1 People v. Moice, 15 Cal. 329 (1860). whether the fact of insanity is established independent of such opinions." The defendant assigns the giving of this instruction as error. The objection urged is that the jury was told in substance that if they found the defendant insane they must so find from facts independent of opinions. We hardly think that the instruction, even when taken by itself, is susceptible of such construction. But the jury was expressly told, in another instruction, that they were to determine what weight and credit should be given to the opinions of witnesses upon the question of insanity. The jury, we think, could not have been misled in the way which the defendant claims. While we say this, we ought, perhaps, to say that we do not regard the question as to whether insanity was fully established by facts independent of opinions necessary to be considered. It is true that the facts, as the court said, were to be considered for a double purpose. But, in defining the double purpose, we should have been better pleased if the court had said that they might be considered for the purpose of testing the value of the opinions, and upon the question as to how far they tended to establish the fact of insanity independent of the opinions. We make this criticism the more freely because we have reached the conclusion that for errors to be pointed out hereafter the case must be reversed and remanded for another trial. The instruction above set out in our opinion contains error. The jury was directed to consider the facts relating to the conduct, language, and appearance of the defendant during the time of the alleged killing. Now, while it is true that it was not material whether the defendant was insane at any other time, if he was sane at that time, yet his conduct, language and appearance at other times were not to be excluded. There was no evidence whatever as to the conduct, language and appearance of the defendant at the precise time when Roberts was killed. He was seen by others on that day, but the evidence of insanity pertains to other days. The evidence showed that he was insane in early life, and had not fully recovered when he came to Western Iowa. There was evidence tending to show that from the time of his first insanity "any trouble" (to use the language

of the witness) "would throw him off his balance." Four relatives of the defendant testified to his changed mental condition from the time his trouble with Roberts com. menced, and they gave their opinion that he was insane. Two others, who do not appear to be relatives, testified to strange conduct of the defendant, and gave their opinion that he was insane. In addition to that, one physician testified that he made an examination of him, and regarded him as insane. While the court did not say that the jury should not consider the conduct, language and appearance of the defendant at times other than that of the alleged killing, the tendency of the instruction was to confine, by implication, the attention of the jury to that time. In this it appears to us

there was error.

The court gave an instruction in these words: "The burden is on the defendant to establish by a preponderance of evidence that at the time of the killing of Roberts if he did kill him, he was in such a state of insanity as not to be accountable for the act; and if the evidence goes no further than to show that such a state of mind was possible or merely probable, it is not suffi cient, but it must go further and overcome the presumption of sanity, and fairly satisfy you that he was not sane." The giving of this instruction is assigned as error. In our opinion the instruction cannot be sustained If it was made probable to the jury that the defendant was so far insane as not to be accountable for his acts, we think that he should have been acquitted. Worcester defines probable as "having more evidence than the contrary." Webster defines it as "having more evidence for than against.” We think that it was sufficient if the evidence of insanity preponderated. The idea. of the court seems to have been that as the presumption of sanity counts for something, it cannot be said to be overcome by a bare preponderance of evidence. There is a course of reasoning which might, perhaps, seem to support this view. The difference between a bare preponderance of evidence and that which is next less might be said to be infinitely small, and that what is infinitely small cannot be weighed or appreciated. But such considerations are too refined.

The rule as to the presumption of sanity has its practical application in imposing the burden of proof upon him who sets up insanity. This is all. The presumption is not to be weighed against any measurable amount of evidence. The judgment, we think, must be reversed and the case remanded for another trial.

SEEVERS, J., filed the following dissent from the opinion of the court on these points: 1. I do not believe the instruction set out in the fourth paragraph of the foregoing opinion is erroneous. The material inquiry was whether the defendant was insane at the time the homicide was committed. His acts and conduct at that time, therefore, we e material as bearing on this quest on. It is immaterial whether defendant was insane prior to the homicid,e if he was not insane then. The acts and conduct of the defendant prior to the homicide, bearing on the question of his insanity at the time of the homicide, are not excluded from the consideration of the jury, unless it can be said to have been done by implica tion. But if this is so, the instruction is not, therefore, erroneous. But in my opinion no such implication can be drawn. 2. This court has held, in more than one adjudged case, that when the defense is insanity the burden is on the defendant to establish such defense by a preponderance of the evidence; and this, and no more, is the thought of the instruction set out in the sixth paragraph of the foregoing opinion. By the use of the word 'probable' the court meant this, and

no more, and so the jury, I think, understood the instruction. It seems to me that the reasoning of the foregoing opinion upon the points above mentioned is refined, technical, and without substantial merit. The court plainly stated that insanity must be established by a preponderance of the evidence, and they could not have understood that any other rule was announced in the instruction. I think it is unfair to the conrt, and not required by the case, to resort to dictionaries for a definition of the word 'probable,' when the connection in which the word is used is taken into consideration. When the instruction as a whole is considered, I am unable to conclude that the word in question as used was prejudicial. ROTHROCK, J., concurred in this dissent.

In Flanigan v. People, 86 N. Y. 554, it was held that voluntary drunkenness was no defence to a crime.

1 Holcomb v. State, 41 Tex. 125 (1874); McClackey v. State, 5 Tex. (App.) 320 (1878); Gehrke v. State, 13 Tex. 568 (1855); McAllister v. State, 17 Ala. 434 (1850); Armour v. State, 63 Ala. 173 (1879); People v. Thurston, 2 Park. 49 (1852); R. v. Francis, 4 Cox, 57; R. v. Searle 1 M. & Rob. 75 (1831); R. v. Wright, Russ. & Ry. 456 (1821); Clark v. State, 12 Ohio, 483; 40 Am. Dec. 481 (1843); Pigg v. State, 43 Tex, 108 (1878); Webb v. State, 5 Tex. (App.) 596.

2 The Law of Expert and Opinion Evidence Reduced to Rules. By John D. Lawson. St. Louis: F. H. Thomas & Co. 1883.