The plaintiff in error prosecutes her petition to reverse a sentence of life imprisonment upon a conviction of murder in the first degree.
There is but little conflict in the testimony, other than that given by the experts. About 8 o’clock P. M., November 2, 1910, the accused, in the presence of a Mr. Hall, fatally wounded Ira M. Churchill. There is considerable evidence tending to show illicit relations between the. woman and her victim, induced by a promise of marriage, during the year 1910. The accused produced four physicians, who, in ansAver to hypothetical questions, testified that at the time of the homicide she did not have sufficient mind and understanding to know and appreciate that the act was wrong, and the state produced five physicians who testified to the contrary. In this state of the evidence, the court, by instruction numbered 11, told the jury: “The jury is instructed that the law presumes that a person intends all the natural, probable and usual consequences of his acts; that when one person assaults another violently with a *363dangerous and deadly weapon, likely to kill, not in self-defense, or in defense of habitation or property, and not in a sudden heat of passion or sudden quarrel, and the life of the person thus assaulted is actually destroyed in consequence of such assault, then the legal and natural presumption is that death or great bodily injury was intended, and in such case the law implies malice and such killing would be murder.”
The law is well settled in this state that, where the circumstances attending the homicide are proved by eye-witnesses, it is error to instruct that malice will be implied from the killing. Vollmer v. State, 24 Neb. 838; Lucas v. State, 78 Neb. 454; Kennison v. State, 80 Neb. 688. A majority of the court are of the opinion that, since it is clear from the evidence that the only possible legal excuse for the homicide-was insanity, the instruction, while erroneous, was not prejudicially so.
We are of opinion that the court erred in giving its instruction numbered 23, which is as follows: “The opinion of the medical experts are to be considered by you, in connection with all the other evidences in the case, but you are not bound to act upon them to the entire exclusion of other testimony. Taking into consideration these opinions, and giving them just weight, the accused was or was not of sound mind, yielding her the benefit of a reasonable doubt, if such arises from the evidence.” The tendency of this instruction is to withdraw from the jury’s consideration, in determining the issue of sanity, all evidence, other than the opinions of the experts, jurors are not necessarily bound by the. opinion of experts; such opinions are but evidence to assist the jury in finding an essential fact; they should not be arbitrarily or capriciously rejected, but the other evidence may be of such a character and of such convincing weight that the jury may accept it in preference to the opinions.
Mr. Justice Curtis, in his charge to the jury in United States v. McGlue, 1 Curtis (U. S. C. C.) 1, 10, in a *364prosecution for felonious homicide on the high seas, well said: “But these opinions, though proper for jour respectful consideration, and entitled to have, in your hands, all that weight which reasonably and justly belong to them, are nevertheless not binding on you, against your own judgment, but should be weighed, and, especially where they differ, compared by you, and such effect allowed to them as you think right; not forgetting, that on you alone rests the responsibility of a correct verdict.” See, also, Davis v. School District, 84 Neb. 858. This instruction also might lead the jury to believe, they should not give the accused the benefit of a reasonable doubt in considering whether she was of unsound mind, unless the evidence of the experts created that doubt.
Insanity is not an issue by itself to be passed on separately from the other issues in a criminal case, but is involved in the plea of not guilty. 2 Bishop, New Criminal Procedure, sec. 673. True, it is that the presumption of sanity, if not rebutted, sustains that issue in the state’s favor, but if at any stage of the trial evidence is introduced, whether by the state or by the defense, tending to impair or weaken that presumption, then the state should not prevail, unless after a consideration of all of the evidence the jury find beyond a reasonable doubt that the accused at the time of the crime had mind and understanding sufficient to know and to understand that the alleged act was wrong. Knights v. State, 58 Neb. 225; Davis v. United States, 160 U. S. 469; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162. In such a case a reasonable doubt may arise from a lack of evidence to prove that the accused was mentally responsible within the meaning of the law. It is true that in other instructions the court told- the jury that, if after a consideration of all of the evidence they entertained a reasonable doubt of the defendant’s guilt, they should acquit, and that, if they found that any of the material facts assumed in the *365hypothetical questions to be true were not so, they might reject the opinions based thereon, yet the most that can in reason he said concerning their effect on instruction 23 is that the jury might not have been misled by it.
We have held that the giving of inconsistent and contradictory instructions with respect to a material issue is ordinarily prejudicial error, and we find nothing to take this case without the general rule. Henry v. State, 51 Neb. 149.
Since the case must again be tried, wé think it proper to say that there is no testimony in this record to the effect that any witness’s reputation for truth or veracity is bad in the neighborhood where he resides, and if on the next trial the proof shall be in the same condition it will be the part of prudence to eliminate that feature from the instructions. Neither do we discover any evidence that the accused was laboring under a delusion at the time she killed Churchill. We also think that instructions 30 and 31 should more clearly state the necessity for the state to prove that the accused was of sound mind within the meaning of the law.
Instruction numbered 7, if given, should be made more definite, so there can be no reason to. say that the jury might find the accused guilty of murder in the first degree, if they found that the intention to kill and the killing were coincident in point of time.
The judgment of the district court, therefore, is reversed and the cause remanded for further proceedings.
Reversed.