dissenting.
I am unable to give my assent to the proposition that there is any evidence tending to show that the plaintiff was-insane at the time he committed the homicide. The most that the evidence shows was certain personal peculiarities which were entirely consistent with a sound mind. Every *625person possesses traits of character peculiar to himself, the outgrowth of his temperament, and the fact that one is morose, silent, sad, loquacious, merry, or morbid does not of itself prove or tend to prove the inability of the party to distinguish right from wrong, yet such proof is constantly resorted to for the purpose of convincing a willing jury that the person who in cold blood has taken the life of a fellow-being was not accountable therefor. Such a flimsy plea of insanity would be laughed out of court if presented as an excuse for forgery, burglary, or other like crimes, but when set up as a defense in a case of homicide —of deliberate murder, the highest crime known to the law — it is treated with respect and consideration, although both judge and jury have reason to believe it to be a sham. In addition to this, in proving the alleged peculiarities of the accused, a great deal of irrelevant matter is introduced before the jury, the tendency of which is to divert their minds from the main issue and obscure the offense charged. The jury, too, are frequently misled in regard to the proof introduced to prove insanity. Suppose that the proof consists largely, as in this case, of evidence that the accused had complained of headache at various times, and that he was frequently moody and silent, but without any proof of his inability to distinguish right from wrong, and the court should treat such evidence sufficient to shift the burden of proof of the prisoner’s sanity upon the state, the jury might, and no doubt in many cases would, from that circumstance alone, relying on the superior knowledge of the judge, return a verdict of not guilty, upon the ground of insanity. To justify an acquittal on the ground of insanity, the testimony should show that the person committing the offense did not retain a degree of reason sufficient to discern the difference between moral good and evil. Wright v. People, 4 Neb., 409. Hopps v. People, 31 Ill., 385. Freeman v. People, 4 Denio, 28. The test as stated by this court in Wright v. People, supra, is the power to *626■discern the difference between moral good and evil at the time the offense was committed. No matter what personal peculiarities an individual may possess, if this power remains his liability continues, and this fact should not be lost sight of by juries.
For the poor unfortunate who has lost his reason, and while in this condition commits homicide, we have naught ■but pity, and no court or jury can be found which would convict in such a case; but the case is entirely different where a person, sane in every respect so far as can be observed, with premeditation and deliberation commits a murder. In such case the safety and well-being of society require that the murderer be punished, and the commission of crime thereby be discouraged. No pretense of insanity should be entertained, and unless the evidence tends to show the inability of the accused to distinguish right from wrong it should not be submitted to the jury.
It is probable that the judge, in his desire to give the accused a fair trial, permitted his attorney to introduce evidence showing certain peculiarities of character of tfie accused, and having admitted such evidence in accordance with the practice in this state, submitted it to the jury for what it was worth, although it is apparent that in his opinion the proof failed to establish insanity. There being no proof, therefore, tending to show that fact, the instructions relating to that subject could not have prejudiced the accused. It is apparent that the ends of justice would be subserved by empowering district judges to withdraw evidence from the jury, the sole purpose of which was to show insanity, where it fails in any degree to establish that fact.