made, or was believed to exist, may possibly be informed from the fact that the counsel attempted to introduce certain evidence which may have had a bearing upon the sanity of the accused at the time of the commission of the offense. Upon the examination of the provost-marshal of Norfolk it was asked by the counsel of the accused, as follows: "Please describe the conduct and manner of the accused on the occasion of his examination before you in the evening of the day of the murder. " This question was objected to by the judge-advocate and ruled out by the court, who decided to admit no evidence as to the conduct of the accused after the crime had been committed and the accused arrested and carried before the provost-marshal. After this ruling no other testimony whatever was attempted to be introduced on the part of the accused, and no other suggestion of a defense appears throughout the record.
It is undoubtedly the law that where the specific defense of insanity is set up it is competent to introduce testimony as to the condition of the prisoner's mind after as well as before the offense was committed, in order to ascertain the state of his mind at the time of its commission (Bishop on Criminal Law, section 293; Grant versus Thompson, 4 Connecticut, 203; Kinne versus Kinne, 9 Connecticut, 102). In the present case, therefore, if the counsel had sought to introduce the testimony in question as evidence of insanity the court would have erred in rejecting it. But the purpose of the proposed testimony is in fact nowhere explained and is left quite obscure upon the record. It is nowhere indicated that a defense of insanity was intended to be presented, and in the absence of such indication it is impossible to determine whether the offer of the accused was a bona fide attempt to enter upon a substantial defense or an attempt to improperly influence the judgment of the court by bringing incompetent testimony into the record--testimony, for instance, of the declarations or statements of the accused made subsequent to the crime and in explanation of it, which have invariably been held inadmissible and not as part of the legitimate res gestoe.
Further, it is to be remarked that the tenor of the address to the court, offered by the accused at the close of the proceedings, directly repels the idea that a defense on the ground of insanity was seriously proposed. The address commenced with this language: "Although I do not intend to make a formal address, I can yet see how the evidence could be so explained as to show a case of self-defense, instead of what now seems the act of a madman. " He then goes on to say, after a review of the testimony: "Upon the evidence now in, the act proved looks like the act of a madman. Here is an act seemingly without motive. The most malignant secessionist, unless insane, would not commit an act so seemingly without a motive. " He then proceeds to intimate what his motive really was, and finds it in his determination not to be arrested and marched off under a guard of negroes--an indignity which he represents as having been threatened by the deceased (in the conversation which was inaudible to the witnesses), and which, he asserts, "he would not submit to. " He further alleges a provocation for his act in the presence of the colored troops, whom he deems to have been brought into Norfolk to provoke and insult the inhabitants. In connection with this plea of self-defense he also claims that the evidence shows not an intent to kill but merely to wound the deceased. It is also to be noticed that nowhere in his address does he make any allusion to the offer of his counsel to prove his conduct and manner, or to the ruling of the court upon the question proposed to be