This case is before us on a second appeal. See 52 Iowa, 150.
The defendant was charged with the murder of one Roberts. In February, 1878, the defendant and Roberts were engaged in farming, and resided upon adjoining farms in the county of Pottawattamie. On the sixth day of that month Roberts was found dead in the road, about thirty i’ods from the defendant’s house. There was a hole in his head near one eye, and a pistol ball was found in his brain. lie had left home a short time previous, with the avowed intention of going on an errand to the house of one Axtel. The road from Roberts’ house to Axtel’s led by the defendant’s. Circumstances, not necessary to be detailed here, indicated strongly that Roberts was killed by the defendant.
His counsel contend that if he killed Roberts he did so in self defense. They also contend that he was in such an unsound condition of mind that he was not responsible for his acts. Soon after Roberts died, and not far from where he died, the defendant was seen with blood running down both sides of his face, indicating' that he had received an injury. As to his mental condition, the evidence shows beyond controversy that he was suffering under great depression, caused by trouble of the gravest character. His family was broken up. His wife, as the evidence tends strongly to show, had committed adultery with Roberts; and the fact had come to the defendant’s knowledge. She had left him, and had removed all the furniture from the house except a bedstead, and he had reason to apprehend that Roberts would the next day, or soon thereafter, dispossess him of the house. To the specific evidence of insanity we shall refer briefly hereafter.
*3521. OBIMrNTAL evidence: murder : ex-Seoedenvs01 presence. *351I. The defendant assigns as error the admission of certain evidence. One M’Cuen was examined as a witness in behalf *352of tlie state. ITe testified that the evening before .. a, 11 t-1a1 Roberts’ death he saw him at Axtel’s. lor the . . Pl'irP.ose- °* showing that Roberts was on legitimate business at the time he was killed, the state sought to show that he had an errand at Axtel’s that day. It accordingly asked M’Ouen a question in these words: “State if any arrangement was made, on the evening prior to the decease of Roberts, by which Roberts was to go to Axtel’s the next day?” This question was objected to by the defendant as leading, immaterial and incompetent. The court overruled the objection, and the witness answered: “He made an arrangement to be there the next morning between eight and nine o’clock to look at some steers Axtel had to sell.”
The question, strictly considered, called for an answer by yes or no, and possibly it might be considered as indicating that the interrogator desired that the answer should be in the affirmative. But the question was only very slightly leading, if at all, and it seems clear to us that the defendant was not prejudiced by the character of the question as leading.
He further objects, however, that the question called for a conclusion. He insists that an a/rrangement is the result of what is said, and that, if any evidence upon the subject was admissible, the witness should have been asked for what was said, and not the result.
If the case were to turn upon whether there, was or was not an arrangement, — that is, if that were the ultimate fact to be found by the jury, there would be much force in the defendant’s objection. But that was not an ultimate fact. Any evidence of talk indicating Roberts’ purpose to go to Axtel’s the next morning to buy steers, though amounting to less than an arrangement, would have had substantially the same effect. It would have been a circumstance tending to show that Roberts’ journey that morning toward the defendant’s house was explainable upon a different theory from that of the defendant, which was that he was out seeking the deféndant’s life or injury.
*3532.__: dewheíadniissililo as nos gestie. It is further objected that what was said was at. least but hearsay, and inadmissible for that reason, if for no other. The talk, it is true, was not concurrent with the journey in point of time. But, to render declarations admissible as a part of the res gestes, it is not necessary that they should be precisely concurrent in point of time with the principal transaction. It is sufficient if they are near enough to clearly appear to be so spontaneous and impremeditated, and free from sinister motives, as to afford a reliable explanation of the principal transaction. People v. Vernon, 35 Cal., 49; Mitchell v. State, 41 Ga., 527; Handy v. Johnson, 5 Md., 450. The case at bar, we think, comes within'the rule. We see no error in allowing the question to be answered.
3. evidence: cross-exámiis not. ‘ II. One Orlando White, a nephew of the defendant, was examined as a witness in behalf of the state. Having testified that five or six weeks prior to Roberts’ death the defendant borrowed a revolver belonging to the witness’ brother, he was asked by defendant, on cross-examination, whether the defendant was not at that time on friendly terms with Roberts. The state objected to the question as not in cross-examination, and the objection was sustained.
In this we think that there was no error. It was not the object of the question to allow the witness to modify or explain his testimony given in chief, nor was it to elicit testimony which should have the effect to discredit the testimony which the witness had given in chief. The object was to prove an independent fact, not explanatory of, nor inconsistent with, the testimony given, but to render the fact testified to consistent with the defendant’s innocence; or, in other words, the object was to rebut the effect which the state intended to produce. It appears to us, therefore, that if the defendant desired to introduce such evidence it was more proper that he should-be required to do so in rebuttal.
