On Petition fojr a Rehearing.
Elliott, C. J.It is now more than fourteen months since *573the original opinion in this case was filed, but it is only a short time since the brief on the’petition for a rehearing was placed on file. The brief has been prepared with care, is an able and elaborate one, and contains a philosophical and thoughtful discussion of the questions involved. Influenced by the earnestness of counsel, we have again given the case full and careful consideration.
The principal position taken by counsel is that hypothetical questions asked an expert witness must embody all of the facts of which there is any evidence. It is assumed, as the chief support of this argument, that the analogue of such questions is found in the instructions of the court to the jury. It is not difficult to perceive that this assumption can not be made good either practically or theoretically.
The argument from analogy is forcible only when the resemblance is close; if there are marked points of difference between the conclusion deduced and the examples taken as leading by analogy to it, the argument.fails. The resemblance between the analogue assumed as a just one by counsel, and the real case, fades away upon close inspection. There is one point of difference so plain and so material that no valid train of analogical reason can be pursued, and that point of difference is the situation of court and counsel. The court sits as an impartial arbiter of the law, charged with the duty of presenting the case for both parties; while counsel are charged with the duty of maintaining the theory which in their judgment is the true one. From the judge a different statement of facts, made in a different form and for a different purpose, is required from that which is expected or required of counsel. Counsel assume the facts which they think the evidence tends to prove, and the jury decide whether the facts assumed by counsel are established by the evidence.
If we should accept as true the assumption of counsel, that the resemblance between the instructions of the court and .the questions of counsel is perfect, still, the conclusion which *574appellant’s counsel deduce is not a just one, because the court is not bound to rehearse all of the evidence in its instructions.
The law is a practical science and is intended to furnish rules which will enable the jury to ascertain the ultimate and ruling facts and arrive at a just result, and no rule can be recognized which is impracticable in operation. The rule stated by counsel is impracticable; it is simply impossible to carry it into force. Among- the reasons which support this conclusion are these: If the court were required to determine whether the hypothetical question correctly stated all the facts, it would be compelled to usurp the functions of the jury. If the court were required to determine whether all the facts were stated, it would be compelled to wrest from the jury the right to determine the credibility of witnesses. If the hypothetical question were required to embrace all the facts, then there would be an end to all certainty in trials, for confusion and endless wrangling must inevitably flow from such a rule.
There is no injustice in the rule that counsel may assume such facts as he deems proved, for the opposing counsel can, on cross-examination, add to the question all such additional facts as he deems proved, or take from it all such facts as he thinks have not been proved, or that have been disproved. By this course the case can, without uncertainty or confusion, be placed fully before the jury.
The adjudged cases and the text-writers are overwhelmingly against the position taken by appellant’s counsel. Since the former opinion was filed, we have followed the earlier cases cited in the former opinion. Elliott v. Russell, 92 Ind. 526. The question is not an open one in this State. The cases cited in the opinion heretofore filed from other courts-show that the entire current of judicial opinion is in harmony with our decisions, and since it was filed two works on expert evidence have been given to the profession which declare the same doctrine and cite many cases. In one of these books it is said: “ It is the privilege of the counsel in such cases to as*575sume, within the limits of the evidence, any state of facts which he claims the evidence justifies, and have the opinion of experts upon the facts thus assumed.” Lawson Expert and Opinion Ev. 153. In the other work it is said, in speaking of a hypothetical question: “ If framed on the assumption
of certain facts, counsel may assume the facts in accordance with his theory of them, it not being essential that he should state the facts as they actually exist.” Rogers Expert Testimony, 39. In addition to the authorities cited by these authors may be cited the recent case of Stearns v. Field, 90 N. Y. 640, wherein it was said: “ It is well settled that when the testimony of experts is proper, counsel may assume the existence of any state of facts which the evidence fairly tends to justify.” At another place in the same opinion it was said: “A striking illustration of the extent to which the rule is carried is found in Harnett v. Garvey, 66 N. Y. 641, where it is held that an error in the assumption does not make the interrogatory objectionable, if it is within the possible or probable range of the evidence.” Again, it was said: “ Such a question' is not improper, because it includes only a part of the facts in evidence. Mercer v. Vose, 67 N. Y. 56.” These authorities, to which many might be added and against which none are arrayed (except the solitary case commented on in the former opinion, which has long since been denied by this and all other courts), fully sustain our ruling that a hypothetical question may assume such facts as the examining counsel deem proved, if they are within the range of the evidence, and that such a question is not improper because it states less or states more than opposing counsel deem the evidence to establish.
The cases of Erickson v. Smith, 2 Abbott App. Cases, 64, and Seymour v. Fellows, 77 N. Y. 178, are not at all in point. Guiterman v. Liverpool, etc., Co., 83 N. Y. 358, and People v. Lake, 12 N. Y. 358, decide that it is not proper for a physician who has heard part of the testimony to give his opinion on it; but they also decide that he should give his opinion as to what the facts, proved or claimed to be proved, indicate *576as to tlie mental condition of the party, and this is in harmony with our ruling. In Rush v. Megee, 36 Ind. 69, many cases condemning expert evidence are cited, but we find no point decided that lends counsel any assistance; on the contrary it is strongly against them. We can not take time to comment on all of the cases cited by counsel, and we dismiss them with the statement that, with the one exception already referréd to, they do not sustain their contention.
