concurring.
I concur in the opinion of the Court. I disagree, however, with the reasoning therein for the following reasons:
As indicated in the opinion of the majority, there is a fundamental discrepancy in the jurisprudential view in relation to the rule of burden of proof which should govern those cases in which the defendant relies on the defense of insanity.
*66The rule — which had its roots in England — prevailing in California as well as in some twenty states of the American Union is that, where the prosecution has proved the facts on which its information is based, it is incumbent on the defendant, if he relies on the defense of insanity, to offer evidence to prove, by a preponderance of the evidence, that defense. Leland v. Oregon, 343 U.S. 790, 798, 96 L. E. 1302; People v. Willard (Cal.), 89 Pac. 124; People v. Chamberlain (Cal.), 60 P. 2d 299; People v. French (Cal.), 87 P. 2d 1014, 1021; People v. Sloper (Cal.), 244 Pac. 362; People v. Williams (Cal.), 194 Pac. 1019; People v. Hickman (Cal.), 268 Pac. 909; Weihofen, Mental Disorder as a Criminal Defense, p. 212. The prosecution may or may not then present evidence in rebuttal (see People v. Chamberlain, supra), but in either case the trier of facts — the jury or the court — is required to determine whether the defendant has reasonably proved that he was insane at the time of the commission of the act. The trier will then determine, by a preponderance of the evidence,1 whether such defense has been established.
The rule is based on the fact that the sanity of the accused is not an ingredient of crime. It is a condition precedent of all intelligent action. It is a quality of the actor, not an element of the act. State v. Quigley, 26 R.I. 263, 68 Atl. 905.2 It assumes that sanity is the normal state of the human *67mind and that only a person who commits an act while suffering from mental derangement is excused from criminal responsibility, wherefore it is incumbent on the latter to prove that state and thus show that the ingredients of the crime could not exist in his mind at the time of its commission.
The other rule, the federal rule —Davis v. United States, 160 U.S. 469, 40 L. Ed. 499—is to the effect that since the prosecution is required to prove the defendant’s guilt beyond a reasonable doubt, it is also incumbent on the prosecution to prove the defendant’s capacity to commit the crime; and that although the prosecution may, when presenting its case, rely on the presumption of sanity, such presumption is destroyed as soon as the defense presents evidence of insanity, the prosecution then being called upon to comply with *68its duty of presenting evidence of sanity. According to that rule, the trier is then required to determine whether the prosecution has proved the defendant’s mental soundness beyond a reasonable doubt. If the prosecution offers no evidence of sanity, it must still determine, taking into account the presumption of sanity as well as the defendant’s evidence of insanity, whether he was sane, beyond a reasonable doubt, and if there is a doubt, the trier should give him the benefit of the same. See, also, Wigmore On Evidence, Vol. IX, 3d ed., § 2501, p. 359 et seq., and 1955 Supp., pp. 117-118.
I believe that the wisest rule and the one which conforms more to our law is the first one stated. According to that rule, it is incumbent on the defendant to prove the defense of insanity by a preponderance of the evidence. Preponderance of evidence is such evidence as, when weighed with that opposed to it, has more convincing force, and from which it results that the greatest probability of truth lies therein. Caljic, § 801, p. 630; Cf. Irizarry v. Trujillo, 16 P.R.R. 19.3 Although it has been held that preponderance of evidence is not a legal phrase and, hence, that the failure of the court to define the same in its instructions to the jury is not prejudicial error —People v. Williams, supra; Maryland Casualty Co. v. Boverie (Texas), 37 S. W. 2d 310, 312; Jones v. Durham (Mo.) 67 S. W. 876, 977—my opinion is that this phrase ought to be defined in the instructions to the jury to enable the trier of fact to have an idea, more or less accurate, of the scope and meaning of the same.
Notwithstanding the fact that The People produced no direct evidence to outweigh the testimony of the medical experts offered by the defense tending to show the defendant’s insanity, the presumption of sanity mentioned in § 12 *69of the Penal Code 4 is so strong that, if it is not overcome, it is considered sufficient to show that the defendant was sane at the time of committing the crime. Weihofen, op. cit., p. 214 et seq. Cf. 16 So. Cal. L. Rev. 245. In Puerto Rico such presumption, like any other presumption, constitutes evidence. It is expressly provided by § § 96, 102, and 162 of the Law of Evidence (§ § 458, 464, and 524 of the Code of Civil Procedure of Puerto Rico, 1933 ed.), 32 L.P.R.A. § § 1881, 1887, and 1679—Cf. Acevedo v. Estate of Caballero, 9 P.R.R. 382, 387. Sections 96, 102, and 162, supra, provide in their pertinent part:
“Sec. 96. — Indirect evidence is of two kinds:
“1. Inferences; and
“2. Presumptions.
“Sec. 102. — All other presumptions are satisfactory, if un-contradicted. They are denominated disputable presumptions and may be controverted by other evidence . . .
“Sec. 162. . . . The court or jury is not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in its mind, against a less number or against a presumption or other evidence satisfying its mind.” (Italics ours.)
