specially concurring. There is no question on my mind that the judgment overruling the motion for a new trial should be reversed upon several of the grounds therein set forth. I do not agree with the first paragraph of the opinion, for I think that the plaintiff in error was entitled to have the request therein stated given in charge to the jury, and that the language employed by the judge in his charge was not a sufficient substitute for the concrete statement which the plaintiff in error desired and to which he was entitled. Eor lack of time I shall not enter into any discussion of reasons which prevent me from giving my full assent to several statements contained in the opinion, and I shall only advert,to two of the grounds of the motion. We all agree that the court did not, in connection with his instructions on the burden of proof on the plea of insanity, or elsewhere, state to the jury that the evidence of insanity could be considered along *93with the other evidence in the case in determining whether the defendant was guilty beyond a reasonable doubt, and if after a consideration of the evidence, including the evidence .of insanity, the jury entertained a reasonable doubt as' to the defendant’s guilt they should acquit him. I think the trial court made it very plain to the jury that if the defendant failed to carry the burden of establishing his insanity by a preponderance of the evidence, then the evidence on the subject of insanity could serve no other or further purpose in behalf of the defendant, but should be entirely disregarded. Some of my honorable colleagues are of'this opinion. The question is one of great importance. In my opinion in the trial of a criminal case the presumption of innocence is an ever-present, all-essential element of the defense of one accused of crime. It should never be minimized, overlooked, or withdrawn from the consideration of the jury from the time the defendant pleads not guilty until the verdict has been signed by the jury. The law in its humanity has provided this presumption, and it is in the nature of evidence, — it is some evidence in his behalf. The court’s language was clear and his expression unmistakeable when he expressly told the jury in the latter part of his charge that “ if the State shows that the defendant did the things that go to constitute murder, convict him unless he carries the burden then of showing by a preponderance of the evidence that he is not mentally responsible for the act the State charges he committed.”
I consider it a fixed rule- in this State that the judges of the trial courts should instruct the jury on indirect defenses such as good character, alibi, and insanity, in substance and effect that evidence as to either of these defenses may be considered along with the other evidence in' the case, even though the jury may not determine that the particular defense has been established by the preponderance of the evidence, in determing. whether or not they are satisfied of the guilt of the defendant beyond a reasonable doubt. If the evidence as to good character, alibi, or insanity, although the Code provides that the defense in either case must bfe proved by a preponderance of the evidence, nevertheless engenders in the minds of the jury a reasonable doubt as to the guilt of .the defendant, they should acquit him, and a failure to so charge is error requiring a reversal. In my opinion no request for instructions is necessary to invoke instructions upon this subject, although *94in the case at bar an apt, pertinent, and correct request for .instructions was presented and.refused.
In Raysor v. State, 132 Ga. 237-239 (63 S. E. 786), this court said: “The criticism of the charges sub judice goes to the point that .the'court failed to instruct the jury that evidence introduced to establish the defense of alibi should be considered on the general ease with the rest of the evidence, and that if a reasonable doubt of guilt be raised by the evidence as a whole, the doubt must be giveii in favor of innocence. Every instruction in a criminal casé should make clear that the burden is on the prosecution to prove the defendant’s guilt of the crime charged beyond a reasonable doubt; and especially should there be no relaxation of the rule in Cases where the defense of alibi is involved, and the jury are instructed that the onus is on the accused to prove his alleged alibi to their reasonable satisfaction. There should never be any. confusion in the charge in presenting the distinction between the burden resting upon the State to prove the defendant’s guilt beyond a reasonable doubt, and the burden of the accused to verify his alleged alibi to the reasonable satisfaction of the jury. A charge which excludes the evidence concerning the alibi from being weighed by the jury on the subject of reasonable doubt as to the defendant’s guilt is erroneous.”
In the case of Carr v. State, 96 Ga. 284 (5) (22 S. E. 570), which is cited in the opinion of the majority, the court said: “ The legal presumption being that every person is sane, and that every such person remains so until the contrary is shown, it is essential to the establishment of the distinctive defense of insanity, as such, that insanity at the time of the commission of the offense be proved by a preponderance of the evidence; and> the burden of so doing rests upon the accused. If this particular defense is not thus established, the jury would not be authorized to acquit upon the same. The evidence bearing on the question of insanity should,' however, be duly considered in connection with all the other evidence, in determining whether or not, upon a view of the whole case, there was a reasonable doubt of the guilt of the accused.” In this case the court did not reverse the decision of the trial judge, because the charge on reasonable doubt in that case was held to be broad enough to cover the evidence of insanity adduced in that particular case. In the case at bar, however, in the *95concluding part of his charge the court said that if the State shows that the defendant did the things that go to constitute murder, the 'jury must convict him unless he carries the burden of showing by the preponderance of the evidence that he is not mentally responsible, and thus excluded from the consideration of the jury the question of whether or not the insanity attempted to be proved could be a factor which could engender in their minds a reasonable doubt of the guilt of the accused.
In the case of Ryder v. State, 100 Ga. 528 (5) (28 S. E. 246, 38 L. R. A. 721, 62 Am. St. R. 334), this court said: "In order to render the distinctive defense of insanity available as a basis for an acquittal, the burden is upoii the accused to show affirmatively, by a preponderance of the evidence introduced at the trial, that he was insane at the time the act for which he is indicted was committed. Though this burden may not be successfully carried so as to authorize a verdict of guilty upon this particular ground, it is nevertheless the duty of the jury to consider the evidence touching the alleged insanity in connection with the other evidence in the case, and then in view of it all determine whether or not a reasonable doubt of the guilt of the accused exists in their minds.” While the burden is on the defendant to show by a preponderance of the testimony that he is insane, nevertheless it is expressly provided that the true question in criminal eases is whether there is 'sufficient evidence to satisfy the mind and conscience of the jury beyond a reasonable doubt. Penal Code, § 1013. No matter what defense may be offered, no matter upon whom the burden of proof may lie, if there is a reasonable doubt in the mind of the jury as to the guilt of the accused, whether it come from the defense of insanity, good character, alibi, or other defense, the jury are authorized to acquit; and they should be so instructed. The whole ease is for the jury. The defenses are not to be singled out. The jury is to pass on all the issues of fact in the aggregate, as a whole; and if all of these issues, or any of them, raise a reasonable doubt, the jury should acquit the defendant and they should be so instructed by the court.
