delivered the opinion of the Court:
There are eight assignments of error; and the importance of the case, involving as it does the life of the defendant, is sufficient warrant for us to give each and all of them: careful consideration in detail, in order that we may determine, what alone it is our province to determine, whether this defendant has had a fair and just trial according to law.
1. The first assignment of error is plainly untenable. If there is anything well settled in the law of evidence, it is that conversations between a witness and a defendant in a criminal cause cannot be given in evidence on behalf of the latter, when such conversations constitute no part of the transaction for which the defendant is arraigned. Green-leaf on Evidence, sec. 108, and cases cited in notes. We do not understand that this is controverted on behalf of the appellant as a general rule. We understand the argument to be that, when the defence of insanity is set up, an exception is thereby made to the general rule and conversations are admissible to show the development or the existence of insanity in the defendant. But if the laws of evidence are to be relaxed and conversations are to be admitted that are no part of the res gestee, because counsel has announced that insanity is to be relied on as a defence, the laws of evidence might as well be wholly abandoned; for this would be only to throw open the doors to set up the defence of insanity, however unfounded, in all cases, and to allow defendants to manufacture testimony for themselves in advance *35of contemplated delinquency. Insanity has often been simulated as a pretext for immunity from punishment; and the vagaries of speech are the most easy resort for those who are disposed to have recourse to such simulation. Conversations that might readily be the result of design it would be most unsafe to permit to be introduced in evidence as proof of imsanity, without some other adequate indication of mental disorder.
It is very true, however, that conversations, as well as actions, may indicate mental disorder; and in the Guiteau case statements of a' morbid character made by the defendant were allowed to be proved in pursuance of the theory of insanity advanced in that case as a defence. But the insanity set up in that case was of a very different character from that supposed to have existed here; and in view of the peculiar and most extraordinary circumstances of that case, an unusual latitude was allowed to the defence. But even there it was the statements of the defendant that were given in evidence, not the detailed conversations between him and the witnesses. The inquiry here was : “ You may state what conversation you had with him at that time— what you said to him and what he said to you.” This we believe is a broader and looser range of inquiry than has ever yet been allowed in any case. We fail to find any authority whatever to sustain it.
Moreover., there was no specific offer in this case to prove any specific conversation or statement of the defendant that would indicate insanity. If the conversation proposed to be proved contained any intimation of insane mind on the part of the defendant, it would have been easy to submit a specific offer to that effect and have the ruling of the court thereon. This was not done. The proposition was to introduce the conversations of the witness and defendant generally, and what the one said as well as the other. We think the court very properly excluded the testimony.
2. The second assignment of error is even more untenable than the first. It is addressed to the supposed exclu*36sion of testimony which was not in fact excluded. In pursuance of what we have said with reference to the first assignment, we think that, if it had been excluded, the ruling would have been entirely correct.
3. A somewhat different question is presented by the third assignment, the question of the right to have the opinion of a non-expert witness upon the insanity of the defendant under the circumstances that appear in the record. A witness, one Annie Kemp, was called for the defence. She seems to have been one of the persons to whom the defendant served bread; but it does not appear how long she had been receiving bread from him, how long she had known him, how frequently she had seen him, or whether she had ever seen him at all before the week immediately preceding the shooting. Her testimony does not appear in the record. Only the substance of it is given in this statement, that it “ tended to prove that during the last week before the shooting the defendant’s appearance was wild, that he looked wild out of his eyes, and that he did not fill her orders correctly for bread ; ” and with only this preliminary justification, she was asked to give her opinion, from what she saw of him that week and from her conversations with him, of his sanity.
