision or condition" thereof, applies only to those conditions and provisions in the policy which relate to the formation and continuance of the contract of Insurance, and are essential to the binding force of the contract while It is running, and does not apply to those conditions which are to be AM. ST. REP., VOL LIX. — 40