(specially concurring).
I concur with the majority on all of the issues, and write specially to address the first argument raised by the dissent. SDCL 22-5-10 is constitutional.
The rule which prevailed in this state prior to 1985, provided that a rebuttable presumption of a defendant’s sanity existed. If that presumption was overcome, the burden was placed on the state to prove the defendant’s sanity beyond a reasonable doubt. This rule was statutory, not constitutional, in origin.
In State v. Waugh, 80 S.D. 503, 509, 127 N.W.2d 429, 432 (1964), this Court wrote:
SDC 13.0201, which is the basis of our rule, classifies lunatics, insane persons, and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness, as persons not capable of committing crimes. On the other hand, SDC Ch. 13.05 enumerates defensive matters that excuse or exonerate from punishment. Insanity is not included in the list. (Emphasis added.)
The above passage reveals that this Court premised its decision, in Waugh, on two statutory bases which the legislature removed in 1985 S.D. Sess.L. ch. 192 (H.B.1369). Section 10 of the new law deleted SDCL 22-3-1(3), formerly part of SDC 13.-0201, which classified “insane” persons among those incapable of committing crimes.* Section 11 of the new law added a new section (now SDCL 22-5-10), to SDCL ch. 22-5, which provides that insanity is an affirmative defense to be proven by the defendant by clear and convincing evidence. As both statutory props for the old rule have been removed by legislative action, the rationale for the old rule explained in Waugh is no longer valid.
As our former rule was statutory, not constitutional, our prior case law provides no constitutional authority invalidating SDCL 22-5-10. The dissent’s argument that the new statutory scheme is unconstitutional is unsound; weighty authority favors SDCL 22-5-10. See Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952). The same constitutional argument used by the dissent, has been rejected by federal circuit courts considering the constitutional validity of the Insanity Defense Reform Act of 1984 (see 18 U.S.C. § 17), which is similar to SDCL 22-5-10. See United States v. Freeman, 804 F.2d 1574 (11th Cir.1986); United States v. Amos, 803 F.2d 419 (8th Cir.1986). The United States Supreme Court expressly refused to reconsider Leland in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).
Regarding the “clear and convincing” evidence required of the defendant under SDCL 22-5-10, I follow the United States Supreme Court’s lead in Leland, by which it is constitutional to require a defendant to prove his insanity beyond a reasonable doubt. “It is axiomatic, therefore, that a lesser standard of proof, such as the clear and convincing standard, may be imposed.” *760Amos, 803 F.2d at 421. The trial court’s instruction defining “clear and convincing” evidence was consistent with the language of this Court in In re S.H., 337 N.W.2d 179 (S.D.1983), and In re J.W.W., 334 N.W.2d 513 (S.D.1983). No reversal was warranted on this issue.
SDC 13.0201(4) contained the "lunatics, insane persons, and all persons of unsound mind ..." provision referred to in Waugh. 1976 S.D.Sess. L. ch. 158, § 3-1, amended SDCL 22-3-1(4), formerly SDC 13.0201(4), to provide that "mentally ill” persons were incapable of committing crimes. 1983 S.D.Sess.L. ch. 174, § 3 (S.B. 90) substituted "insane” for "mentally ill” and renumbered the subsection 22-3-1(3). SDCL 22-3-1(3) was deleted in 1985.