This has also been the holding of the Supreme Court of California in numerous cases in construing § § 1957, 1963, and 2061 of the Code of Civil Procedure of that state, which are identical with ours supra. People v. Chamberlain, supra; Smellie v. Southern Pac. Co., 299 Pac. 529; Mar Shee v. Maryland Assur. Corp., 210 Pac. 269, and cases cited therein.5
*70The testimony of the experts on the defendant’s mental unsoundness is to be weighed by the jury on the basis of' this presumption, such testimony not being binding upon' them. People v. Dones, 56 P.R.R. 201, 211; People v. Willard, supra; People v. Denningham (Cal.), 185 P. 2d 614; People v. Gilbert (Cal.), 240 Pac. 1001; People v. Darling (Cal.), 237 P. 2d 691. The test adopted in cases of this nature has always been whether the defendant was capable of distinguishing right from wrong at the time of' committing the crime. Leland v. Oregon, supra; People v. Sloper, supra.6
In its exhaustive instructions to the jury the court stated,, as has been noted, among other things, that: “The facts, alleged by the prosecuting attorney must be proved beyond a reasonable doubt; those alleged by the defense in this-, specific case must be proved by a preponderance of the evidence; . . . The defendant has alleged that, although he did kill the person mentioned in the information and attempted to take the life of another human being, he is not guilty, alleging that he was mentally incapacitated when he committed those acts; in other words, that he is innocent since he was unable to distinguish right from wrong when he committed those acts, and was insane. The law exempts from criminal responsibility the insane, maniacs, lunatics,. *71and idiots, a mentally diseased person who does not realize what he is doing when committing a criminal act, who is 'incapable of telling whether such act is right or wrong. The law exempts him from responsibility, and it is therefore •the jury’s duty to find the defendant not guilty if in its .judgment he was in those conditions at the time of committing these acts. In other words, all persons are capable ■of committing crimes, except idiots, lunatics, or insane persons. The gentlemen of the jury shall determine whether those circumstances have been proved which show that the ■defendant was insane at the time of perpetrating the crime; that he was insane at the time of committing those acts . . . It is a defense which is used at times, without justification, in cases in which the evidence offered is so complete as to render futile the presentation of any evidence or other sort of defense; but it should not be considered ingenious and deceitful”; and “it [insanity] is a legitimate defense when it is 'proved beyond any doubt, by a preponderance of the evidence, that the defendant was affected by a mental disease which incapacitated him at the time of committing the acts for which he is on trial.” (Italics ours.)
After the court gave its instructions, the defense stated: “An exception to each and all of the instructions, especially the instructions which involve the degrees of the crime and the separation of verdicts in relation to the acts charged.” At no time did the defense request specific instructions on a particular point or the correction of the instructions already given. This Court has repeatedly held that a general exception to the court’s charge does not save any alleged error on appeal, and that it is necessary to take specific exceptions.7 See People v. Rodríguez, 70 P.R.R. 21; People *72v. Piazza, 60 P.R.R. 561, 570; People v. Mediavilla, 54 P.R.R.. 538; People v. Cardona, 50 P.R.R. 104, 108; People v.. Quirós, 48 P.R.R. 939, 942; People v. Mercado, 46 P.R.R. 147, 152; People v. Varela, 42 P.R.R. 794, and the per curiam opinion rendered in People v. Ayala Martínez on December 27, 1954, and People v. Vélez, 77 P.R.R. 775, as well as in United States v. Daily, 139 F. 2d 7, 9; Du Vall v. United States, 82 F. 2d 382, 383 (certiorari, denied in 298 U. S. 667); Huffman v. State, 259 S. W. 2d 509, 510; Garver v. State, 258 S. W. 2d 812, 816; Commonwealth v. Ransom, 82 A. 2d 547, 551. It has also held time and again that, notwithstanding the fact that the defendant took no specific exceptions to the instructions given to the' jury, the Court may notice, on appeal, fundamental errors committed by the trial court when giving the same. People v. Rodríguez, supra; People v. Belardo, 50 P.R.R. 491, 497; People v. Cardona, 50 P.R.R. 104; People v. Hernández, 49 P.R.R. 406; People v. Benítez, 47 P.R.R. 74; People v. Maldonado, 45 P.R.R. 405; People v. Ramírez de Arellano, 25 P.R.R. 243.8 Such action is in accord with the Act of May 30, 1904 (Spec. Sess. Laws, p. 10 (1905)), which is inserted at the end of § 362 of the Code of Criminal Procedure, 1935 ed., § 1 of which reads thus:
“Whenever it appears from the record in any criminal case upon appeal in the Supreme Court, that any requirement of the law has been disregarded by the trial court, the judgment shall not be reversed, unless the error appearing from the record was calculated to injure the rights of either of the parties, and was duly excepted to in the trial court; Provided, however, That the appellate court may take cognizance of fundamental errors, appearing in the record, although not excepted to, and render such judgment thereon as the facts and the law may require.” (Italics ours.)
