1. It is contended that the court erred in excluding the testimony of Dr. Ellenson. After the plaintiff in error had proved his case on the special issue of insanity and the state had put in its testimony in reply and rested,, the plaintiff in error called Dr. Ellenson and asked him. whether the plaintiff in error was sane or insane. This evidence was objected to on the ground that it was not rebuttal, and excluded, and the plaintiff in error claims this was prejudicial error. It appears from an examination of the evidence that this subject had been fully gone into by the plaintiff in error in his evidence in chief. Several witnesses were called on the question as to whether he was sane- or insane for some time before and up to the time of the trial. The evidence offered, therefore, was not strictly rebuttal (Schissler v. State, 122 Wis. 365, 99 N. W. 593), and the admission or exclusion of it rested largely in the discretion of the trial court, and, such discretion not having been abused, no reversible error was committed (Schissler v. State, supra; Jones, Evidence, §§ 809 — 811; McDermott v. C. & N. W. R. Co. 85 Wis. 102, 55 N. W. 119).
2. Error is assigned because the court refused to submit a form of verdict on the question of insanity to the effect that there was reasonable doubt of the sanity of plaintiff in error at the time of the commission of the alleged offense, and that he was not guilty of the offense charged against him for *629that reason. Counspl relies mainly upon tbe portion of sec. 4697, Stats. 1898, which, reads as follows:
“And if such jury shall find upon such special issue that such accused person was so insane, or that there is a reasonable doubt of his sanity at the time of the commission of such alleged offense, they shall also find him not guilty of such offense for that reason.”
Counsel cites no authority upon this point except the statute, which does not prescribe the form of verdict, the obvious meaning of it being that the question of insanity or reasonable doubt of sanity should be submitted to the jury in some form. The jury was carefully instructed on the question of burden of proof and of reasonable doubt as to the sanity of accused at time of commission of the alleged ■offense. Besides, it appears from the record that three forms -of verdict were submitted to the jury, one on behalf of the state, and two by the plaintiff in error; one of those submitted by plaintiff in error presenting the issue in effect the same as requested, and being sufficient in form. We therefore find no error in the submission of the question of insanity to the jury.
3. Error is assigned because the court denied application for inquisition as to sanity of plaintiff in error at the time •of trial. This application was made immediately after trial on the special issue of insanity, .and as soon as counsel for plaintiff in error had been informed that there was a probability that the accused was then insane and incapacitated to ■act for himself. The application was denied by the court on the ground that it came too late. Sec. 4700, Stats. 1898, provides:
“When any person is indicted or informed against for any ■offense if the court shall be informed, in any manner, that there is a probability that such accused person is, at the time of his trial, insane and thereby incapacitated to act for himself, the court shall, in a summary manner, make inquisition thereof by a jury or otherwise as it deems most proper. . .
*630This statute fixes ’no time for making suck application, nor can it be gathered from it that the legislature intended it should be made at any particular time. In tracing the history of the law from early times, as well as the judicial construction given legislation upon this subject, it seems obvious that the legislature intended by the broad language used that the application might be made at any time during the progress of the trial without particular formality. In the absence of statute to the contrary, application for inquisition to determine whether accused is insane at time of trial can be made by counsel orally. 2 Bishop, New Crim. Proc. § 666; Reg. v. Southey, 4 Fost. & F. 864; State v. Reed, 41 La. Ann. 581, 7 South. 132. Blackstone in his Commentaries, book 4, p. 24, says:
“Also if a man in his sound memory commits a capital offense, and before arraignment for it he becomes mad, he ought not to be arraigned for it, because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried, for how can he make his defense ? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed; for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.”
The most distinguished writers on criminal jurisprudence concur in these humane views, and agree that no person in a state of insanity should ever be put upon his trial for an alleged crime, or tried or made to suffer the judgment of the law, while insane. 1 Hale, P. C. 34; 4 Bl. Comm. 395; 1 Chitty, Crim. Law (ed. 1847) 760, 761; 1 Russell, Crimes (ed. 1845) 14; 4 Harg. State Trials, 205; 2 Bishop, New Crim. Proc. § 666. Our statute is an affirmance of these humane principles of the common law, and the reason upon which it rests makes manifest the intention of the legisla*631ture. It is therefore very clear that the legislature'in enacting this statute, broad and general as it is, intended to place a safeguard around the accused, so that at any time during the progress of the trial, when it appeared there was reasonable doubt as to his' sanity, the court should grant inquisition and determine in some way that issue. It was not necessary that the issue should be tried by a jury. It was within the power of the legislature to prescribe the mode of trial, and, the statute having left it to the court, it was entirely proper that the court should hear and determine the issue without the intervention of a jury. Nobles v. Georgia, 168 U. S. 398, 18 Sup. Ct. 87; Crocker v. State, 60 Wis. 553, 19 N. W. 435. The authorities appear to be quite uniform that at any stage of the proceedings in a criminal case, when the matter of the present insanity of the accused is properly brought to the attention of the court, the question should be determined before another step is taken in the trial. State v. Arnold, 12 Iowa, 479; Nobles v. Georgia, 168 U. S. 398, 18 Sup. Ct. 87; Crocker v. State, 60 Wis. 553, 19 N. W. 435; People v. Ah Ying, 42 Cal. 18; State v. Reed, 41 La. Ann. 581, 7 South. 132; State v. Peacock, 50 N. J. Law, 34, 11 Atl. 270; Taffe v. State, 23 Ark. 34; People v. Farrell, 31 Cal. 576; Youtsey v. U. S. 97 Fed. 937, 38 C. C. A. 562 ; Frith’s Case, 22 How. St. Tr. 311. We are therefore of the opinion that it was the duty of the court to grant inquisition and determine whether plaintiff in error was in a fit state to be tried.
