Defendant was tried on an indictment charging Mm with the murder of Joseph Fincher.' He defended under a plea of not guilty “by reason of insanity” and a plea of “not guilty.” That he committed the homicide was proven without dispute. In defendant’s behalf testimony was introduced respecting certain peculiarities in his appearance, acts and utterances and of mental unsoundness in other members of his family, which testimony tended to support the plea of insanity. The State introduced testimony of witnesses to effect that they had long known the defendant and were of the opinion he was sane at the time of the killing. Thereupon Dr. Prather, medical expert, was called for the State and testified that he had heard all the evidence in the case. The solicitor then said to him-: “Upon the whole of the evidence in this case tending to show the sanity and insanity of defendant at the time of the tragedy, all - of ivhich you have heard, what is your opinion of the defendant’s mind at the time of the killing of Joseph Fincher?” Against defendant’s objection the witness was allowed to answer: “In my opinion he was sane.” This question called for an opinion of the witness based not on a statement of facts in evidence hypothesized as facts existing, but upon a mass of evidence wherein the opinion evidence for the State was opposed to inferences that might have been drawn from the circumstantial evidence adduced by defendant. A responsive answer to the question such as was given must necessarily have embodied and conveyed to the jury a concluion of the witness as to the credibility of the testimony 'and as to the value of the opinions expressed by other witnesses. To require or allow the witness to thus pass like a jury on the issue of insanity was improper and was probably injurious to the defense. Gunter v. State, 83 Ala. 96, and authorities there cited. For the error in overruling the objection to this question the judgment must be reversed.
In other respects the proceedings in the trial court are free from error.
During a fight between them on the day of and some hours before the homicide, defendant said to the de*55ceased: “Yon liad better kill me now while you got a chance.” This utterance Avas susceptible of being interpreted as a threat, and e\idence of it Avas admissible as tending to show the killing- AAras premeditated and malicious.
Evidence having been introduced in defendant’s behalf of statements supposed to be extravagant, made by him about the value of the dogs, the State was properly alloAved to prove he Avas a great hunter; since to that fact rather than to mental aberration the jury may have found those statements Avere attributable.
The State had a right to prove that at various times during the period covering defendant’s conduct as testified to by his AA-itnesses'defendant had been under the influence of alcoholic stimulants and that he Avas intoxicated by liquor on the afternoon of the tragedy. Evidence of such facts Avas relevant to the inquiry as to defendant’s mental condition generally and so was admissible Avhether or not it had relation to the particular happenings disclosed by the testimony for the defense.
Section 4938, of the Code, provides: “Every person charged Avith crime is presumed to be responsible for his acts, and the burden of proving that he is irresponsible is cast upon the accused. The defense of insanity in all criminal prosecutions shall be clearly proved to the reasonable satisfaction of the jury.” The charge given at the solicitor’s request merely asserts in substance the laAv embodied in this statute. See Gunter v. State, supra. If the jury find a general verdict Of “not guilty,” the defendant is entitled to be released from cus-today, but if a special verdict is found acquitting the defendant on the ground of insanity, the court is required under section 4943 of the Code to “carefully inquire and ascertain AA’hether his insanity in any degree continues, and if it does, shall order him in safe custody, and to be sent to the hospital.” The first, and. second charges refused to the defendant Avould, if given, have tended to mislead the jury as to the burden and degree of proof AAdiieh the statute imposed on the defendant in the trial of the issue under the special plea and to also mislead them to believe they were authorized to render a general' *56verdict of not guilty regardless of whether they found for defendant under the special plea.
By giving the third refused charge the court would have invaded the province of the jury, for though extravagant acts, nervousness, sleeplessness and restlessness on the part of defendant were proper to he proved (Boswell v. State, 63 Ala. 307), whether they amounted to symptoms of insanity, was a question of fact.
Insanity arising from a cause which is usually temporary in effect is not attended with any presumption of continuance.—Pike v. Pike, 104 Ala. 642; Johnson v. Armstrong, 97 Ala. 731; O’Donnell v. Rodiger, 76 Ala. 222. The fourth refused charge makes no distinction between temporary and permanent phases of the disorder and for that reason, if for no other, is bad. .
Reversed and remanded.