delivered the following dissenting opinion on the petition for rehearing:
Defendant was charged, tried and convicted of murder in the first degree. At the trial his counsel interposed the defense of insanity, pursuant to which the court was requested to instruct the jury that: “The defense of insanity having been interposed by the defendant in this ease, you are instructed that if you find him not guilty on that ground, to state the fact in your verdict, and the court must thereupon, if it deems his being at large dangerous to the public peace or safety, order him to be committed to any lunatic asylum authorized by the state to receive and keep such persons until he becomes sane, or be otherwise dicharged therefrom, by authority of law.” All of that portion of the requested instruction after the word “verdict” was refused by the trial court. This refusal is assigned as error, and constitutes the sole question presented. I think it clear from the instruction requested that the point involved relates solely to the right of the jury to know the full effect under the law of their verdict in the event the defense of insanity should be sustained, and not the question, as considered and determined by the majority, whether the jury should know the penalty, if any, under such circumstances. As instructed, they received but a part of the law respecting the defense of insanity applicable to such cases. They *525had no means of knowing whether the accused, if found a maniac, should be turned loose upon the community with the probability of his again committing a like crime, or whether it was within the power of the court to consider the verdict, and be governed accordingly. It was not asked that the court indicate what course it would pursue, but what course, under the law, could be taken.
In State v. Cody, 18 Or. 506, 521 (23 Pac. 891; 24 Pac. 895) the court had under consideration the giving of instructions not requested, while here the instruction not given was demanded by the defendant and the language to have been intended by way of argument only, quoted from State v. Cody in the petition appears The defense of insanity under Section 1393, B. & C. Comp., must be proved beyond a reasonable doubt, and, when relied upon, must be considered in connection with Section 1424 of the Code, which provides the course to be pursued in such cases. Section 16, Article I, of the Constitution clearly contemplates that the jury should be fully instructed as to the law, and as to the practice whether this was intended to be imperative only in the event it is requested by the defense under the record in this case becomes unimportant. It needs no argument to demonstrate that where a man has committed what appears to the jury to be a deliberate murder, if they should believe a verdict of not guilty on account of insanity would turn him at large upon the public it would materially affect their determination of the cause. The court should therefore inform the jury that such a verdict may not necessarily so result, and that under the law it is a matter for the court to determine whether his running at large would endanger public peace and safety. This would in no sense be stating to the jury what the penalty would be, or what the court would do under such circumstances; nor is such the import of the requested instruction. Since the law *526requires the insanity to be established beyond a reasonable doubt, unless the jury is fully enlightened as to the law bearing on the subject, this defense, however insane may be the accused, becomes indirectly eliminated. Jurors are not presumed to know the law governing the issues presented. If they were, instructions would probably not be required. I am of the opinion that the constitution intended that the jury should be sufficiently apprised of every phase of the law governing the case as would enable them fully to determine the course they should pursue under the evidence adduced at the trial. This was not done in this case.
Believing that the defendant has been deprived of his constitutional and statutory rights in this respect, I therefore dissent from the conclusions announced by the majority, and think the judgment of the court below should be reversed, and a new trial ordered.