We think the court below was right in excluding that opinion. While there is very great and grave conflict of judicial authority with reference to the admission in evidence of the opinions of non-expert witnesses on the subject of "insanity, we presume that, for this jurisdiction and for the Federal courts generally, the question has been authoritatively settled by the Supreme Court of the United States in the cases of Insurance Co. v. Rodel, 95 U. S. 232, and Insurance Co. v. Lathrop, 111 U. S. 612, in favor of the admission of such testimony. And if we may judge from 'the almost hopeless contradictions generally manifested by the testimony of so-called experts, it is not certain that non-expert testimony may not in most cases be equally good, if not better. But there are well-grounded limita*37tions upon both of these classes of testimony; and the limitations are plainly indicated by Mr. Justice Harlan, speaking for the Supreme Court in the case last cited. He says:
“ While the mere opinion of a non-professional witness, predicated upon facts detailed by others, is incompetent as evidence upon an issue of insanity, his judgment, based upon personal knowledge of the circumstances involved in such an inquiiy, certainly is of value * * * The truth is, the statement of a non-professional witness as to the sanity or insanity at a particular time, of an individual, whose appearance, manner, habits and conduct came under his personal observation is not the expression of mere opinion. In form, it is opinion, because it expresses an inference or conclusion based upon observation of the appearance, manner, and motions of another person, of which a correct idea cannot well be communicated in words to others, without embodying, more or less, the impressions or judgments of the witness. But, in a substantial sense, and for every purpose essential to a safe conclusion, the mental condition of an individual, as sane or insane, is a fact; and the expressed opinion of one who has had adequate opportunities to observe his conduct and appearance is but the statement of a fact.”
It is plain, therefore, that only the opinion of a witness is admissible for this purpose who has had “ adequate opportunity to observe the conduct and appearance of the party,” and whose judgment is based “ upon personal observation of the appearance, manner, habits and conduct” of the person to whom insanity is imputed. No casual observer of an insolated fact can be held competent to express such an opinion. The witness must appear to have had some adequate knowledge of the manner, habits and conduct of the supposed insane person before he can be permitted to give his impression or opinion of the mental condition of the person. If the witness in the present case had such adequate knowledge, it does not appear from the record; and it should have appeared as a preliminary to *38the interrogatory propounded to her, in order to render her competent to answer the question. Evidently the witness gave to the jury all that she saw or knew; and it is not apparent that her opinion, based upon so slender premises, could have further enlightened them in their investigation of the matter.
4. With reference to the fourth assignment of error, if there was error in the exclusion of the testimony proposed to be given by the defendant as to what he heard and saw in his bedi'oom about half past four o’clock of the morning of the homicide, and as to the conversations between himself and his wife immediately before the fatal occurrence, it would seem that the error was cured by the subsequent admission of all this testimony precisely as it was proposed to be given. It is very true that the subsequent admission of it was with the restriction that the jury should not consider it unless they should find that the man was insane at the time; and this limitation or restriction would seem to destroy or nullify the effect of the testimony, and to be on its face an absurdity. For if the man was insane at the time, it is not apparent of what consequence the testimony could be one way or another in any aspect of the case. If he was insane at the time, he would be relieved from criminal liability without any reference whatever to this testimony. But it is plain to us from the context and from the subsequent charge of the court that the restriction was not intended by. the court and was not understood by counsel in the sense which would reduce it to this absurdity. The testimony in question was offered by the defence for the express purpose, as stated in the record, of showing “ the actuating or effective causes that produced the insanity; ” and the theoiy of the defence was that the defendant was subject to epileptie seizures which for the time being dethroned his reason and which would readily be superinduced by such occurrences as those which the testimony was intended to prove. The insane tendency was presupposed or presumed to exist which these supposed actuating *39causes would rouse into actual insanity. It was necessary to give substantial evidence of the pre-existing insane mental condition before proof of cause to actuate a paroxysm of it could be adduced. And it was in this sense undoubtedly that the restriction should be and was understood — that is, that the proof of actuating cause of insane paroxysm should not be considered by the jury unless the jury found that at the time there was latent insanity or the latent tendency to insane paroxysm which could be converted into actuality by these supposed effective causes.