It is claimed on the part of counsel for the state that the question of insanity at time of trial was, in effect, tried, because testimony was admitted concerning the sanity of plaintiff in error up to time of trial. This contention cannot be sustained. The application on the part of plaintiff in error for inquisition was made after the evidence was in on the special issue of insanity and as soon as counsel for the prisoner discovered that there was a probability accused was at *632tbe time of trial insane. Besides, it cannot be said tbat tbe issue of insanity at tbe time of trial was determined by tbe jury, because tbe verdict was confined specifically to insanity at tbe time of commission of tbe alleged offense. It would be an unsafe rule to adopt tbat a finding of sanity at a time long anterior to trial should determine tbe sanity of tbe accused at tbe time of trial.
It is also claimed on bebalf of counsel for tbe state.tbat to give tbe statute a construction which would permit tbe trial of sucb an issue at any stage of the proceeding would greatly obstruct and embarrass tbe administration of tbe criminal law. Since tbis matter could have been determined by tbe court without tbe intervention of a jury, and proceedings • on tbe main issue suspended pending sucb investigation, it would not seem tbat there are strong grounds for sucb claim. And, even though it should occasion delay and some embarrassment in tbe regular and orderly proceedings of tbe court, yet we do not think tbis is a sufficient answer when tbe rights .and liberties of a citizen are at stake. Delay and embarrassment in tbe ordinary proceedings of a criminal trial are not sufficient ground to deprive a citizen accused of crime of bis constitutional right to be beard in bis own defense. And if be be insane, he is incapacitated under all tbe authorities to be beard or to make a defense. We are convinced, therefore, tbat under tbis statute tbe court was bound to determine in some manner tbe question of tbe insanity of tbe plaintiff in error when a proper application was made for sucb purpose. It appears from tbe record tbat tbe insanity was discovered during tbe trial, and a proper application made as soon as possible, and not denied because it was insufficient, but because tbe court ruled it came too late.
It is further contended on bebalf of tbe state tbat tbe court did determine tbat plaintiff in error was sufficiently sane to be tried. We do not think tbis position tenable. It is true tbe court made sucb án intimation, but decided tbe applica*633tion for inquisition exclusively upon the ground that it came too late, placing the refusal solely upon that ground, and refrained from deciding the question of insanity at time of trial. We are therefore of the opinion that the plaintiff in ■error was entitled to have the question of his insanity at the time of trial determined, and that the denial of inquisition for that purpose was error.
4. Error is assigned because of the following instruction to the jury:
“You should not find the defendant insane on the ground .alone that he had been in the habit of telling exaggerated stories, or that he has manifested symptoms of melancholy, moroseness, mental exaltation or depression, or for any mere mental eccentricity or peculiarity.”
The question of insanity was for the-jury. It was an inference to be deduced from the facts and circumstances disclosed by the evidence, and the facts and circumstances from which the jury must necessarily have determined whether or not the accused was insane consisted in a large degree of ■exaggerated stories, symptoms of melancholy, moroseness, mental exaltation or depression, mental eccentricity, or peculiarity. In fact, such characteristics were the controlling elements from which the jury should determine the sanity ■or insanity of the accused. Such characteristics might have been so pronounced as to warrant the jury in finding the accused insane. The court told the jury that they could not find the accused insane because of the existence of such char•acteristics, and, in effect, took from them the principal question in the case. Counsel for the state contends that this instruction was cured because the court stated in the same ■connection that such acts and symptoms might be taken into consideration in determining the insanity, but we do not think this cured the error. It was clearly the province of the jury to determine whether or not such characteristics, •which in this case constituted the main evidence of insanity, *634were sufficient to warrant them in finding the accused insane. Counsel for the state reviews at length the entire charge, for the purpose, of showing that, taken as a whole, it fairly presented the question of insanity to the jury, but we are unable to see that the instruction complained of was not prejudicial to the accused. It told the jury plainly and unequivocally that the principal facts in evidence tending to show the insanity of the plaintiff in error were not sufficient for that purpose, and that they could not find him insane upon such evidence. Counsel also contends that such facts were not sufficient to warrant the jury in finding the accused insane under the decision of this court in Chafin Will Case, 32 Wis. 557. An examination of the Chafin Will Case will show that the testimony to prove insanity there was very different from the testimony in the case at bar. It was there-held that belief in spiritual mediums, faith in the statements of professed clairvoyants, belief in witchcraft, and professions of a sinless life were not evidence of insanity. Other peculiarities proved were in reality no stronger evidence of' insanity. Without pursuing the subject further, it may be said that the facts in the Ghafin Will Case were very different from the facts in the case at bar.
After a careful examination of the record we are satisfied that the evidence was ample to sustain a verdict of insanity. We must hold that the court erred in denying inquisition as to sanity of plaintiff in error at the time of trial, and in the-instruction complained of.
By the Court. — The judgment of the court below is reversed, and the cause remanded for a new trial. The warden of the state prison at Waupun is directed to deliver the-plaintiff in error to the sheriff of Chippewa county, to be held in custody until discharged according to law.