The prosecuting attorney for King county by information charged the defendant with the crime of assault in the first degree, as follows:
“He, said Martin Strasburg, in the county of King, state of Washington, on the 3d day of September, A. D. 1909, did wilfully, unlawfully and feloniously make an assault upon one Otto Peeck with a firearm, to wit, with a revolver-pistol, then and there loaded with powder and ball, which he, said Martin Strasburg, then and there had and held, and did then and there wilfully, unlawfully and feloniously, with said *111revolvei'-pistol, shoot at, toward and into the body of said Otto Peeck, with intent then and there wilfully, unlawfully and feloniously to kill said Otto Peeck.”
The offense charged by this information is defined by § 2413 of Rem. & Bal. Code, as follows:
“Every person who, with intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another, shall assault another with a firearm or any deadly weapon, or by any force or means likely to produce death; . . . shall be guilty of assault in the first degree and shall be punished by imprisonment in the state penitentiary for not less than five years.”
The trial resulted in a verdict of guilty against the defendant. His motion for a new trial being denied, judgment and sentence was rendered against him upon the verdict. From this judgment, the defendant has appealed.
The principal grounds relied upon by learned counsel for defendant to secure a reversal of the judgment are that the trial court erred in refusing to admit evidence tending to prove that the defendant, at the time charged as the commission of the crime, was insane and incapable of understanding the nature and quality of his act; and, also, that the court erred in instructing the jury, “that under the laws of this state it is no defense to a criminal charge that the person charged was at the time of the commission of the offense unable, by reason of his insanity, idiocy or imbecility, to comprehend the nature and quality of the act committed, or to understand that it was wrong.”
In'support of these rulings of the learned trial court, counsel for the state rely upon the provisions of § 7 of our new criminal code, Laws of 1909, p. 892; Rem. & Bal. Code, § 2259, providing as follows:
“It shall be no defense to a person charged with the commission of a crime, that at the time of its commission, he was unable by reason of his insanity, idiocy or imbecility, to comprehend the nature and quality of the act committed, or *112to understand that it was wrong; or that he was afflicted with a morbid propensity to commit prohibited acts, nor shall any testimony or other proof thereof be admitted in evidence.”
It is contended by learned counsel for appellant that this statute withholds from him rights guaranteed by our state constitution, and particularly those rights .guaranteed by the following provisions thereof:
Art. 1, Sec. 3. “No person shall be deprived of life, liberty, or property without due process of law.”
Art. 1, Sec. 21. “The right of trial by jury shall remain inviolate.”
We are then confronted with the novel and grave question: Has the legislature the power under our constitution to enact a law taking away from a defendant accused of crime the opportunity to show in his defense the fact that, at the time of the commission of the act charged as a crime against him, he was insane, and by reason thereof was unable to, comprehend the nature and quality of the act committed? We are not advised of any instance where the legislative power of any common law country has ever enacted a law prohibiting all consideration by the jury of the question of the insanity of the accused at the time of the commission of the act relied upon as the offense charged• against him, when such insanity is sought to be shown in his behalf in connection with the question of his guilt. We believe it reasonably safe to assert that this is the first instance of any such enactment. This fact, of course, is not within itself a reason for- holding that the legislature of our state has no such power; but in view of the source of our jurisprudence and the spirit of our institutions, this fact does furnish a reason for us to view this assumption of power with grave concern, and for a more than ordinary critical examination of its alleged source. This is indeed an occasion for heeding the admonition of the concluding section of our constitutional bill of rights, which reads:
“A frequent recurrence to fundamental principles is es*113sential to the security of individual rights and the perpetuity of free government.” Constitution, art. 1, § 32.
At the outset, then, let us recur to some fundamental principles touching the effect of the insanity of one accused of crime, at the time of committing the act charged against him, upon the question of his guilt. It is possible we may thus discover that the mental responsibility of the accused is a fact entering into the question of his guilt upon which he has a right of trial by jury, the same as upon any other fact inherent in that question; even as the fact that the muscular action of his physical body did or did not commit the physical act charged as a crime against him. In the text of Blackstone’s Commentaries, vol. 4, pages 20, 21, and 24, it is stated:
“All the several pleas and excuses which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto may be reduced to this single consideration, the want or defect of will. An involuntary act, as it has no claim to merit, so neither can it induce any guilt; the concurrence of the will, when it has its choice either to do or to avoid the fact in question, being the only thing that renders human actions either praiseworthy or culpable. Indeed, to make a complete crime cognizable by human laws, there must be both a will and an act. . . .
