(concurring) — Before discussing the validity of the legislative act under consideration, it becomes important to determine what the legislature has done, or attempted to do. Section 7 of the criminal code of 1909 (Rem. & Bal. Code, § 2259), declares that:
“It shall be no defense to a person charged with the com-' mission 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 to 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.”
If the act stopped here, there could be no question as te the legislative intent. Tor the first time in history, so far as we are advised, the legislature of a civilized state has attempted to place the idiot, who hath no understanding from his nativity, the imbecile and the insane, who have lost their understanding through disease or mental decay, and the sane man in the full possession of all his mental faculties,, on an equal footing before the criminal law. But the legislature did not stop here. Section of the act (Rem. & Bal. Code, § 2283), provides that:
“Whenever, in the judgment of the court trying the same, any person convicted of a crime shall have been at the time of its commission unable by reason of his insanity, idiocy or imbecility, to comprehend the nature and quality of his act, or to understand that it was wrong, or shall be at the time of his conviction or sentence insane or an idiot, or imbecile, such court may in its discretion direct that such person be confined for treatment in one of the state hospitals for the insane or in the insane ward of the state penitentiary, *125until such person shall have recovered his sanity. In determining whether any person convicted of a crime was at the time of the commission thereof unable by reason of his insanity, idiocy or imbecility to comprehend the nature and quality of his act, or to understand that it was wrong, or is at the time of his conviction or sentence insane or an idiot or imbecile, the court may take counsel with one or more experts in the diagnosis and treatment of insanity, idiocy and imbecility, and make such personal or other examination of the defendant as in his judgment may be necessary to aid in the determination.”
• When these two sections are construed together, we are prone to believe that the legislature did not intend to punish one for the commission of a crime, when by reason of his insanity, idiocy or imbecility, he was unable to comprehend the nature and quality of his act, or to understand that it was wrong; but rather that it intended to minimize the well-known evil resulting from the all too frequent interposition of the defense of insanity in homicide cases, where no other defense is available, by changing the time and mode of trial of the issue of insanity.
We reach this conclusion the more readily for the reason that any other construction of the statute would bring it in conflict with the constitution. Assuming, therefore, for the present, that the legislature simply intended to change the time and mode of trial of the issue of insanity, § 2283, supra, is lacking in every essential requirement of due process of law. No attempt has ever been made to give a complete and exhaustive definition of the phrase, “due process of law,” or its equivalent, “the law of the land,” and it has been said by the supreme court of the United States that it is the part of wisdom to leave their meaning to be evolved by the gradual process of judicial inclusion and exclusion as the case presented for decision shall require. Davidson v. New Orleans, 96 U. S. 97. The exposition, however, of the term, “due process of law,” or, “the law of the land,” by Mr. Webster, in Dartmouth College v. Woodward, 4 Wheat. 518, 581, has *126generally been accepted by both courts and law writers, viz.,
“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 every 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.”
Measured by this definition, the deficiencies in the act under consideration become at once apparent. It provides that, whenever, in- the judgment of the court trying the same, any person convicted of a crime shall have been at the time of its commission unable by reason of his insanity, idiocy, or imbecility, to comprehend the nature and quality of his act, or to understand that it was wrong, or shall be at the time of his conviction or sentence, insane, or an idiot or an imbecile, such court may in its discretion direct that such person be confined for treatment in one of the state hospitals for the insane or in the insane ward of the staté penitentiary, until such person shall have recovered his sanity; but how is the court to form a judgment on the question of insanity, idiocy or imbecility? No such charge is preferred against the accused, and, under the express provisions of another section of the act, no testimony or other proof of the mental condition of the accused shall be admitted in evidence. The court must therefore base its judgment on the appearance of the accused, or on other matters de hors the record. But aside from this, the accused has no notice of the proceedings against him, no” opportunity to offer testimony, or to be heard in his defense. The court may adopt its own procedure, free from all constitutional restraints, may counsel with experts if it will, or act as its own expert if it chooses. It is almost needless to say that such a proceeding is an absolute nullity, if the question of insanity be a material one.