The question- raised by the sixth ground of the amendment to the motion for a new trial is as to the disqualification of a juror upon the ground that he was related to the prosecutor within the prohibited degrees. As pointed out in the decision of the majority *96it was unquestionably shown that the juror was an illegitimate, but there can be no question as to his relationship in a physical sense to the prosecutor so far as testimony can be judged by the usual rules of evidence. As stated in the opinion of the majority, the juror was accustomed to call his putative father “ daddy ” and his father’s brother “uncle,” and the putative father acknowledged him as a son, and one of the uncles who was introduced as a witness also testified to the same facts and seemed to entertain no doubts of the relationship. The mother of the bastard laid the paternity of the child to the same putative father; and who better than she could know ? Some point is made on the fact that the mother herself was not introduced in the present case, but that another witness merely related on the stand what the mother of the juror had stated in regard to his paternity; and that therefore the testimony on this point is mere hearsay. Proof of pedigree by hearsay is recognized everywhere as perhaps the leading exception to the rule which generally excludes hearsay testimony. In my opinion the objection would be potent if the rule applied by the lower court in this case as to this juror referred to a case involving the law of inheritance. I recognize in all its broadness that as to inheritance a bastard is nullius filius. This rule which originated in the ecclesiastical law was wisely designed to encourage matrimony and morality, and it rests upon the soundest public policy; but in my opinion, when it is sought to remove from consideration the principle that blood is thicker than water in the determination of whether a particular person is or is not subject to bias, and as to whether or not this individual would be a fair and impartial juror, the rule as to inheritance comes in conflict with a much higher principle of the law — the right of every litigant to have a fair and impartial jury to pass upon his rights. If this is important as to mere earthly property, how much more paramount is the right when life or liberty is involved? In my opinion the rule which debars a bastard from inheriting, other than through his mother and her kin, does not in any wise affect the right of every citizen to have his case passed upon by jurors like Caesar’s wife, who was required to be above suspicion.
Aside from what has been so well said by Mr. Justice Hines on the subject of the disqualification of the juror, I am of the opinion that it is an essential prerequisite to a fair and legal trial that *97the jurors be homines bonos omni exeeptione majores. “ As to jurors the prime requisite (seemingly universal in its application in this State) is that in every trial both parties are entitled to a jury wholly composed of homines bonos omni Sxceptione majores. And while the court has not been slow to act upon any circumstance indicating that a party had notice or knowledge of a disqualification, and to deal with it as a waiver of the defect, still it seems to be well settled in this State that even after verdict, where it does not appear that the complaining party had knowledge or notice of the juror’s disqualification, the verdict will be set aside, when it is made to appear that, owing to the operation of bias or prejudice, the attitude of any juror negatived or nullified this essential element. In Georgia Railroad v. Cole, 73 Ga. 713, it was said that “ A jury composed of men who are not lawful men — men whose relationship to the parties renders them incompetent as jurors ■— can not render a lawful verdict. If the parties consent to the jurors, or have knowledge of their incompetency, then they will be held to waive the same. It can not be said that the defendants in error have* had their case tried, ■ — • certainly not legally; and although the verdict may be in accordance with the facts, and such as a lawful jury should have rendered, yet it is no verdict, and the court did right to set it aside.” See also Smith v. State, 2 Ga. App. 574 (59 S. E. 311); Hubbard v. State, 5 Ga. App. 599 (63 S. E. 588). In Central R. Co. v. Mitchell, 63 Ga. 173, 180, Justice Jackson, in passing upon the ruling of the lower court as to the disqualification of one of the jurors, who was an employee of the defendant (it not appearing in what capacity he was employed), said: “We think that the employee of the company was properly rejected as a juror. To sit on the case he must be * omni exeeptione major.’ The servant of the company is not. It is almost impossible, however incorruptible one may be, not to bend before the weight of interest; and the power of employer over employee is that of him who clothes and feeds over him who is fed and clothed. Hence the common law excluded all servants, and our statutes have nowhere-altered the rule, and it . should not be altered.” In support of this proposition the learned Justice quoted from 3 Chitty’s Blackstone, 363, Bacon’s Abridgment, Juries, 2, 347, 5, 353, Tidd’s Practice, 852, 3. His logic was so cogent and his conclusion so well expressed that it is used as a *98part of the text in Judge Thompson’s Revision of Merriam on Juries, § 185. “In Stumm v. Hummel, 39 Iowa, 478, it was held that a person sustaining close business relations with either of the parties was incompetent to sit in a cause, — for example, a partner in business with one of the parties. And in Hubbard v. Rutledge, 57 Miss. 7, the same principle was applied where the juror was the clerk of one of the parties to a civil suit. In Merriam on Juries, a New Brunswick case is cited, in which it was held that one in the employment of a stockholder is not disqualified from serving as a special juror in a ease to which the corporation is a party; but it is so plain that this ruling is directly in conflict with the principle announced in Central R. Co. v. Mitchell, supra, that it is not even of persuasive value.” Temples v. Central of Ga. Ry. Co., 15 Ga. App. 115, 117 (82 S. E. 777). I am authorized to say that Mr. Justice Atkinson agrees with the conclusions reached in this concurrence.