“The second case of a deficiency in will, which excuses from the guilt of crimes, arises also from a defective or vitiated understanding, viz., in an idiot or a lunatic. For the rule of law as to the latter, which may easily be adapted also to the former, is, that ‘furiosus furore solum punitur.’ In criminal cases, therefore, idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself.”
In 1 Russell on Crimes, page 2, it is said:
“Without the consent of the will, human actions cannot be considered as culpable; nor where there is no will to commit an offense, is there any just reason why a party should incur the penalties of a law made for the punishment of crimes and offenses.”
*114The doctrine as understood in the United States is stated in 16 Am. & Eng. Ency. Law (2d ed.), p. 618, as follows:
“From the earliest period of the common law, no criminal responsibility could attach where the accused was so utterly deprived of reason as to be incapable of forming a guilty or criminal intent.”
This is in accord with the view of our leading American text writers: 1 Wharton, Criminal Law (10th ed.), §33; 1 Bishop, New Criminal Law, § 375; 1 McClain, Criminal Law, § 154. Mr. Tiedeman, in his work on State and Federal Control of Persons and Property, § 47, says:
“It is probably the rule of law in every civilized country, that no insane man can be guilty of a crime, and hence cannot be punished for what would otherwise be a crime. The ground for this exception to criminal responsibility is, that there must be a criminal intent, in order that the act may constitute a crime, and that an insane person cannot do an intentional wrong. Insanity, when it is proven to have existed at the time when the offense was committed, constitutes a good defense, and the defendant is entitled to acquittal.”
In the case of Commonwealth v. Rogers, 7 Met. 500, 41 Am. Dec. 458, Chief Justice Shaw, speaking for the supreme judicial court of Massachusetts, said:
“In order to constitute a crime, a person must have intelligence atid capacity enough to have a criminal intent and purpose; and if his reason and mental powers are either so deficient that he has' no will, no conscience or controlling mental power, or if, through the overwhelming violence of mental disease, his intellectual power is for the time obliterated, he is not a responsible moral agent, and is not punishable for criminal acts.”
Mr. Freeman,' the able editor of the American Decisions, in his note to State v. Marler (2 Ala. 43), 36 Am. Dec. 402, says:
“It was always a settled rule of the common law that a person could not be legally punished for any act committed by him while he was insane. . . . The common law never intended to inflict punishment upon one whom it believed to be insane *115at the time when he did the act charged as a crime. For the law holds that a criminal intent is an essential element in every crime, and if by reason of insanity a person be incapable of forming any intent, he cannot be regarded by the law as guilty.”
In 12 Cyc. 164, the doctrine is stated in the text, in substantial accord with the above quotations, and there supported by a great array of cited authorities. Indeed, they are apparently unanimous. The doctrine has been recognized by our territorial supreme court, as well as by this court. McAllister v. Territory, 1 Wash. Ter. 360; State ex rel. Mackintosh v. Superior Court, 45 Wash. 248, 88 Pac. 207.
We have quoted from and cited authorities upon this question to this extent in order to show, not only how firmly fixed in our system of jurisprudence was this doctrine of incapacity of insane persons to commit crime at the time of the enactment of our criminal code of 1909, but, also, to conclusively show that, at the time of the adoption of our constitution, preserving the right of trial by jury inviolate, this doctrine was in full force in the territory of Washington as a part of the common law, unimpaired by judicial decision or legislative enactment. Referring to the declaration of our constitution that the right of trial by jury shall remain inviolate, this court, in State ex rel. Mullen v. Doherty, 16 Wash. 382, 384, 47 Pac. 958, 58 Am. St. 39, said:
“The effect of the declaration of the constitution above set out is to provide that the right of trial by jury as it existed in the territory at the time when the constitution was adopted should be continued unimpaired and inviolate. Whallon v. Bancroft, 4 Minn. 109; State ex rel. Clapp v. Minn. Thresher Mfg. Co., 40 Minn. 213, 41 N. W. 1020; Taliaferro v. Lee, 97 Ala. 92, 13 South. 125.”
This appears to be the rule generally recognized by the authorities. 24 Cyc. 102.
