delivered the opinion of the court.
At the May term, 1863, of the St. Louis Criminal Court, the defendant was indicted for the murder of Catharine Moran, alleged to have been committed on the 20th of April, 1863. Upon the trial, the killing was admitted, and the plea of insanity set up by the prisoner’s counsel. Being convicted of murder in the first degree, a motion was made for a new trial, which was overruled, and the defendant now appeals to this court. The main ground relied upon by defendant’s coxmsel for a reversal of the judgment is the giving by the court below of the 2d, 3d and 13th instructions, which are as follows:
“ The law presumes every man who has arrived at the years of discretion to be sane, and capable of committing crime, until the contrary is shown; so that the State, after proving the unlawful act, need offer no evidence whatever of the sanity of the defendant, but may rest upon the legal presumption of sanity until the defendant shows the contrary.”
“ This defence of insanity is emphatically one which the defendant must make out, and it must be made out to the satisfaction of your minds; for if the evidence merely shows a case of doubt when the defendant might not be insane, this is not sufficient to authorize an acquittal on that ground only. If the evidence shows merely that the defendant might have been insane at the time of the commission of the act, but does not show satisfactorily to your minds that de*535fendant was insane at that time, this is not sufficient to warrant an acquittal.”
“ The jury are instructed that the onus or burden of proof of defendant’s insanity at the immediate time of the killing rests upon the defendant; and if the same be not established to the entire satisfaction of the jury, then they will find her guilty of murder in the first degree.”
The theory of the defence as urged in this court, and shown in the instructions asked and refused, is, that it is incumbent upon the State to show by positive and affirmative testimony, that the defendant was sane at the time of the killing ; and if the jury entertain a doubt as to the sanity or insanity of the prisoner at such time, the jury must give her the benefit of such doubt and acquit her.
It is true that it is incumbent upon the State to prove every fact necessary to constitute the crime of murder, which necessarily includes the sanity of the prisoner ; but the burden of proving such sanity is fully met by the presumption of law, that every person is of sound mind until the contrary appears; and he who undertakes to escape the penalty of the law by means of the plea of insanity, must rebut such presumption by proof entirely satisfactory to the jury. It is a defence to be made out by the prisoner, and by proof that will satisfy the jury, that he was incapable of distinguishing between right and wrong.
In Bellingham’s case, which was an indictment for murder, the defence set up was insanity, and Mansfield, C. J., in charging the jury told them: “that in order to support such a defence it ought to be proved by the most distinct and unquestionable evidence that the prisoner was incapable of judging between right and wrong; that, in fact, it must be proved beyond all doubt, that at the time he committed the atrocious act with which he stood charged, he did not consider that murder was a crime against the laws of God and nature, and that there was no other proof of insanity which would excuse murder or any other crime.”
*536This doctrine, founded in reason, has been fully recognized by the courts of this country.
The idea therefore advanced by the prisoner’s counsel, that it is incumbent upon the State to prove that the accused was sane at the time she committed the act, by evidence in addition to and independent of the presumption of law above referred to, is not sustained by authority.
The first instruction asked by defendant and refused, required the jury to acquit if they entertained a doubt as to the sanity or insanity of the defendant at the time of the commission of the homicide.
The doctrine of this instruction was repudiated by this court in the case of the State v. Huting, 21 Mo. 464, and very properly, for it virtually requires the jury to acquit if they entertain a doubt as to whether the defendant has succeeded in maintaining the defence. .The true rule in our opinion was laid down by C. J. Shaw, in Commonwealth v. Rogers, 7 Met. 500, which was a case of murder and the defence insanity. The jury received a very elaborate charge from the learned judge, and after being in consultation several hours, came into court and asked the opinion of the court upon the following question : “ Must the jury be satisfied beyond a doubt of the insanity of the prisoner to entitle him to an acquittal?” To which the chief justice replied : “ That if the preponderance of the evidence, was in favor of the insanity of the prisoner, the jury would be authorized to find him insane.”
The second, third and fourth instructions asked by defendant are embraced in those given by the court, and it was unnecessary therefore to give them again.
As no other ground of error has been suggested, the judgment of the Criminal Court will be affirmed;
the other judges concurring.