The trial court, as has been seen, originally gave án instruction that “the facts alleged by the defense in this. *73■specific case must be proved by a preponderance of the evidence.” If it had said nothing further on the manner of proving the defense of insanity, there would be no objection to the instruction. However, thereafter the court stated that the defense of insanity “is a legitimate defense when it is proved beyond any doubt by a preponderance of the evidence. The addition of the words “beyond any doubt” rendered the instruction altogether wrong, inasmuch as it controverted the concept correctly stated above on preponderance •of evidence. 14 Cal. Jur. 2d, p. 255. "Since it was the last instruction given on this point, and it being still fresh in the mind of the jurors, it is likely that it led them to believe that the defendant was actually required to prove the defense •of insanity “beyond any doubt.” Although the defendant merely took general exceptions to the instructions, and although I disagree with the reasoning of the opinion of the Court regarding the manner in which the defense of insanity must be proved, the error thus committed is so fundamental that I agree that the proper action is to reverse the judgments appealed from and to order a new trial.
Oregon departs from this rule, it being the only state of the American Union that requires the accused to establish the defense of insanity beyond a reasonable doubt. Leland v. Oregon, 343 U. S. 790, 798.
In State v. Quigley, 26 R.I. 263, 58 Atl. 905, it is stated in the course of the opinion:
“ . . . The English rule implies that the question of guilt and the question of insanity raise two distinct issues, and that, while both may be involved in the final verdict, the burden of proof upon each issue lies upon different parties. The most complete and forcible statement of the argument in support of this rule which we have found is contained in the opinion of Judge Danforth in State v. Lawrence, 57 Me. 574, 581. The American rule, so called, holds that in a criminal case there is but one issue, and that the burden throughout is upon the prosecution to prove not only the criminal *67act, bat the capacity of the accused to commit it beyond a reasonable doubt.
“We think the first of these positions is the more logical. Sanity is not an ingredient of crime. It is a condition precedent of all intelligent aetion, as well benevolent as nefarious. It is a quality of the actor, not an element of the act. ■ It is incumbent upon the prosecution to show the commission of the act, and from this showing and its circumstances to sustain the inferences of malice and such emotions as the particular crime may include. But sanity is not one of these inferences. It is a pre-existing fact which may be taken for granted as implied by law and general experience . . .
“It is argued that criminal intent, malice, and premeditation are facts to be proven by the prosecutor; that these cannot exist in an insane mind; hence sanity must be proved by the prosecutor. But these are facts of mental condition and action, and they can only be proved by inference from material facts, circumstances, and acts. It is incumbent, therefore, upon the prosecution to prove such material facts, circumstances, and acts as would compel the inference of guilt in a sane person, and this is the limit of his burden. In murder the prosecution must establish the act, and, either by inference or additional evidence, malice and premeditation. If these ingredients of the crime cannot exist without sanity, sanity is presumed. All the ingredients of the crime must be proved, and as to these we agree the burden never shifts; but as to sanity it never attaches to the prosecutor. The plea of not guilty by itself does not put the sanity of the accused in issue. He must raise the question otherwise, as all agree, if. not by special plea at least by introducing evidence, and this is confession and avoidance.”
For additional definitions of the phrase “preponderance of evidence,” see 33 Words & Phrases, perm, ed., pp. 389, 392 et seq.
Section 12 of the Penal Code, 83 L.P.R.A. § 33, provides in part that “all persons are of sound mind who are neither idiots, nor lunatics nor affected with insanity.”
In People v. Chamberlain, 60 P. 2d 299, 300, the Supreme Court of California stated as follows:
“No witness testified that the defendant was sane when he committed the crime. The prosecution rested without introducing any testimony to rebut the case of defendant on the issue of sanity. It relied entirely on the presumption of law that all men are presumed *70to be sane, and the evidence, if any, indicating the sanity of defendant, adduced on cross-examination from witnesses called by the-defense, including the defendant who testified in his own behalf.
“ . . . that a presumption is evidence and may in certain cases, outweigh positive evidence adduced against it has long been the settled law of this state.”
The case of Quiñones v. Quiñones, 42 P.R.R. 297, 302, should, in my judgment, be expressly overruled insofar as it may be interpreted! as holding otherwise on the question of presumptions.
Appellant also maintains that the trial court “erred in instructing-the jury that there must exist a lack of knowledge that an act is wrong in a moral sense . . .” In my opinion, he is not in the right. Moral insanity -does not excuse commission of crime. People v. Gilbert, supra. People v. McCarthy, 46 Pac. 1073.
Ii the specific exceptions to the instructions had been taken, and if the defendant had given the court an opportunity to make amends, the presumption is that the erroneous instruction last mentioned would have been clarified and corrected. Cf. Asgill v. United States, 60 F. 2d 776, 780; United States v. Vasilaky, 168 F. 2d 191.
See, also, Fisher v. United States, 328 U. S. 463, 90 L. Ed. 1382, 1386.