In the charge, with reference to this testimony, the court said: “ You must first find that he was insane on that morning before you can consider that evidence, and it only becomes proper for your consideration when and after you have determined that he was then insane. It is claimed that he was insane at the time from long continued disease, which had weakened and impaired his mind to the degree of irresponsibility, and that this condition, though it existed, had not theretofore manifested itself in any acts of violence— a kind of latent insanity, so to speak, waiting for some exciting cause to awaken it into activity and cause it to manifest itself in acts of violence — and this belief in his wife’s unchastity, whether founded in fact or not, came suddenly upon him and developed the latent insanity which was already there, and in the first paroxysm of it he killed her. I say that this is the claim on the part of the defendant. Courts and text-writers all concur in pronouncing this a dangerous doctrine, and say that a jury should not apply it in any case except where the insanity is made out clearly to their satisfaction, aside from the evidence of the exciting cause.”
It is clear, therefore, that the restriction was properly explained to the jury, and that no harm was done by it. And it is clear, also, that it was so understood and acquiesced in at the time by the counsel for the defendant. For no exception was taken to the part of the charge that has been cited, which is the part where the restriction was given to *40the jury which the presiding justice said he would give when he admitted the testimony; nor was there any exception taken to the restriction itself as announced by the court at the time. If the defendant, having procured the admission of the proposed testimony, objected to the restriction upon it, he should either have excepted to it then or at the time when it was given to the jury in the charge. Not having done so, he must be presumed to have acquiesced in it.
5. Exception was taken to the refusal of the trial court to permit Dr. Emmons, a young practitioner of medicine, of the age of 24 years, who had been in the practice of his profession for only two years, and who during that period had given his exclusive attention to nervous diseases in the hospitals, and was not shown to have had any experience whatever with gunshot wounds, to give his opinion as to whether the three wounds on the person of the defendant, which he only examined at the time of the trial, six months after the wounds had been inflicted, were caused by one or by two balls. We are wholly unable, to see upon what theory of the law of evidence, or upon what principle of reason, he was competent to speak as an expert. The court below was entirely right in excluding the answer to the question.
6. The sixth assignment of error purports to be based on the alleged refusal of the court below to permit the witness, Lucy Davis, to state the conversations had between herself and the defendant on the day before the homicide with reference to what is called the “ Battles letter.” If this assignment were correct, it would be disposed of by what we have already said in regard to the first assignment. But the record does not show that there was any such ruling by the court as is supposed. The record in this connection shows only that two letters were offered in evidence, one the “ Battles letter ” and the other a letter signed with the initials “ J. Wm. M.,” and that exception was taken to their exclusion. There was nothing whatever shown to connect these letters, or either of them, with any of the parties concerned in this transaction, and no evidence of any kind to justify their in*41troduction; and we regard it as too plain for argument that the court below was right in excluding them.
7. The seventh assignment of error is founded upon the action of the trial court in permitting the prosecution in rebuttal to give evidence tending to contradict a statement by the witness Lucy Davis upon cross-examination. But this assignment has not been noticed in argument, either oral or in brief, on either side; and seems to have been regarded as unimportant — as we also will assume it to be. We may, therefore, dismiss it without consideration.
8. There remains the eighth and last assignment of error, founded upon a sentence in the charge of the court or used by the presiding judge at the end of his charge and in explanation of it. This sentence is to the effect that if the jury should find that the defendant was sane all the time up to within a short time before the firing of the fatal shot and was sane afterwards and remained sane until the present time, they should find that he was sane when he fired the shot. It is claimed for the defence that it is well established by science that an epileptic may be sane up to within a moment of committing a homicide and sane a moment afterwards and totally unconscious of what he did during the intervening minutes by reason of an epileptic seizure which constitutes insanity during the time that it lasts; and copious extracts were read to us from Doctor William A. Hammond’s Treatise on Insanity in support of this position.
