Tbe conviction was for murder in the first degree upon an indictment charging this offense, to which pleas of “not guilty” and “not guilty by reason of insanity” were interposed. There was practically no conflict in the evidence relative to the killing by defendant. The matter of dispute was as to the condition of defendant’s mind at the time of the homicide — whether sane or insane.
Several exceptions were reserved during the trial to the admission and exclusion of testimony which are, however, not insisted upon in brief of counsel for appellant. But we will revieiv them. The first of these is based upon the action of the court in permitting the State on cross-examination to ask witness Baldwin, by whom the defendant attempted to show a state of facts from which his insanity at the time of the commission of the homicide might be inferred, “Did you notice any difference in defendant’s conduct when he was sober and when he was drinking?” In view of this and the further testimony tending to show that defendant was drinking on the occasion of the killing, the question was not objectionable and the answer thereto was properly allowed.
The statement of the witness Tharp, excluded by the court on the objection of the State, was clearly objectionable on account of being hearsay, if for no other reason.
There was no error in allowing witnesses Fuller and Prather to give their opinions as to the sanity of the defendant.-Burney v. Torrey, 100 Ala. 157, 173; Ragland v. State, 125 Ala. 12; Parrish v. State, 139 Ala. 16.
This brings us to a consideration of the written charges refused to defendant. Charge 2 is an extract from the opinion in Boswell v. State, 63 Ala. 307, 316. The first proposition asserted in it that “an unsound mind cannot form a criminal intent” is clearly misleading if not wholly incorrect. The mind may in a sense be said to be unsound where its possessor is suffering *95from delusions, hallucinations and illusions, and yet he may be held responsible for a criminal act where the intent is an essential ingredient of the offense, if these things are not the products of a diseased brain.-Gunter v. State, 83 Ala. 109. Nor, in our opinion, does the other portion of the charge relieve it of its misleading tendency, when applied to the evidence in the case. .
Bearing in mind the issues presented by the two pleas, it is clear that charges 4 and 20, under the principle declared in Maxwell v. State, (89 Ala. 150, 165), were properly refused.
Charge 5 misplaced the burden of proof. This conclusion is fully sustained in many of our cases which might be cited. But this is unnecessary, since the statute definitely and with precision imposes the burden of proving irresponsibility upon the accused. — § 4938 of Criminal Code.
Charge 11 invaded the province of the jury.-Fonville v. State, 91 Ala. 43.
Charges 15 and 16 were also misleading. It was open to the jury to find, under the evidence, that the species of insanity or mental unsoundness, if it existed at all, with which the defendant was afflicted, was a temporary aberration which sometimes accompanies or follows intoxication and is often accompanied by delusions, hallucinations and illusions. This is not such insanity as confers legal irresponsibility. _
Insanity to relieve from criminal responsibility jnust be “caused by or result from disease or lesion of the brain.”-Gunter v. State, supra.
Furthermore, if defendant was afflicted with a disease of the brain which rendered him insane he may have known it was wrong to take the life of the deceased, and, under the evidence; it was open to the jury to so find. If he had this knowledge, in order to relieve him of criminal responsibility two conditions must concur: “(1.) If, by reason of the duress of such mental disease, he had so far lost the poioer to choose between the right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed. (2.) And if, at the same time, the alleged crime was so connected *96with such mental disease, in relation of cause and effect, as to have been the product of it solely ”-Parsons v. State, 81 Ala. 596-7.
Affirmed.