dissenting. — I. I do not believe the instruction set out in the fourth paragraph of the foregoing opinion is erroneous. The material inquiry was whether the defendant was insane at the time the homicide was committed. His acts and conduct at that time, therefore, were material as bearing on this question. It is immaterial whether the defendant was insane prior to the homicide, if he was not insane then. The acts and conduct of the defendant prior to the homicide, bearing on the question of his insanity at. the time of the homicide, are not excluded from the consideration of the jury, unless it can be said to have been done by implication. But, if this is so, the instruction is not, therefore, erroneous. But in my opinion no such implication can be drawn.
II. This court has held in more than one adjudged case that where the defense is insanity the burden is on the defendant to establish such defense by a preponderance of the evidence, and this, and no more, is the thought of the instruction set out in the sixth paragraph of the foregoing opinion. By the use of the word “probable,” the court meant this, and no more, and so the jury, I think, understood the instruction. It seems to me that the reasoning of the foregoing opinion upon the points above mentioned is refined, technical, and without substantial merit. The court plainly stated that insanity must be established by a preponderance of the evidence, and the jury could not have understood that any other rule was announced *358in the instruction. I think it is unfair to the court, and not required by the case, to resort to dictionaries for a definition of the word “probable,” when the connection in which the word is used is taken into consideration. When the instruction as a whole is considered, I am unable to conclude that the word in question as used was prejudicial.
Mr. Justice Rothrock concurs in this dissent.