*3544. CRIMIN'AX. law: murder: fnteentuill s cedent fin-" straction. *353III. The court instructed the jury that, “if the evidence *354shows that the defendant deliberately formed a design to take the life of Roberts, and sought a meeting with .... lnm' for the purpose of executing that design, and that meeting, and in pursuance of that design, inflicted upon Roberts the wound which caused his death, the crime, if he is responsible for the. act, is murder in the second degree.” The defendant assigns the giving of this instruction as error. It is contended by the defendant that there i^ no evidence that he sought a meeting with the design to take Roberts’ life.
We think that the evidence is very strong that the defendant took Roberts’ life by shooting him with a revolver. That he sought a meeting with that intent, the evidence is not so strong. Put if he took Roberts’ life with a revolver, then it would seem that he must have taken a revolver with him when he proceeded to the place of meeting. The case is quite different from what it would have been if Roberts had been killed with a club, or some weapon which might be supposed to have been picked up by the wayside. We think that there was some evidence that the defendant sought a meeting with ,the design of killing Roberts.
3..INSTRUC-•ciwgetobe 'geSier^rodt° IY. The court gave an instruction in these words: “Yon have evidence of the conduct, language and appearance of the accused during the time of the alleged killing, during which time it is alleged that he was insane. You are to consider all the facts which you find to be established by the evidence, and which relate to the con■duct, language and appearance of the defendant during that time; and you should consider them for the double purpose of .testing- the value of the opinions of such witnesses as have given opinions on the question of the defendant’s insanity, ’based upon such facts, and of determining whether the fact of insanity is established independent of such opinions.” The defendant assigns the giving of this instruction as error. The objection urged is that the jury was told, in substance, that if they found the defendant insane they must so find *355from facts independent of opinions. We hardly think that the instruction, even when taken by itself, is susceptible of such construction. But the jury was expressly told in another instruction that they were to determine what weight and credit should be given to the opinions of witnesses upon the question of insanity. The jury, we think,.could not have been misled in the way which the defendant claims. While we say this, we ought perhaps to say that we do not regard the question as to whether insanity was fully established by facts, independent of opinions, necessary to be considered. It is true that the facts, as the court said, were to be considered for a double purpose. But, in defining the double purpose, we should have been better pleased if the court had said that they might be considered for the purpose of testing the value of the opinions, and upon the question as to how far they tended to establish the fact of insanity independent of the opinions. We make this criticism the more .freely, because we have reached the conclusion that, for errors to be pointed out hereafter, the case must be reversed and remanded for another trial.
6. CRIMINA!, defeñséuof ñíoEttme:Piu-nt struction. Y. The instruction above set out, in our opinion, contains error. The jury was directed to consider the facts relating to the conduct, language and appearance of the de- , ° n 1 r *endant dunng the time of the alleged hilling. ®"ow> "while it is true that it was not material whether the defendant was insane at any other time if he was sane at that time, yet his conduct, language and appearance at other times were not to be excluded. There was no evidence whatever as to the conduct, language and appearance of defendant at the precise time when Roberts was killed. He was seen by others on that day, but the evidence of insanity pertains to other days. The evidence showed that he was insane in early life, and had not fully recovered when he came to western Iowa. There was evidence tending to show that from the time of his first insanity “any trouble” (to use the language of the witness) “would throw him off his *356balance.” Four relatives of the defendant testified to his changed mental condition from the time when his trouble with Roberts commenced, and they gave their opinion that he was insane. Two others, who do not appear to be relatives, testified to strange conduct of the defendant, and gave their opinion that he was insane. In addition to that, one physician testified that he made an examination of him, and regarded him as insane. While the court did not say that the jury should not consider the conduct, language and appearance of the defendant at times other than that of the alleged killing, the tendency of the instruction was to confine, by implication, the attention of the jury to that time. In this it appears to us that there was error.
_ -— = bur", instruction. VI. The court gave an instruction in these words: “The burden is on the defendant to establish by a preponderance of evidence that at the time of the killing of Roberts, if he did kill him, he was in such a state of insanity as not to be accountable for the act, and, if the evidence, goes no further than to show that such a state of mind was possible, or merely probable, it is not sufficient, hut it must go further, and overcome the presumption of sanity, and fairly satisfy you that he was not sane.” The giving of this instruction is assigned as error.
In our opinion the instruction cannot be sustained. If it was made probable to the jury that the defendant was so far insane as not to be accountable for his acts, we think that he should have been acquitted. Worcester defines probable as “having more evidence than the contrary.” Webster defines it as “having more evidence for than against.” We think that it was sufficient if the evidence of insanity preponderated. The idea of the court seems to have been that, as the presumption of sanity counts for something, it cannot be said to be overcome by a bare preponderance of evidence.
There is a course of reasoning which might, perhaps, seem to support this view. The difference between a bare preponderance of evidence and that which is next less might bo *357said to be infinitely small, and that what is infinitely small cannot be weighed or appreciated. But such considerations are too refined.
The rule as to the presumption of sanity has its practical application in imposing the burden of proof upon him who sets up insanity. This is all. The presumption is not to be weighed against any measurable amount of evidence.
The judgment, we think, must be reversed, and the cause remanded for another trial.
Ebveesed.