From what has been said thus far, it seems too plain for argument that one accused of crime had the right, prior to and at the time of the adoption of our constitution, to show,. *116as a fact in his defense, that he was insane when he committed the act charged against him, the same as he had the right to prove any other fact tending to show that he was not responsible for the act. Indeed, his right to prove his insanity at the time of committing the act was as perfect even as his right to prove that his physical person did not commit the act, or set in motion a chain of events resulting in the act. These considerations suggest the application to our inquiry of the maxim, “An act done by me against my will is not my act.” 1 Bishop, New Criminal Law, § 288. The question óf the insanity of the accused at the time of committing the act charged being one of fact when sought to be shown in his behalf, it needs no citation of authorities other than the foregoing to demonstrate that it is, and always has been, a question of fact for the jury to determine; as much so as any other question of fact bearing upon the responsibility of the accused for the occurrence of the act relied upon as constituting the offense charged. Such, beyond all question, was the right of all persons accused of crime at the time of, and prior to, the adoption of our constitution.
Our problem then is reduced to the question: Can the legislature under our constitution so circumscribe inquiry touching the question of the guilt of the accused as to exclude all consideration by the jury of his insanity at the time of committing the act? Now, this right of trial by jury which our constitution declares shall remain inviolate must mean something more than the preservation of the mere form of trial by jury; else the legislature could, by a process of elimination in defining crime or criminal procedure, entirely destroy the substance of the right by limiting the questions of fact to be submitted to the jury. In the case of Cummings v. State of Missouri, 71 U. S. 277, 325, Justice Field said: “The constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name. ... If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding.” The *117correctness of this statement is too self-evident to require comment.
The due process of law provision of our constitution above quoted probably does not, of itself, mean right of trial by jury; but it does mean, in connection with the provision “The right of trial by jury shall remain inviolate”, that there can be no such thing as due process of law in depriving one of life or liberty upon a criminal charge, except by a jury trial in which the accused may be heard and produce evidence in his defense, as that right existed at the time of the adoption of our constitution. It is not easy to define in general terms “due process of law” with such precision that we may at once see the exact limit of legislative power fixed by these words in the constitution; nor is it easy to define in general terms “the right of trial by jury”, as guaranteed by the constitution, so that we may readily determine, in all cases, whether or not the legislature has violated this right. But in any event, it is clear that we must look beyond the letter, and give consideration to the spirit, of these provisions before we can hope to discover their true meaning. Judge Cooley, in commenting upon the phrases “due process of law”, and “the law of the land”, which he regards as meaning the same thing, in his Constitutional Limitations (7th ed.), 502, observes:
“If we examine such definitions of these terms as are met with in the reported cases, we shall find them so various that some difficulty must arise in fixing upon one which shall be accurate, complete in itself, and at the same time appropriate in all the cases. The diversity of definition is certainly not surprising, when we consider the diversity of cases for the purposes of which it has been attempted, and reflect that a definition that is, sufficient for one case and applicable to its facts may be altogether insufficient or entirely inapplicable in another.
“Perhaps no definition is more often quoted than that given by Mr. Webster in tile Dartmouth College case: ‘By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that *118every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land.’
“The definition here given is apt and suitable as applied to judicial proceedings, which cannot be valid unless they ‘proceed upon inquiry’ and ‘render judgment only after trial.’ ”
The concluding words' of this quotation seem very comprehensive ; but they do not fully answer the problem we are here confronted with. The words “proceed upon inquiry” suggest the further question, inquiry of what? May such inquiry be so limited as to exclude therefrom any fact or facts the will of the legislature may dictate? If so, then the inquiry may be narrowed by the legislative will, to the ascertainment of some insignificant fact or facts by the jury, and the state still be able to successfully contend that the right of trial by jury has been preserved. This cannot be. The' right of trial by jury must mean that the accused has the right to have the jury pass upon every substantive fact going to the question of his guilt or innocence. Otherwise this provision of our constitution, found, also, in varying language in all the constitutions of the Union, state and Federal — treasured by a free people for generations as one of the principal safeguards of their liberties — would be rendered void and utterly fail in the purpose which our people have always believed it was intended to accomplish.
