(dissenting).
I respectfully dissent. The question presented by this appeal is whether a jury may arbitrarily disregard overwhelming and uneontradicted expert opinion evidence that a defendant was insane when he committed the act for which he was tried, and find him sane beyond a reasonable doubt solely on the basis of eyewitness testimony of his behavior that afforded no direct evidence of his mental state and permitted only speculative inferences about it. I would hold that this conviction is without evidentiary support of a critical element of the offense charged and that it therefore offends the due process guarantee of the Fourteenth Amendment. See, e. g., Vachon v. New Hampshire, 414 U.S. 478, 94 S.Ct. 664, 38 L.Ed.2d 666 (1974).
The fact that the jury imposed sentences totaling only twelve years for the second degree murder of one innocent victim and the assault with intent to murder two other equally innocent persons demonstrates its lack of conviction that appellant, who had been a model citizen before the tragedy in the restaurant, knew the difference between right and wrong when he reacted to the unprovoked assault on his person.
I agree with the statement in the majority opinion that Tennessee has adopted the M’Naghten Rule for determining whether an accused was insane at the time he committed an offense. Spurlock v. State, 212 Tenn. 132, 368 S.W.2d 299 (1963). See also Phillips v. Neil, 452 F.2d 337, 342 (6th Cir. 1971), cert. denied, 409 U.S. 884, 93 S.Ct. 96, 34 L.Ed.2d 141 (1972), where we stated:
In Davis v. State, 161 Tenn. 23, 33, 34, 28 S.W.2d 993, 995 (1930), the Tennessee Supreme Court reviewed the *781test for the insanity defense in Tennessee:
“The capacity to know right from wrong, and to know that the particular act being committed is wrong, is the rule recognized in this state for testing criminal accountability.” Johnson v. State, supra [100 Tenn. 254, 45 S.W. 436].
This is a definite holding that an insane delusion does not excuse from crime in Tennessee, unless accompanied likewise by perceptional insanity. Irresistible impulse influenced by an insane delusion is therefore a defense not known to our law, as long as the faculty remains to distinguish between right and wrong. The general rule is that if a defendant has capacity and reason to enable him to distinguish the difference between right and wrong as to the particular act he is then doing, he is criminally responsible for such act. Some of our later cases are McElroy v. State, 146 Tenn. 442, 242 S.W. 883; Watson v. State, 133 Tenn. 198, 180 S.W. 168, and Bond v. State, 129 Tenn. 75, 165 S.W. 229.
sfc Jf! 4c $ He
The right and wrong test above mentioned was authoritatively laid down in McNaughten’s Case, 1 C. & K., 130, 8 Eng.Reprint, 718.
See also, Temples v. State, 183 Tenn. 531, 194 S.W.2d 332 (1946) and Gibbs v. State, 192 Tenn. 529, 241 S.W.2d 556 (1951).
And I agree that the Tennessee courts have stated that the words uttered and the acts performed by an accused at the time of an offense are the “best evidence” of his state of mind, Mullendore v. State, 183 Tenn. 53, 60, 191 S.W.2d 149, 151 (1945), and that expert testimony about an accused’s mental state should be received with caution. Sparkman v. State, 469 S.W.2d 692, 696 (Tenn. Cr.App.), cert. denied, Tennessee Supreme Court (1970).
At the same time, however, as we recognized in Phillips v. Neil, supra, at 342, in
[applying . . . [the M’Naghten Rule], Tennessee courts have held that once the defense has made out a prima facie case of insanity in the terms of the M’Naghten Rule the State must in order to overcome the defense offer evidence in rebuttal which demonstrates beyond a reasonable doubt the sanity of the defendant. Dove v. State, 50 Tenn. 348, 3 Heisk. 348 (1872); Stuart v. State, 60 Tenn. 178, 1 Baxt. 178 (1873); and King v. State, 91 Tenn. 617, 20 S.W. 169 (1892). See also, Jordan v. State, 124 Tenn. 81, 135 S.W. 327 (1910) and United States v. Horne, 304 F.Supp. 727 (D.C.1969).
Although in Phillips v. Neal, we reversed the conviction on another ground, we held not only that there was no evidence that proved the accused’s sanity beyond a reasonable doubt but also that there was none that even cast a substantial doubt on the accused’s prima facie case of insanity.
In the appeal before us, four psychiatrists,1 employees of the state and persons of unquestioned impartiality, testified in great detail and with great care that appellant was insane within the meaning of the M’Naghten Rule. Appellant thus indisputably established a prima facie case, and the prosecution was then required to present evidence that appellant knew the difference between right and wrong at the time of the homi*782cide. The state produced no such evidence.
Although evidence of the appellant’s actions and utterances during the melee might have some marginal relevance to his ability for deliberate performance, it is not, in this case, probative of his ability to tell right from wrong, and the presumption of sanity was rendered inoperative by appellant’s psychiatric evidence.
Although evidence of substantially contemporaneous utterances and acts may, in some cases, be relevant to the issue whether an accused knew right from wrong, the difficulty with the majority opinion is that it fails to distinguish the question of sanity from the question whether appellant acted purposefully, and not accidentally, and it fails to show how any of his actions or utterances during the period in question bear on the issue whether he could tell the difference between right and wrong.
Accordingly, although I am in general agreement with the recital of the historical events in the majority opinion and with its general statement of Tennessee law, I disagree with its conclusion that appellant was not deprived of a right protected by the Constitution.
Upon an examination of the record, I cannot find any evidence that Brooks was sane at the time he slashed the throats of the patrons at the cafe, and a conviction based on no evidence cannot stand. Accordingly, I would hold that his conviction therefore violated due process of law. See Vachon v. New Hampshire, supra; Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961); Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). I would reverse and grant the relief requested in the petition for habeas corpus.
. Four psychiatrists testified that Donald Brooks was insane and did not know right from wrong at the time of the offense. These psychiatrists were: Dr. Jacob N. Fidelholtz, director of maximum security unit, Central State Psychiatric Hospital; Dr. Hilary Linder, private psychiatric specialist at St. Joseph Hospital in Memphis, Tennessee; Dr. Harold M. West, associate professor in the Department of Psychiatry, University of Tennessee College of Medicine; and Dr. Parks Walker, staff psychiatrist at Tennessee Psychiatric Hospital. In addition to the testimony of these doctors, Dr. Fidelholtz’s diagnosis was unanimously concurred in by six qualified staff personnel at Central State Psychiatric Hospital in Nashville, Tennessee.