*127In State ex rel. Blaisdell v. Billings, 55 Minn. 467, 57 N. W. 206, 794, 43 Am. St. 524, the court had under consideration an act of the legislature of that state providing for the commitment of insane persons, and although the act was far more complete in its details than is the act now before us, it was held that it violated the due process clause of the state and Federal constitutions. In the course of its opinion, the court said:
“It follows that any method of procedure which a legislature may, in the uncontrolled exercise of its power, see fit to enact, having for its purpose the deprivation of a person of his life, liberty, or property, is in no sense the process of law designated and imperatively required by the constitution. And while the state should take charge of such unfortunates as are dangerous to themselves and to others, not only for the safety of the public, but for their own amelioration, due regard must be had to the forms of law and to personal rights. To the person charged with being insane to a degree requiring the interposition of the authorities and the restraint provided for, there must be given notice of the proceedings, and also an opportunity to be heard in the tribunal which is to pass judgment upon his right to his personal liberty in the future. There must be a trial before judgment can be pronounced, and there can be no proper trial unless there is guaranteed the right to produce witnesses and submit evidence. The question here is not whether the tribunal may proceed in due form of law and with some regard to the rights of the person before it, but, rather, is the right to have it so proceed absolutely secured? Any statute having for its object the deprivation of the liberty of a person cannot be upheld unless this right is secured, for the object may be attained in defiance of the constitution, and without due process of law. ... We are not speaking of what every honorable and humane officer would do when a case was before him, but of what the statute will permit an officer to do.”
For these reasons, if the question of insanity is at all a material one under the statute, the procedure prescribed for its determination amounts to a palpable denial of due process of law. But if we must accept the view that the legislature *128intended to abrogate the defense of insanity in its entirety, and to place the sane and the insane, the idiot, and the imbecile, on an equal footing before the criminal law, we are still of opinion that the act is unconstitutional and void. The state seeks to uphold it on two grounds. First, on the ground that it is within the police power of the state to eliminate the question of intent in all criminal cases; and second, on the ground that, under modern theories, the lawbreaker is taken into custody by the state for his own amelioration and reformation, and not as a punishment for crime. In other words, that the theory of legal punishment for crime is a relic of a barbarous age. True it is that, in many cases, the person accused of crime does not intend to commit the particular act which constitutes the crime. Such is the case in involuntary manslaughter, the sale of adulterated food, the sale of intoxicating liquors to minors, habitual drunkards, or insane persons, adultery, incest, statutory rape, and other crimes that might be mentioned. In the case of involuntary manslaughter the accused does not intend to commit the homicide, but does intentionally or negligently commit the wrongful act which results in the homicide. The man who sells adulterated food or intoxicating liquors may not intend to sell the particular kind of food, or to the prescribed class, but he does intend to make the sale. The man who commits adultery may not have knowledge of the married state of his paramour, the man who commits incest may not have knowledge of his relationship to the other party to the crime, and the man who commits statutory rape may not know the age of his victim; but in all such cases the man is a free moral agent, the master of his own destiny, and has it within his power to determine whether the act he is about to commit is or is not a crime, or to refrain from its commission altogether. There is little analogy between such a man and the idiot, the imbecile, or the person who is insane to the degree defined by our statute. It will be conceded that the legislature has a broad discretion in defining and pre*129scribing punishment for crime, but broad and pervading as the police power is, it is not without constitutional limitations and restraints, and we can scarcely conceive of a valid penal law which would punish a man for the commission of an act which the utmost care and circumspection on his part would not enable him to avoid.
The argument that persons are no longer punished for their crimes is illusory and unsound. In the first place, the defense of insanity is almost invariably interposed in capital cases, where there is no other defense, and the man who is deprived of his life for crime is punished, whatever the engine of destruction may be. The man who is deprived of his liberty is also punished, and you cannot change the fact by changing the name. Liberty regulated by law is the birthright of every citizen, and liberty means freedom from arrest and restraint. It means more than this. It means freedom of action, freedom in the pursuit of any lawful business or calling, freedom in the control and use of one’s property, so far as its use does not infringe upon the rights of others, and freedom in the exercise and enjoyment of all the rights, privileges and immunities of citizenship. You cannot convince the prisoner in his cell that he is not undergoing punishment for his crime, and mankind in general will share his doubts. But why should we attempt to uphold the statute on humane grounds, when it is an apparent and palpable attempt on the part of the legislature to punish those whom it fears the tribunal created by the constitution will acquit? All will agree that the unfortunate insane, who are dangerous to themselves or to others, should be restrained of their liberty for their own protection and the protection of society until the danger is removed by death or complete restoration to sanity, but few will contend or agree that they should be punished or restrained beyond this. We are not entirely without authority upon this question.
