The opinion
Lore, C. J.
We are equally divided upon this question. Judge Cullen and I are clearly of the opinion that this witness ought not to testify. According to the statute law of this State, he has been proven to be insane, and as such has been committed to the Insane Asylum of the State of Delaware, at Farnhurst, where he was received as such and for a time confined. Finding that he was not violent and therefore could be safely left to the care of his *389 family, he was permitted to go home upon parole and has been there for some time.
Insanity once proved, is presumed to continue until it is removed beyond a donbt. This was decided some years ago in the well contested case of State vs. Thomas, where Thomas was charged with killing his little daughter. He was proved by several physicians, in their judgment, to be insane a short time—one or two days—before. Chief Justice Comegys maintained that not withstanding he may have been. insane at that time, unless he was insane at the time of the commission of the act, and so proved, the criminal incapacity would be removed.
On behalf of the prisoner it was contended with great force that insanity once proved, the cloud remains and must be rebutted with positive testimony, and after a most elaborate argument and against the personal conviction of Chief Justice Comegys, the Court so ruled.
Such in this case is the status upon the facts, of these men before us and such is the law governing it. Two witnesses, competent, skillful physicians of this State, under the law, committed the witness as insane. One of the physicians in charge of the institution says he was not discharged as a sane man, and his opinion is that the insane condition remains to this day, so as to unfit him to give a correct statement of what occurred. These men are being tried not for their lives, but upon a charge in which the penalty is imprisonment for life, if found guilty.
I am not willing, where that cloud once exists, unless it is clearly removed, that any man’s life or any man’s liberty should depend upon such testimony.