Black, on Constitutional Law (2d ed.), 519, says:
“The constitutions were intended not merely to secure the right of trial by jury, but also to insure that it should be continued in existence as a substantial and valuable protective right to private suitors. Now it is evident that it would be entirely feasible for a state legislature, if so minded, to impose such onerous and oppressive restrictions or conditions upon this right as to make it practically unavailing to a party for his protection, yet without denying it in express terms. But this would be a palpable violation of the spirit *119and intent of the constitutional provision, and the courts would hold any such restrictions upon the right as not less unconstitutional than the total denial of it.”
In the case of People ex rel. Witherbee v. Supervisors, 70 N. Y. 228, 234, Judge Folger, speaking for the New York court of appeals, said:
“Due process of law requires, that a party shall be properly brought into court, and that he shall have an opportunity when there, to prove any fact which, according to the constitution and the usages of the common law, would be a protection to him or his property.”
This language was quoted with approval by the supreme court of Minnesota in State ex rel. Blaisdell v. Billings, 55 Minn. 467, 57 N. W. 206, 794, 43 Am. St. 524; Plimpton v. Town of Somerset, 33 Vt. 283; King v. Hopkins, 57 N. H. 334, 352; Wynehamer v. People, 13 N. Y. (3 Kernan), 378, 442.
We believe enough has been said to show that the sanity of the accused, at the time of committing the act charged against him, has always been regarded as much a substantive fact, going to make up his guilt, as the fact of his physical commission of'the act. It seems to us the law could as well exclude proof of any other substantive fact going to show his guilt or innocence. If he was insane at the time to the extent that he could not comprehend the nature and quality of the act — in other words, if he had no will to control the physical act of his physical body, how can it in truth be said that the act was his act. To take from the accused the opportunity to offer evidence tending to prove this fact, is, in our opinion, as much a violation of his constitutional right of trial by jury as to take from him the right to offer evidence before the jury tending to show that he did not physically commit the act or physically set in motion a train of events resulting in the act. The maxim “An act done by me against my will is not my act,” may, without losing any of its force, be paraphrased to fit our present inquiry as follows: “An act done *120by me without my will, or in the absence of my will, is not my act.”
Learned counsel for the state contend that the legislature has the power to eliminate the element of intent from any and all crimes, and that it can provide punishment for the commission of any act it chooses to define as criminal, regardless of the intent or want of intent with which such act may be committed. In support of this contention, we are cited to instances of laws relating to the sale of liquor to minors and Indians, and living off the earnings of a prostitute, and incest ; under which it has been held that the want of intent on the part of the accused, and want of knowledge on his part as to the age or relationship of the person in connection with whom he commits the prohibited act, does not excuse him; as in State v. Glindemann, 34 Wash. 221, 75 Pac. 800, 101 Am. St. 1001; State v. Zenner, 35 Wash. 249, 77 Pac. 191; State v. Constatine, 43 Wash. 102, 86 Pac. 384, 117 Am. St. 1043. No doubt many other instances of this character might be cited; but none have been called to our attention,, and we think the books do not contain any, where the constitutionality of a law has been sanctioned which conclusively imputes intent to commit crime to an insane person or withholds from him the right to prove in his defense that he was-insane at the time of committing the act. It seems too elementary to call for citation of authorities to show that the-general rule is now and has been for centuries, at least in all common law countries, that “there can be no crime without a criminal intent.” State v. Constatine, supra; 4 Blackstone, 20; 1 Bishop, New Criminal Law, § 287; 1 McClain, Criminal Law, § 112. In a note to People v. Flack (125 N. Y. 324, 26 N. E. 267), 11 L. R. A. 807, the learned editor has collated authorities illustrating the rule and its exceptions. .
While the general rule is subject to some exceptions, seemingly enabling the legislative power to eliminate the element of intent from certain crimes, as indicated by some of our previous holdings, it does not logically follow therefrom that *121an insane person can be rendered amenable to the criminal laws of the state, as long as those laws have in them the element of punishment, which we will notice later. We italicize the words “criminal laws”, for we desire to emphasize the fact that we have not for a moment considered or had in mind what may be done in the way of restraining and caring for the insane under those humane laws enacted for that purpose, which, if not now sufficient to protect society and the insane, can easily be made so without infringing any constitutional right, by virtue of the abundant power residing in the legislature. We are now only concerned with the question of whether or not one accused of crime may be branded as a felon without any consideration whatever, by the jury trying him, of the question of his insanity at the time of comr mitting the act charged against him. Whatever the power may be in the legislature to eliminate the element of intent from criminal liability, we are of the opinion that such power cannot be exercised to the extent of preventing one accused of crime from invoicing the defense of his insanity at the time of committing the act charged, and offering evidence thereof before the jury. One so accused had this right at the time of the adoption of our constitution, and we are of the opinion that the question is so inherently related to the guilt or innocence of.all accused persons that it cannot be now taken away from them without violating these guarantees of the constitution.