The decision in Sage v. State, 91 Ind. 141, is that where there is mental unsoundness the defendant is entitled to an acquittal, and that, under our statute, mental unsoundness does not merely mitigate the offence but excuses it. That decision does not profess to define mental unsoundness; the question of what constitutes mental unsoundness was not in the case. Eggers v. Eggers, 57 Ind. 461, does not profess to state what constitutes insanity, but simply decides that no matter what form the derangement assumes,- it is mental unsoundness; the question was as to the form of the mental disease, not as to what constitutes disease of the mind sufficient to absolve from responsibility. The rule as to what constitutes mental unsoundness in civil cases is stated in Somers v. Pumphrey, 24 Ind. 231. As applicable to criminal cases, the rule is thus stated in an instruction fully approved in Sawyer v. State, 35 Ind. 80: “It is not every slight aberration of the mind, not every case of slight mental derangement, that will excuse a person for the commission of an act in violation of law.” The rule heretofore stated that where there is mental capacity sufficient to fully comprehend the nature and consequences of the act, and unimpaired will power strong enough to master an impulse to commit crime, there is criminal responsibility, is sustained by the case just named, and by the following cases, which we add to the authorities heretofore cited: Freeman v. People, 4 Denio, 9 (47 Am. Dec. 216); Bovard v. State, 30 Miss. 600; State v. Erb, 74 Mo. 199; DeJarnette v. Com., 75 Va. 867; Flanagan v. People, 52 N. Y. 467; S. C., 11 Am. R. 731; Walker v. People, 26 Hun, 67; S. *577C., 88 N. Y. 81; State v. Mewherter, 46 Iowa, 88; Com. v. Rogers, 7 Met. 500. In a recent work entitled Insanity as a Defence to Crime, many cases will be found to the same effect on pages 231 to 270 inclusive. An examination of the cases will prove that we have stated the law as favorably to the accused as it can be asked; indeed, the statement is more favorable than the weight of authority warrants.
We are satisfied that our ruling as to the effect and force •of the record of the commission which directed the appellant to be sent to the hospital for the insane was right. The only doubt we have is whether such evidence should be admitted at all. The case cited holding such' evidence inadmissible is in full harmony with the reasoning in the recent case of Breedlove v. Bundy, ante, p. 319. The statutory examination held before the justices and a physician is not an inquisition of lunacy, and the decision of the examiners has none of the qualities of a judgment. The examination is .simply a proceeding for the purpose of determining a single question, and that is, whether the person under examination is entitled to admission into the hospital. The decision of the examining commission does not put the person brought before it under guardianship; it requires an essentially different proceeding to do that.
It may be true that when insanity is proved the burden is shifted, but it is not true, even upon the concession that the record of the examining commission is evidence, that it proves insanity in a criminal prosecution, and for this reason, if for no other, the quotation from Ordonaux is not in point.
We are not willing to sanction the doctrine that “a per■version of the affections ” constitutes such mental unsoundness as will absolve one from responsibility for crime. We have already cited authorities to prove that such a moral state belongs to a phase of so called moral insanity which the law refuses to recognize as mental incapacity. If it were .insanity, then every lover who in a fit of jealousy slays his *578mistress, or every man wlio is moved to kill another by an impulse arising from fancied wrongs, must go acquit, and this, surely is a result not countenanced by principle or authority.. To the authorities already cited we now add State v. Brandon, 8 Jones Law, 463; State v. Stickley, 41 Iowa, 232; Choice v. State, 31 Ga. 424; Spann v. State, 47 Ga. 549; People v. Finley, 38 Mich. 482; Boswell v. State, 63 Ala. 307; Regina v. Haynes, 1 F. & F. 666; Regina v. Burton, 3 F. & F. 772. Our court has recognized the doctrine that there' may be a disease' of the will power constituting insanity, but. no case that we have found carries tiie so called doctrine of moral insanity any farther.
The tenth charge asked by the appellant does not confine' the inquiry to the question whether the accused was laboring under a delusion, but also affirms that if either delusion or “perversion of the affections ” impelled him to kill his brother, he was entitled to an acquittal. There can be no mistaking the meaning of this instruction, becáuse the language is, “ if, upon the whole evidence, you have a reasonable doubt whether such causes induced the killing of the deceased, you should, acquit the defendant.” We have heretofore cited authorities to the effect that it is not error to refuse an instruction, unless the party is entitled to have it given in the terms prayed, and we think it clear that the appellant was not entitled to have the instruction given as it was written. Even if that part of it which speaks of “ a perversion of the affections ” had not been included in its terms, it is extremely doubtful whether it would have stated the law correctly, for it is not every delusion that relieves from criminal responsibility. Addington v. Wilson, 5 Ind. 137; Johnson v. Johnson, 10 Ind. 387; State v. Mewherter, supra; State v. Felter, 25 Iowa, 67; Com. v. Rogers, supra; State v. Gut, 13 Minn. 341; Guiteau’s Case, 10 Fed. R. 161, Dr. Wharton’s note.
