(concurring) — I am not in accord with the views of my brethren as expressed in the foregoing opinions, in so far as it is sought to be shown that it is not within the power of the legislature to say that insanity shall not be a defense to crime. I can find no such inhibition in the constitution, either expressed or implied. No man, whether sane or insane, has any constitutional right to commit crime, and when the legislature provides that the criminality of an act shall be determined by the act itself, and not by the mental -condition of the man who commits it, it violates none of the constitutional rights of the man accused of crime.
In so far as insanity has ever been permitted to determine the noncriminality of an act otherwise criminal, it has been by virtue of the law as given under legislative, and not constitutional, authority. The power to create is the power to ■destroy, and the same law-enacting body which has said that the insane man cannot be guilty of the commission of a •crime may destroy that immunity and determine the character of his act by the same rules as determine the act of the sane man. It is not our purpose to discuss the subject •other than in its constitutional aspect. Otherwise we might add — and why not- — the defense of insanity is permitted, not because of the inability of the insane man to do the thing -complained of, but because of his mental condition there is no moral responsibility, and hence there should be no legal responsibility. It is not the duty of the state to inquire into the moral guilt or innocence of those whom it adjudges .guilty of crime, as it derives its power to determine guilt or innocence only as it finds its law violated and its commandments broken by the individual for whose act there is in law *133no justification. No defense has been so much abused, and no feature of the administration of our criminal law has so shocked the law-loving and the law-abiding citizen, as that of insanity, put forward not only as a shield to the poor unfortunate bereft of mind or reason, but more frequently as a cloak to hide the guilty for whose act astute and clever counsel can find neither excuse, justification, nor mitigating circumstances, either in law or in fact. It is, therefore, not strange that there should be found a legislative body seeking to destroy this evil and wipe out this scandal upon the administration of justice. While an innovation to us, such a law is neither unknown nor untried, as it has been the law of England since 1883; and while its constitutionality cannot be questioned, it being ah act of Parliament and not subject to such attack, its enforcement must have proved its value and obtained the approval of the English people, or some way would have been found to bring about its repeal. I therefore am of the opinion that the legislature has every right to pass a law which destroys this much-abused defense.
I cannot, however, vote to sustain the law for the reasons given by Rudkin, C. J., in the discussion of the second objection raised. Insanity is a question of fact, and such a fact as can only be determined as other material facts are determined, and not left to the arbitrary announcement of a court unaided by the only means known to our law for the ascertainment of facts in a judicial procedure. The question of insanity should, therefore, be determined by the jury as any other fact; and if in their judgment the person accused committed the act, but was insane at the time of its commission, they should, in my opinion, have legislative authority to so determine. Such a fact, then, having been judicially determined, with the preservation of all the constitutional rights of the accused, authority should be given the court to pronounce such judgment as the legislature in its wisdom may determine. Such is the English law above *134referred to, and such a law would not be subject to the defects shown in the opinion of the chief justice.
For these reasons I concur in the result.