OPINION UPON REHEARING.
Beck, J.At a former term a rehearing was granted in this case, upon, which it has been again argued and submitted.
8. pkacmce oourt'fright hearhfgin ie~ criminal case. I. Counsel for defendant .moved to strike the petition for rehearing from the files, upon the ground that this court has 'no authority to entertain a petition by the state f°r a rehearing in a criminal case. It is insisted that no such authority is conferred by statute, and , . , , » ■, cannot exist unless so conferred. There is no provision of the Code expressly declaring that rehearings may be had in criminal cases. The sections relating to the subject, 3201, 3202, chapter 2, title XIX, are general in their language, and do not specify the classes of cases to which they are applicable. They are found in á chapter regulating appellate proceedings in the supreme court. In the chapter (35, title XXY) relating to appeals to the supreme court in criminal cases, there is no provision upon the subject of rehearings. Counsel for defendant insist that the provisions first referred to relate exclusively to appeals in civil cases, and that therefore there is no statute authorizing rehearing in criminal cases. We think differently. The chapters in which the sections first cited are found regulate the practice generally of this court. Many provisions are found in this chapter in regard to matters of practice, some of which affect the rights of the parties, and all are intended to promote justice, to which there are no corresponding provisions in the chapter relating to appeals in criminal cases. Of this character are *359sections 3200, 3203, 3204, 3205, 3206, 3208 and 3209. Unless these provisions are regarded as applicable to criminal cases, persons convicted would suffer inconvenience and hardship, and possibly injustice, upon the trial of their appeals in this court. The observation is especially true in reference to the matter of rehearings. Unless a rehearing is provided for by sections 3201-2 in a criminal case, there is no statute authorizing it. It could be granted neither to the state nor to the defendant. ' Surely, the courts would not adopt a construction of the statute which would be liable to result in defeating justice, by preventing one accused of crime from having an opportunity to fully present his case to the appellate court upon rehearing. It cannot be possible that the legislature intended to deny such an opportunity in criminal cases, while securing it in civil cases.
While this question has not' been decided by this court, never having been raised before, we have entertained petitions for rehearings filed by the state, and, in one case, upon a reargument, reached a conclusion different from the decision first announced. See State v. White, 45 Iowa, 325; s. c., 41 Id., 316; State v. Brandt, 41 Iowa, 593.
It is our opinion that the motion of defendant to strike the petition for rehearing from the files ought to be overruled.
SAME as NO. 6, ante. II. Upon a careful re-examination of the case, wé reach the conclusion that the opinion of the majority of this court, originally filed in this case, is correct. We will ° •> 7 proceed briefly to state some reasons in support of the opinion, in addition to those presented in it.
The judgment of the district court was reversed upon conclusions reached in the fifth and sixth points of the opinion, holding that there is error in two instructions given to the jury. They need not be here repeated..
The instruction discussed in the fifth point limits the consideration of the appearance, conduct and language of the defendant to the time of the killing. It is admitted by the instruction that' evidence of conduct, appearance and lan*360guage of the accused may be properly considered upon the issue of defendant’s sanity, but it declares that such evidence must be confined to conduct, appearance and language “during the time of the alleged killing.” This instruction is so obviously erroneous that 'little need be said about it. If defendant had been shown to be insane twenty-four hours, oían hour, before the killing, and no evidence upon the issue of his sanity-related to his mental condition at the very time of killing, under this instruction he must be convicted. Yet the rule of the law is that, when a condition is shown to exist, it will be presumed to continue until the contrary is shown by evidence or presumptions arising upon the facts of the case. This is a rule of universal application, and it is not possible to exbept the case of insanity from it. A man charged with a homicide is proved to be insane by his conduct, language and appearance at a stated time. He is seen no more for twenty-four hours, or for one hour, and within that time he has, in the view of no witness, taken the life of another. Under the rule of the instruction, evidence of his insanity an hour before the homicide is excluded, and the evidence of conduct, language and appearance is restricted to a time when no man saw him. The supposed ease, though extreme-, is strictly within the rule of the instruction, and serves to emphasize an expression of the error of the instruction.
This court held correct an instruction directing the jury to consider “the facts connected with defendant’s conduct, language and appearance, etc., preceding the alleged homicide.” State v. Mewherter, 46 Iowa, 88.
It is obvious that the issue of sanity must be tried upon evidence of the condition of the- mind before the immediate time of the alleged crime. The conduct, language and appearance of the accused, being manifestations of his mental condition, may be shown in evidence. Of course, their force, as proof of sanity or insanity, diminishes as-they recede in time from the moment of the crime, in harmony with pre*361sumption, arising from known facts, or the observation and experiencé of men.
as N0 7j ante. III. We will now proceed to consider briefly the instruction discussed in the sixth point of the opinion. It announces the doctrine that, if the evidence shows that the jnsanity of defendant was probable, it will not overcome the presumption of sanity, and that more evidence than this is required to satisfy the minds of the jury that defendant was insane.
It is conceded that the defendant was presumed by the law to be sane, and' that, therefore, the burden of proving insanity rested upon him.
All conclusions as to facts are based upon evidence; and men are often required to form conclusions, and act upon them, when the mind is in a condition of doubt and uncertainty. But men in all affairs, when they must act upon evidence, W'eigh the evidence, and are controlled by the greatest quantity, though doubting and uncertain. If there be no evidence, they can form no conclusion, and, if required to act, they are controlled by mere chance. If the evidence is slight, barely enough to incline the mind, they regard the fact toward which the proof points as probable. Men act upon probabilities, and in doing so they understand that there is more evidence in support of their conclusion than against it. When we say a fact is probable, we mean that we have more evidence in support of it than to the contrary. This is the meaning of the word in its common use.
In the law, a thing is presumed to exist, or not to exist, according as the burden of proof rests upon the side which affirms it. If there is no proof in a case, the issue is decided against the party holding the burden of proof. In this case defendant alleged his insanity, and he was, therefore, required to prove it. In the absence of proof of insanity the law regards him as sane. This is what is meant by presumption of sanity. Now, it is obvious that the measure of proof which will incline the mind toward belief of the insane condition will *362overcome tlxe presumption of sanity. It is not true that the legal presumption of sanity must be balanced by some measure of proof of insanity before other evidence of insanity can be put in the scale; that this presumption is to be regarded as evidence to be overcome by proof.
The presumption in question simply supposes an equilibrium of proof, and the party holding the affirmative is not entitled to judgment unless he places evidence in the scale which will turn it. If the party upon whom the burden rests gives evidence which creates a probability — that is, introduces more evidence than the other party, he overcomes the presumption resting against him, referred to in the instruction, and is entitled to judgment.
We conclude that the instruction in question is erroneous, in so far as it holds that evidence which authorized the conclusion that insanity was probable is not sufficient to overcome the presumption of sanity.
We adhere to the conclusions heretofore announced, and direct that the former order reversing the judgment of the district court be permitted to stand.
Reversed.
Rotiirock, Ch. J., and Seevers, justice, adhere to their former dissenting opinion, but concur in the first point of the opinion upon rehearing.