I dissent from the order of the court denying a rehearing.
It is assumed in the opinion of Mr. Justice Garoutte, as it has been in the argument of counsel, that the same test is to be applied in determining whether the death of Fiske was caused by an injury intentionally inflicted within the meaning of this policy, as is applied to the plea of insanity in a criminal case. Accepting this proposition as embodying a correct statement of the law, it follows that unless the slayer of Fiske was of such unsound mind at the time of the killing as not to know the nature and quality of the act, or, in other words, so insane as not to know that it was wrong and criminal, then the injury was purposely inflicted notwithstanding the slayer may have been impelled to the act by an insane impulse which he had not the power to resist. For such is undoubtedly the law of this state as established by numerous decisions in criminal cases.
This being so, it could not fail to prejudice the defendant to allow evidence to go to the jury, over its objection, to the effect that there is a kind of insanity which our law does not recognize as an excuse for crimi*348nal acts. Such testimony was wholly uncalled for. It was for the court to inform the jury as matter of law what insanity is, and to confine their consideration to that species of insanity which the law recognizes. But the ruling admitting the evidence quoted in the opinion of the court over the defendant’s objection was, in effect, a declaration to the jury that it was material for them to know, as bearing upon the issue to be found, that there is a kind of insanity other than that which determines responsibility for criminal acts. Such a ruling, unless subsequently cured by striking out the objectionable testimony, and instructing the jury unequivocally that they must wholly discard it from their consideration in making up their verdict, is, in my opinion, not only erroneous but highly prejudicial. .And I think it is laying down a most dangerous rule, and one which must lead to serious abuses, to say, as the court does say, with reference to this testimony, that there is “no possible objection to a practice of placing before them (the jury) general information bearing upon this most metaphysical and abstruse subject.” The aim and effort of courts ought to be to make the law, which jurors are to consider for the purpose of finding a verdict, as plain and simple as possible, and, to my mind, there exist the gravest possible objections to the admission of witnesses to testify to that which is purely matter of law, and especially when, as in this case, such testimony is, for all possible purposes of the trial, in direct conflict with the law governing the decision of the jury.
But the error of the superior court did not end with the admission of this testimony. So far from striking it out and instructing the jury to disregard it, the court charged the jury with respect to insanity, in the language quoted in the opinion of Justice Garoutte (6th paragraph). In this instruction two, possibly three, distinct hypotheses are stated, upon either one of which the jury are told they may find that the injuries to Fiske were unintentional, and one of these hypotheses clearly is the insane impulse theory, pure and simple. *349The attempt in the opinion of the court to give to this part of the charge a meaning consistent with the doctrine of insanity, so clearly and so long established in the law of California, is, to my mind, a failure; and, even if the instruction were so obscure and unintelligible in its terms as to warrant us in assuming that the jury did not understand it in an objectionable sense because they could not understand it at all, the original error in the admission of the testimony as to insane impulse would remain uncured.
Because of the errors here briefly indicated, I think that the judgment and order of the superior court are erroneous, and should have been reversed.