On Petition for a Rehearing.
Coffey, J. —The appellant in this cause has filed a petition for a rehearing, and in the able brief filed by his counsel it is earnestly insisted that this court erred in its conclusions in the opinion heretofore rendered.
The appellant, at the proper time, asked the court to instruct/the jury that “The law presumes that a man is of sound mind until there is some evidence to the contrary. In prosecutions for offences against the criminal code, an accused is entitled to an acquittal if the evidence engenders a reasonable doubt as to the mental capacity at the time the alleged offence is committed. Evidence rebutting, or tending to rebut, the presumption of sanity, need not, to entitle the defendant to an acquittal, preponderate in favor of the *286accused. It will be sufficient if it raise in jour minds a reasonable doubt. And if shown defendant was a person of unsound mind less than a week before said offence was committed, it is presumed he continued so, and unless the State has shown beyond a reasonable doubt he was sane at that time, you should acquit the defendant.”
The court refused to give this instruction, but instructed the jury as follows :
“ 13. Insanity, when once shown to exist in an individual, is presumed to continue, until the contrary is shown by the evidence.”
“ 15. On the issue formed by the defendant’s special plea, and the reply thereto, hereinbefore referred to, the burden is upon the defendant to overcome the legal presumption of sanity by some evidence ; but, under the law of this State, the defendant would be entitled to an acquittal at your hands under his special plea, if the evidence adduced is sufficient to raise a reasonable doubt in your minds as to whether he was of sound or unsound mind at the time the alleged offence is charged to have been committed. And evidence rebutting, or tending to rebut, the presumption of sanity, need not, to entitle the defendant to acquittal, preponderate in his favor. In that respect it will be sufficient if it create in your minds a reasonable doubt.”
“31. * * * If you entertain a reasonable doubt as to whether he was criminally responsible for the commission of the acts charged in the indictment, if you are satisfied, on the evidence, beyond a reasonable doubt, that he did commit the act charged, you should find him not guilty.”
As was said in the opinion in this cause, a case will not be reversed for the refusal of the court to give an instruction asked, if instructions given by the court cover the essential elements of the law contained in that asked and refused. The essential elements of the law contained in the instruction asked, as above set out, are that the jury, if they find that there is any evidence in the cause tending to prove that *287the appellant, at a time prior to the commission of the of-fence charged, was insane, they must acquit him, unless satisfied beyond a reasonable doubt of his sanity at the time of the offence. This element is clearly set forth in the instructions given.
Instructions are not to be construed in detached portions, but they must be construed together, and when so construed the jury must have understood that if they entertained a reasonable doubt of the sanity of the appellant at the time of the homicide charged, it was their duty to acquit him.
It is earnestly insisted that instruction thirteen, above set out, is erroneous, because the court did not add thereto the words “ beyond a reasonable doubt.”
We do not think so. It was the announcement of a general principle of law, applicable alike to insanity once shown to exist, as to all other things. When a thing is once shown to exist it is presumed to exist always, with some exceptions, until the contrary is shown. It is true that the jury should have been informed, either in that instruction or in some other, that a bare preponderance of the evidence was not sufficient to remove that presumption in a criminal case, but they were so told, in substance, in instruction numbered fifteen. PhysioMedical College v. Wilkinson, 108 Ind. 314.
With the other instruction given by the court upon the subject of the presumption of innocence, what we have said here fully covers all the essential elements of the law contained in instructions numbered two, three, four and five, asked by the appellant.
The appellant also asked the court to instruct the jury that “ There are but two classes of persons under the law of this State; those of sound and unsound mind, and a person of unsound mind can not be held responsible for crime under the criminal law; the law makes no distinction in degrees of unsoundness of mind.”
The court refused to give this instruction, and gave the following:
*288“ 17. * * * If he (defendant) was laboring under an irresistible, uncontrollable mental delusion, impelling him to do said act, that he was at the time of the perpetration of said killing in such a state of mind as to be unable to control his will and his actions in regard to the act so committed, in judgment of law he was insane. * * * *
“ 18. If, at the time of committing the act charged, the defendant was moved thereto by an insane impulse controlling his will and his judgment, an impulse too poAverful for him to resist, and said insane impulse arose from causes, physical or moral, or from both combined, not voluntary or induced by himself, you can not find him guilty.”
“ 10. * * * If the party committing the offence had mental capacity sufficient to adequately comprehend the nature and consequences of the act, and had unimpaired will poAver fully sufficient to control an insane impulse to commit crime, he would be, under the law, responsible for his acts.”
It is true that the law recognizes but two classes, the sane and the insane, and that an insane person is not liable, criminally, for his acts, but the instruction asked, without any explanation to the jury as to what constituted insanity within the meaning of the law,.was calculated to mislead them. The instructions above set out, we think, correctly stated the law as it has heretofore been enunciated by this court. Robinson v. State, 113 Ind. 510; Warner v. State, 114 Ind. 137 ; Wartena v. State, 105 Ind. 445.
Instructions seven and eight, asked by the appellant, are fully covered by the instructions given by the court. It is true that the court does not use the exact language embodied in these instructions, but the principles of law contained therein were fully stated to the jury.
Instruction eleven and one-half, asked by the appellant, upon the subject of good character, is fully covered by instruction numbered twenty-nine, given by the court. In the instruction given by the court the jury were expressly told that they *289might consider evidence of the appellant’s good character as bearing upon the question of guilt or innocence and upon the question of the soundness or unsoundness of his mind.
Filed April 2, 1889.The appellant also asked the court at the proper time to give the jury the following instruction': “Insanity is recognized as a disease which may impair or totally destroy either the understanding or the will, or both; and this disease sometimes takes the form of an irresistible desire to take human life, and when it does, the mind under such conditions, while it may clearly perceive and comprehend the results and consequences arising from such act, is incapable of resistance, and if you find the defendant was thus afflicted when said alleged offence was committed, then you should acquit him.”
So far as this instruction contains the law, it is covered by instruction number eleven given by the court. But the instruction as asked contains matters of fact which should not be embodied in an instruction. It is probably a fact that insanity “sometimes takes the form of an irresistible desire to take human life,” but we do not know it as a matter of law.
In the case of Bradley v. State, 31 Ind. 492 (509), the learned judge who delivered the opinion says: “ Insanity is a disease. * * It is no more the province of the court to instruct a jury as to the effect this disease will produce in a special subject, than as to the result of an attack of cholera or fever. The effect which has been produced is a question of fact, and to be proved in like manner.”
The other reasons urged for a rehearing relate to matters which were fully considered and decided in the opinion heretofore announced in the case. We have again reviewed all these questions and feel warranted in saying that they were correctly decided. We are unable to find in the record any reason for granting a rehearing.
Petition overruled.