We fail to find in these citations any adequate reason for the overthrow of the safeguards of the law on which the security of society is founded. If there is any difference in reason or in principle between the theory of epileptic insanity as here advanced on behalf of the defendant and the theory of emotional insanity that has sometimes been resorted to as a defence of crime, but which has always and uniformly been reprobated and repudiated by the courts, we are unable to perceive it. If epileptic insanity is not different in its actual manifestations from emotional insanity, *42then, harsh as it may seem, society for its own 'protection must continue to punish the one as well as the other, as a crime, and cannot permit it to pass with impunity as a shield for criminal action. But we understand that there is a very well defined distinction between epileptic insanity and what is called emotional insanity. While the paroxysms which superinduce the former may come on very suddenly, and while during the continuance of the epileptic condition acts of violence may be committed which the person would not commit in his sane moments, yet it is not apparent that violent action is ever the characteristic of the primary seizure. There are certain well developed symptoms that precede the insane action ; and practically there is some considerable lapse of time before the tendency to violent action is developed, if any such tendency does in fact supervene; for that tendency in epilepsy seems to be exceedingly exceptional and of rare occurrence.
The law in regard to insanity as a defence to a charge for crime was clearly and correctly laid down by the presiding justice in this instance, with pertinent citations from approved authorities. But in language very emphatic, and yet exceedingly just, he sought to exclude from the consideration of the jury any idea that emotional insanity, so-called, had any place in our jurisprudence. He said to the jury:
. “You should consider all and every item of evidence in the case in determining the question of sanity or insanity. Often, and I may say generally, the occurrences at and near the time of the alleged crime throw great light upon the question of sanity, when that is in issue. What were the acts, conduct, and declaration of the defendant a short time before and after and at the very time of the homicide? Were his conduct and conversations for days before and after and at the time of the shooting, taken as a whole, the acts, declarations, and conduct of a sane or insane man? Coming down to the morning of the homicide, did he return to his house about 4.30 o’clock that morning, and hear and see things that induced him to believe that his wife had then *43recently been engaged in an act of adultery ? If so, and he was insane at the time and his mind in that condition to be thrown out of balance by any sudden excitement, why did he not kill her then ? Or is it more reasonable to suppose that, if he was insane, he would go away as he did and act later, after he had thought the matter over for awhile ? Did he think it over at that time and at the time of the shooting? Did he have the mental power to think and consider, and, if he did, did he understand and know that, if his alleged suspicions against his wife were true, she was guilty of a great wrong ? * * * Was he sane when he took his revolver from the place he did and fired the only shot he says he remembers ? Was he sane when the people gathered to the scene of the homicide, and has he remained sane since ? Is he sane now ? Your answers to these questions will enable you to solve the question of sanity or insanity at the time of the homicide, which is the question for you. If he was insane during the occurrences above recited, it would be very reasonable to believe that he was insane at the very moment he fired the fatal shot; but if he was sane during that period and sane now, then the law requires that you should find him sane at the time he fired the fatal shot; for whatever may be the cry of scientific experts, the law does not recognize, but condemns, the doctrine of emotional insanity — that a man may be sane up until a moment before he commits a crime, insane while he does it, and sane again soon afterwards. Such a doctrine would be dangerous in the extreme. The law does not recognize it; and a jury cannot without violating their oaths.”
It is this statement in regard to the doctrine of emotional insanity to which exception was intended to be taken. And it must be said that it is stated here with more precision than in the sentence in which, at the end of the charge, in the colloquy between himself and the counsel for the defence, the presiding justice stated what he had said on the subject.
But taking this sentence in connection with what was *44actually said in the charge and what the jury were distinctly given to understand, we must hold that the law was correctly stated. The theory of emotional insanity is untenable under any circumstances. It was the purpose of the court absolutely to exclude that theory from the consideration of the jury. As we have said, if, in the opinion of the defence, the theory of epileptic insanity is thereby also excluded — and it is thereby only excluded upon the hypothesis that it is one and the same thing as emotional insanity — then it was properly excluded. If, on the other hand, the epileptic insanity claimed to have existed in this case was different from emotional insanity — and it does not become different by being called by a different name — it was not excluded from the consideration of the jury by the exclusion of the idea of emotional insanity.
On the whole, we do not find any error in the record of this case. It seems to us that the appellant had a fair and impartial trial according to the rules of law, and that his case was fairly submitted to the arbitrament of the jury, which alone was authorized to pass upon the question of his sanity or insanity, his guilt or innocence ; and we, therefore, feel ourselves constrained to affirm the judgment. And it is so ordered.