The opinion of the court was delivered by
Miller, J.The accused, indicted for murder, convicted and sentenced for manslaughter, takes this appeal.
The accused relies on a number of exceptions to the charge of the judge. But the question sought to be raised in nearly all ig as to the correctness of the charge in respect to the defence of insanity, and the refusal of the instruction on that subject requested on behalf of the accused. On this defence of insanity the instruction in part was:
“ Every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crime, until the contrary be satisfactorily proved. When insanity is set up as a defence for crime, it must be proved as a substantive fact by the party alleging it, on whom lies the burden of proof. The degree of proof must be by a preponderance of evidence. This does not mean a preponderance of witnesses, but it means that, taking all the evidence into consideration, the weight and effect of it is to satisfy your minds that at the time of the commission of the act the prisoner was insane. The presumption of sanity must be overthrown, and this presumption exists with as much force as the presumption of innocence.
“As the law presumes a man to be innocent until he Is proven guilty, if there is a reasonable doubt as to his guilt, this degree of proof as to guilt does not overcome the presumption of innocence, and he should be acquitted. The presumption of sanity is a logical parallel to the above rule. Men are presumed to be sane until they are proven insane. If there is a reasonable doubt as to their sanity, this degree of proof as to insanity does not overthrow the the presumption of sanity, and the jury should find him sane. These two presumptions of law as to ‘ innocence ’ and sanity ’ stand upon the same footing. The burden is upon the State to overcome the presumption of innocence, while the burden is upon *255the defendant to overcome the presumption of sanity when insanity is set up as a defence, and both presumptions should be overcome beyond reasonable doubt.” To this part of the charge the defendant excepted as ambiguous, contradictory and not a correct exposition of law. It is urged on us that this portion of the charge placed before the jury for their guidance two different rules of proof; one that the preponderance of testimony sufficed, and the other that proof beyond a reasonable doubt was required to establish insanity as a defence. Our decision is controlled by a more important factor.
The objection in varied forms presented by the other bills is, in effect, that the charge is erroneous in its requirement of the degree of proof requisite to support the defence of insanity. The charge recognizes the distinction between the preponderance of proof and that which excludes all reasonable doubt, and instructs that the burden is on the accused to prove beyond all reasonable doubt he was not sane at the time of the commission of the act charged. The charge follows that sustained by our predecessors in State vs. De Rance, 34 An. 186, and in State vs. Burns, 25 An. 302, and State vs. Coleman, 27 An. 691.
Without the sanity of the accused there can be no guilt. Humanity and the law alike concur in this and utterly exclude punishment for crime when there is no moral responsibility of the accused. It is familiar that guilt must be proved beyond a reasonable doubt before punishment can be inflicted. Yet the charge in this case places on the accused the burden of disproving one of the constituents of guilt, and exacts of him the highest order of proof known to the law. In both aspects the proposition has been controverted by text writers and decisions. The preponderance of proof is recognized as that of a character to satisfy the mind, though it be not free from reasonable doubt. This preponderating proof is enough in civil cases to authorize a finding in favor of the party. The terms are of constant use in the administration of the criminal law. The charge in this case implies, if it does not express, that though there may be a preponderance of testimony before the jury to show that the accused was insane at the time of the act, yet they may convict. It is not easy to conceive that with this preponderating proof they can deem guilt established beyond a reasonable doubt, the prerequisite of any conviction. Can, then, *256this charge be sustained which exacts punishment with preponderating proof producing not only a reasonable doubt of guilt, but pre - ponderating to carry the conclusion that no guilt can exist, because of the absence of that moral accountability, the basis of all punishment for crime. Between hanging the maniac or bringing to the scaffold one whose insanity is established by a preponderance of testimony before a jury that pronounces him guilty, is a difference in degree, not of principle. A conviction when insanity is thus proved this charge sanctions.