Since we conclude that the defendant has the right to have submitted to the jury the question of whether or not he was insane at the time of committing the act charged against him in connection with and as bearing upon the question of his guilt, we need not notice the provisions of § 2283, Rem. & Bal. Code, providing for the disposition of a convicted person who, in the judgment of the court trying him, was insane at the time of committing the act for which he was convicted, further than to observe that that section does not pretend to give to the accused the right to have the question of his in*122sanity submitted to the jury in connection with, and as bearing upon, the question of his guilt, but leaves the question of his insanity entirely to the trial judge. This, of course, is not a jury trial upon that question.
Finally, we will briefly notice the very able and ingenious argument put fox*ward by learned counsel for the state, based upon the seeming assumption that the modern humane treatment of those convicted of crime practically removes them from the realm of punishment and places them in a position but little different from those other unfortunate members of society which the state is obliged to care for and restrain of their liberty; not because they have committed wrong, but because of their menace to society and themselves without fault of their own, the insane. Learned counsel’s premise may be better understood by quoting from his brief as follows:
“The central idea upon which the whole fabric of criminal jurisprudence was formerly built was the idea that every criminal act was the product of a free will possessing a full understanding of the difference between right and wrong and full capacity to choose a right or wrong course of action, and, as one error naturally and logically follows another, it was only natural and logical that society should have prescribed punishments as a central feature of its scheme for correction. A better understanding of crime and-the science of cx’iminology now convinces us that this theory is wholly wrong, — that a dominant percentage of all criminals are not free moral agents, but, as a result of hereditary influences or early environments, are either mentally or morally degenerate or their crimes are committed under the degenerating influence of intoxicating liquor. An undex'standing of this fact has made readily apparent the folly of expecting that punishment could relieve the condition, and accordingly stocks, whipping posts and chain gangs are giving way to workhouses, refox-matories and asylums, the purpose of which is to instruct, educate and reform rather than further to debase the individual; and the modern systems of criminal classification and segregation are themselves a recognition of the fact thqt every criminal is a concx’ete problem.”
*123Counsel then cites certain provisions of our laws providing in a measure for the classification and treatment of those convicted of crime, and continuing, argues that the purpose of these laws, “is to put in operation in this state a scheme of criminal jurisprudence which gives recognition to these ideas.” The argument seems to be, in its last analysis, that because of modern humane methods in caring for and treating those convicted of crime, there is no longer any reason for taking into consideration the element of will on the part of those who commit prohibited acts, when their guilt is being determined for the purpose of putting them in the criminal class for restraint and treatment. Learned counsel’s premise suggests a noble conception, and may give promise of a condition of things towards which the humanitarian spirit of the age is tending; yet the stern and awful fact still remains, and is patent to all men, that the status and condition, in the eyes of the world and under the law, of one convicted of crime is vastly different from that of one simply adjudged insane. We cannot shut our eyes to the fact that the element of punishment is still in our criminal laws. It is evidenced by the words “shall he punished,” found in this very section defining the crime here charged against appellant. It is evidenced by these or similar words characterizing the treatment which the law imposes upon those convicted of crime, in practically all parts of our criminal code prescribing the fate of the guilty. As long as this is the spirit of our laws, though it may be much mellowed in the treatment of the convicted, as compared with former times, the constitutional rights here invoked must be given full force and effect when an accused person is put upon trial to determine the question of his guilt of crime. We regret the necessity of holding that the legislature has exceeded its constitutional power; but we cannot escape the conclusion that § 2259, Rem. & Bal. Code, Laws of 1909, p. 891, § 7, has the effect of depriving the appellant of liberty without due process of law, especially *124in that it deprives him of the right of trial by jury; and is therefore unconstitutional.
The judgment of the learned trial court is reversed, with direction to grant appellant a new trial.
Crow, and Mount, JJ., concur.