A man can not be absolved from responsibility for crjme, no matter how furious his passion, for passion, in legal contemplation, never constitutes insanity. Guetig v. State, 66 *579Ind. 94; S. C., 32 Am. R. 99; Lynch v. Com., 77 Pa. St. 205; Lawson Insanity as Defence to Crime, 146.
The court told the jury, and properly, that voluntary drunkenness is no excuse for crime, and told them also that “ where delirum tremens is set up as a defence, the delirium must exist at the time of the homicide,” and this, as an abstract proposition, was undoubtedly correct, and there was, as we think,, evidence making it relevant.
We are clear that we were right in holding that the law imposes upon every man the duty of mastering his passions and his appetites, and to the authorities heretofore cited we subjoin this extract from a strongly reasoned opinion, where, in speaking of what is sometimes called dipsomania, it was said: “Upon this proposition, however, I plant myself immovably ; and from it, nothing can dislodge me but an act of the Legislature, namely: that neither moral nor legal responsibility can be avoided in this way. This is a new principle sought to be engrafted upon criminal jurisprudence. It is neither more nor less than this, that a want of will and conscience to do right, will constitute an excuse for the commission of crime; and that, too, where this deficiency in will and conscience is the result of a long and persevering course of wrongdoing. If this doctrine be true — I speak it with all seriousness —the devil is the most irresponsible being in the universe. * * * * The fact is, responsibility depends upon the possession of will — not the power over it.” Choice v. State, 31 Ga. 424, 473; Lawson Insanity as Defence to Crime, 549. If, ~we conclude, there is an undiseased will power, the man who possesses it must exercise if, and can not plead his failure to use what he possesses in common with other persons as an excuse for taking human life. Flanagan v. People, supra.
We have again read the sixteenth instruction and studied counsel’s argument, which is but a repetition of what was said on the former hearing. We are content to take as authoritative the eases cited, and we prefer the statements of an author so justly esteemed as is Seymour D. Thompson to the unsus*580tained assertions of counsel, and this, too, notwithstanding counsel’s criticism.
The instruction approved in Guetig v. State, supra, is good law, and is in harmony with the authorities. Lawson Insanity as Defence to Crime, 455.
It has been several times decided within twelve months, that the weight of testimony, whether of experts or non-experts, is for the jury, and that it is error for the court to assume to instruct which class is entitled to the greater weight. Fulwider v. Ingels, 87 Ind. 414; Vanvalkenberg v. Vanvalkenberg, 90 Ind. 433; Elliott v. Russell, supra; Lawson Expert and Opinion Ev. 154, 240; Rogers Expert Testimony, 58, 60, 61.
The trial court did instruct the jury very plainly that if the appellant was insane, no matter from what cause, he was entitled to an acquittal. Those instructions gave him the benefit of all causes of insanity, and necessarily included insanity from the use of intoxicating liquors, so that he got the benefit of all that is now claimed for him upon the score of diseased mental faculties arising from the use of intoxicating drinks. The instructions fall within the principle laid down in Harvey v. State, 40 Ind. 516, and Sawyer v. State, 35 Ind. 80. In our former opinion we referred to authorities holding that voluntary drunkenness is no excuse for crime, and that it is only insanity that renders a man mentally incapable of committing crime, and to the authorities heretofore cited we add : State v. Gut, supra; Kriel v. Com., 5 Bush, 362; People v. Garbutt, 17 Mich. 8; McKenzie v. State, 26 Ark. 334; Bennett v. State, 2 Mart. & Yerg. 133; Boswell’s Case, 20 Grat. 860; State v. Cross, 27 Mo. 332; State v. Tatro, 50 Vt. 483; State v. Welch, 21 Minn. 22; vide auth. cited 4 Crim. Law Mag. 584 n.
On consultation upon the petition for a rehearing some difference of opinion was developed as to the correctness of the statement in the original opinion that it was not, considered as an abstract question, error to refuse the instruction embodying the statutory definition of mental unsoundness, and *581we have concluded to so far modify the original opinion as t-o leave that point undecided, and to place our decision, so far as this question is involved, solely on the ground that, even if it were proper to give such an instruction, no substantial error was committed in refusing it in the present instance, because the whole ground of mental unsoundness is covered by the instructions of the court. Our statute provides that “ the Supreme Court shall not regard technical errors or defects or exceptions, * * which did not, in the opinion of the Supreme Court, prejudice the substantial rights of the defendant.” R. S. 1881, sec. 1891. Where the whole doctrine upon a subject is stated in the instructions of the court, no substantial injury is done the defendant by refusing to give a definition in the language of the statute. Aside from this consideration, the rule, as stated in the original opinion, has always been that where the instruction asked is substantially embodied in those given by the court, there is no error in the refusal.
Filed June 28, 1884.We can not reverse upon the evidence, for while there is evidence opposing the conclusion reached by the jury, there is much strongly and fully supporting, and long settled rules require us to sustain the verdict in such cases.
Petition overruled.