If we turn to the authority of text-books and decisions it must seem difficult to maintain the charge, conceding all due weight to the decisions of our predecessors, and types of that class in some of the decisions of the courts of other States. In State vs. Spencer, 1 Zabriskie (N. J.), 196, the court instructed, if in weighing testimony of insanity against that of sanity the scales are balanced or so nearly poised as to leave a reasonable doubt of insanity, the accused was to be deemed sane. This decision, that sustains punishment when guilt is ascertained by the balanced or nearly poised scale, is in marked contrast with the rule that exacts proof of guilt beyond all reasonable doubt. In one of the text-books there is the comment, the decision has been departed from in the New Jersey courts, 1 Bishop, Criminal Procedure, Sec. —. The case of Regina vs. Layton, 4 Cox Criminal Cases, is cited by the State as supporting Che charge under consideration. But as we gather that decision from the report, the instruction was that sanity was to be presumed till the contrary was proved, and the question for the jury was whether the accused had proved to their satisfaction he was not of sound mind. There was no requirement of proof beyond that point — i. e., the satisfaction of the jury. All the decisions tending to exact from the accused a higher degree of proof have had our attention. On the other hand the text-books and the weight of the decisions while affirming that the burden of proof of insanity is on the accused, maintain that the proof suffices that establishes insanity to the satisfaction of the jury. In 1 Waterman’s Archbold there is an array of authority; with others the case of McNaughten is cited, much discussed in the House of Lords, and led to questions propounded to the judges as to the terms in which the question of insanity should be submitted to the jury. The answer was that the accused was to be presumed sane until the contrary was proved to the satisfaction of *257the jury. That charge is brief, plain and easily understood. It is commended in all the text-books. It exacts no greater degree of. proof than that required to satisfy the mind and precludes any acquittal for insanity when the proof does not convince the jury on the point of inquiry. Other authority arrayed by Mr. Archbold is to the effect that the testimony of insanity must be sufficient to overrule the presumption of sanity and satisfy the jury the accused was not sane, or as put in another form, to sustain the defence the evidence must convince the jury that when the act was done the prisoner was not conscious he was committing crime. 1 Archbold, pp. 37, 38 et seq. Other decisions have qualified the proof to be administered by the prisoner as a preponderance of the whole evidence that he was sane when he committed the act. 7 Gray, p.583; 7 Metcalf, 500, 506. The charge sanctioned in 1 Curtis, C. C., p. 1, was that the burden resting on the accused to prove insanity the whole evidence must satisfy the jury the prisoner was insane, otherwise he should not be acquitted. In Wharton’s Criminal Law the text is the defence of insanity must.be proved by the accused as an independent fact, and he alludes to the Spencer case and to decisions on the other hand, maintaining the sufficiency of preponderating proof of insanity. In the later edition of Wharton this preponderating proof is stated to be all that is required. Wharton’s Criminal Law, Sec. 711 and notes; 10th Edition, See. 62 and notes. It is Mr. Bishop’s view, reviewing all the authorities, .that it is never incumbent on the State to give affirmative evidence of the sanity of the accused, but if denied by proof administered by him the jury alone with the presumption of sanity must consider all the evidence, and if then they entertain a reasonable doubt of whether the accused did the act in a sane state of mind, they are to acquit, otherwise they are to convict. 1 Bishop Criminal Procedure, Sec. 534.
The same view substantially has been announced quite recently by the Supreme Court of the United States and is thus expressed in the head-note: no man is to be deprived of his life under the forms of law unless the jurors who are to try him are able on their consciences to say that the evidence before them, whether adduced on his behalf or by the State, is sufficient to show beyond a reasonable •doubt every essential of the crime, and mental competency to distinguish between right and wrong was, of course, recognized as one *258of the constituents of the crime. United States vs. Davis, 160 U. S., p. 469. In the light of principle and authority we can not assent, to the proposition affirmed by this charge that with preponderating-testimony of the insanity of the accused they may convict on the-theory that a higher order of proof is required. In this view the sentence must be reversed.
In view of the new trial we deem it proper to say with respect to> other objections reserved by accused that the charge in a criminal case should be restricted to the questions fairly arising on the testimony. In our view the explanation of insanity, whether it be termed temporary or epileptic in its character, was sufficient to meet the inquiry arising on the testimony, though an addition as to that form produced by the absence of will power would be appropriate. Wharton and Stille Medical Jurisprudence, p. 38. We think it well to add, too, that on the issue of insanity testimony of the conduct, of the accused before and after the act is proper to go to the jury under proper instructions. 2 Greenleaf on Evidence, Sec. 371.
While the misuse or abuse of this defence of sanity can not affect, the legal principle on which the defence is allowed, we are deeply impressed with the importance of guarding against the failure of justice arising from the frequent interposition without foundation of' this defence of insanity characterized in one of the decisions as the last resort of desperate criminals. We have already suggested the charge should be restricted within the scope of the questions fairly arising on the testimony and not extend to forms, real or supposed, of mental disorder, not the subjects of inquiry under the testimony laid before the jury. The charge should be clear and avoid unnecessary qualifications. We think Professor Greenleaf’s summary of the essentials of the instruction as to the burden and degree of proof required on the defence of insanity meets substantial requirements. 2 Greenleaf, Sec. 373. We think it will suffice if the jury are told in effect that the burden of proof is on the accused to establish by clear and convincing proof the insanity he urges as a defence; that the presumption of sanity is to be taken into consideration and exercise its full influence along with all the testimony before them, whether produced by the accused or by the State; and if on the consideration of the whole testimony, giving due weight to the presumption of sanity, they are satisfied the accused was not of sane mind when the act charged was committed, they are to acquit, but if not thus satis*259fled they are to hold the accused sane and responsible. With clear instruction as to the presumption of sanity; the burden of disproving it; and that in order to acquit on the ground of insanity the jury must be satisfied of that insanity by clear and convincing proof, it seems to us there should be no convictions of the insane, nor misapprehension by the jury of their duty to hold the accused sane and responsible when not satisfied of the insanity urged in his defence.
For the reasons given in this opinion, it is now ordered, adjudged and decreed that the sentence of the accused be annulled and set aside; that he be again put on trial on the indictment and be held in custody to abide the verdict on the new trial.