In 1899 the legislature of North Carolina passed an act which provides that:
*130“When any person accused of the crime of murder . . . shall have escaped indictment, or shall have been acquitted upon the trial upon the ground of insanity, . . . the court before which such proceedings are had shall in its discretion commit such person to the hospital for the dangerous insane, to be kept in custody therein for treatment and care,” etc.
And that: “No person acquitted of a capital felony on the ground of insanity and committed to the hospital for the dangerous insane shall be discharged therefrom unless an act authorizing his discharge be passed by the General Assembly.”
This act was declared unconstitutional in In re Boyett, 136 N. C. 415, 48 S. E. 789, 103 Am. St. 944, 67 L. R. A. 972. In 1878, the legislature of Michigan passed an act providing that any person acquitted of murder and other high crimes by reason of insanity should be sentenced to confinement in the insane hospital of the state’s prison, and that such person could only be discharged therefrom by the governor, upon a certificate of the medical inspector of the insane asylum, and the circuit judge of the circuit from which he was sent, that he is no longer insane. This act was also declared unconstitutional in Underwood v. People, 32 Mich. 1, 20 Am. Rep. 633, on the ground that it denied to the accused the protection of the due process clause of the constitution. There would seem to be little difference between a person found guilty of the commission of a crime while insane, and one found not guilty by reason of insanity, for in both cases the two facts co-exist, viz.: violation of the law and insanity. The opinion in the latter case was delivered by Judge Campbell, and concurred in by Judge Cooley and Chief Justice Graves, jurists who were certainly not lacking in humanity or in a knowledge of constitutional restraints on legislative power. In concluding his opinion, Judge Campbell said:
“It is a result of the dangers which have been multiplied by the absurd lengths to which the defense of insanity has *131been allowed to go, under the fanciful theories of incompetent and dogmatic witnesses, who have brought discredit on science, and made the name of experts unsavory in the community. No doubt many criminals have escaped justice by the weight foolishly given by credulous jurors to evidence which their common sense should have disregarded. But the remedy is to be sought by correcting false notions, and not by destroying the safeguards of private liberty.”
Like all things earthly, our jury system has its imperfections. Jurors are only human. Their passions and their prejudices follow them into the jury box and not infrequently find expression in their verdicts. The disposition of juries to convict on inadequate testimony in prosecutions for certain crimes has become so notorious that nearly every state legislature has found it necessary to provide that in such cases the prosecuting witness must be corroborated. On the other hand, juries will sometimes acquit when the evidence of guilt seems all but conclusive. This result usually happens where there is no public sentiment behind the prosecution, either because of the nature of the crime charged or the particular circumstances leading up to its commission. But, as well said by Mr. Justice Campbell, the remedy for acquittals through maudlin sentiment or in response to popular clamor must be sought by correcting false notions, and not by destroying the safeguards of private liberty.
There are other objections to the act which would render it unconstitutional in individual cases. It provides what shall or may be done with persons who are insane, idiots, or imbeciles, at the time of their conviction, and the clear implication from this is that such unfortunates shall be placed on trial for their crimes. In' that event, what becomes of the constitutional guarantees that the accused shall have the right to appear and defend in person, to be informed of the nature and cause of the accusation against him, to meet the witnesses, etc.? Of what possible avail are these guarantees to a man bereft of reason? But, without pursuing the inquiry further, I am of opinion that the act is unconstitu*132tional, in any aspect we may view it, and I therefore concur in the judgment of reversal.
Gose and Chadwick, JJ., concur with Rudkin, C. J.
Dunbar, J., concurs on the ground first discussed by Rudkin, C. J.