(dissenting).
This Court in State v. White, 93 Idaho 133, 456 P.2d 797 (1969), in a unanimous opinion, adopted as a standard for criminal responsibility the rule set forth in 1962 by the American Law Institute’s Model Penal Code. In that case this Court approved four of the instructions given by the trial court which set out the standards of the Institute’s code. At the time of the second trial of this case, which commenced on May 21, 1970, the legislature had enacted S.L.1970, Ch. 31, which provided
“Section 1. (1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.
(2) As used in this act, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.
* if * ”
This particular act contained an emergency clause and it became effective upon its approval on February 19, 1970.
In the instant case the trial court instructed the jury in conformity with the standards set out in State v. White, supra, and S.L.1970, Ch. 31, as follows :
“No. [14]
“ ‘The law presumes that all men are sane and responsible for their acts. In this case, the defendant has interposed the defense of insanity. The law does not place upon [him] the burden of proving beyond a reasonable doubt that [he] was insane at the time the act charged was committed, but only places the burden upon [him] to raise in your minds a reasonable doubt as to the sanity of the defendant at the time of the commission of the act alleged in the information. If you have such doubt, then this reasonable doubt must be resolved in [his] favor and you must acquit [him] of the crime charged.’ ” (Quoted from State v. White, supra, 93 Idaho at 155, 156, 456 P.2d at 799.)
“No. [15]
“ ‘The defendant has interposed insanity as a defense. The law presumes that a defendant is sane. This presumption is rebuttable. Where evidence has been introduced that a defendant suffered a mental disease or defect at the time of the commission of the crime charged, the State must prove beyond a reasonable doubt that the defendant did not have a mental disease or defect or that, despite some mental disease or defect, [he] had substantial capacity both to appreciate the wrongfulness of [his] conduct and to conform [his] conduct to the requirements of the law.’ ” (Quoted from State v. White, supra, at 93 Idaho 155, 456 P.2d 799.)
“No. [16]
“ ‘Insanity as used in these instructions means a mental disease or defect which causes lack of substantial capacity either to appreciate the wrongfulness of one’s conduct or to conform one’s conduct to the requirements of law.’ ” (Quoted from State v. White, supra, at 93 Idaho 155, 456 P.2d 799.)
The defendant presented two witnesses who testified as to his mental capacity. One of these witnesses, a clinical psycholo-gist who practiced in a local community health center, testified that in September, 1969, Myers was suffering from a psychotic disorder which he classified as a mental disease. However; this witness testified that his diagnosis was not comprehensive enough for him to have an opinion as to the mental capacity of the defendant on June 24, 1969, the date of the alleged crime.
The other witness, Dr. Liong, was qualified as an expert medical witness. He testified that he graduated from medical school and was employed at the State Hospital South, having worked there for about a year. In fact, it must be pointed out that *578the state made no challenge to Dr. Liong’s qualifications. He testified to his general duties at the hospital:
“My general duties include admitting patients by referrals from private doctors, psychiatrists, and also court referrals from the court or from judges all over Idaho, and also examine, diagnose patients before psychiatric consultants and treat these patients whenever necessary physically and psychiatrically, and also confer with other doctors regarding treatments, examinations and diagnosis. * % *_»
Dr. Liong testified that he had examined Myers on September 30, 1969, that Myers had previously been admitted to the State Hospital in November, 1967, and also in February, 1969. He stated:
“Q. Now, in February of 1969 was Mr. Myers admitted to the hospital ?
A. Yes, he was admitted the 24th of February, 1969.
Q. Do you know when he was released on this visit ?
A. He was released on the 4th of March but involuntarily and was treated subsequent to that.
Q. Do you know what is [sic] diagnosis was on this visit ?
A. This diagnosis was chronic paranoid schizophrenia together with excessive habitual drinking.”
A motion was made to strike the last answer by the doctor, but the trial court denied the motion on the basis that the testimony came from the official records of the hospital.
During further examination of Dr. Liong, he testified:
“Q. Now, Doctor, when you treated Mr. Myers on the 30th of September, 1969, did you have an opportunity prior to treating him to go through his records at the hospital ?
A. Yes.
Q. Is this general procedure before you examine a patient, to become familiar with his background ?
A. Yes.
Q. Now, in your professional opinion, when you examined Mr. Myers in September, 1969, was he suffering from a mental disease or defect or disorder?
A. Yes.
Q. What was this ?”
An objection based on remoteness was interposed to this last question which was sustained. After further discussion the witness was asked:
“Your answer to whether or not he was suffering from a metal disease or defect in June of 1969 is yes, is this correct? A. Yes.
*■*•***•*
Q. So you reached this conclusion from many sources, then, is this correct ?
A. Yes, that’s correct.
Q. Now, in June of 1969 what was Mr. Myers’ mental disease defect, in your opinion ?
A. The opinion was concurred by four members of our ward team — -
Mr. Kisling: I will object to that inasmuch as the ward team isn’t here.
The Court: He may answer.
The Witness: The diagnosis consists of three things: depressive neurosis, marital maladjustment, and habitual excessive drinking, alcoholism.
Q. Now, is depressive neurosis what you would classify as a mental disease or defect?
A. I classify it as one of the mental defects.
* * ¡4? * * *
Q. Now, Doctor, on the depressive neurosis and marital maladjustment and alcoholic blackouts, things of this nature that you testified to, could this cause a lack of substantial capacity or cause one to have a lack of substantial capacity to conform his conduct to the requirements of the law ?
A. Yes, I think he would have that
*579Q. [by prosecutor] May I enter an objection? Did you say you think not or do you know certainly ?
A. In this patient I know for certain that he is.
Q. [defense counsel] You know for certain what, Doctor ?
A. That he has lack of capacity substantial enough to recognize his requirements or to conform with the requirements of the law.
Q. Would this be in June of 1969 ?
A. Yes.”
The state did not offer any direct evidence contrary to the statement of Dr. Liong. Instead, the state relied on its cross-examination to weaken Dr. Liong’s opinion.1 In the cross-examination of Dr. Liong, the state presented in evidence exhibit A, a copy of an official three-page State Hospital South Evaluation and Discharge Summary concerning Mr. Myers, dated October 16, 1969, and signed by Dr. Liong.
That document contained the following paragraph which the state claimed at trial to be inconsistent with Dr. Liong’s testimony.
“RECOMMENDATIONS: Since the patient knows right from wrong, knows the nature of his charges and can aid counsel in his defense, and it is our opinion that he knew these things at the time of the alleged crime, and since he left the hospital on unauthorized absence, thereby indicating that he was not motivated for treatment, it is recommended that he be returned to the court to face the charges against him rather than to the hospital.”
As I read the record, however, the oral statements of Dr. Liong were never contradicted by the state. The above excerpt from the Evaluation and Discharge Summary contains one phrase relevant to the rational processes of Myers at the time of the incident, i. e., that Myers knew right from wrong at the time of the alleged crime. However, this conclusion would not overcome the doctor’s testimony for the reason that the test for criminal responsibility of State v. White and the statute is a two-part test. Dr. Liong unequivocally stated that Myers was unable to conform his conduct to the requirements of law. The written report does not comment on this aspect of the test, but relates only to the prior M’Naghten test and to the defendant’s capacity to stand trial and aid in his own defense.
It is my conclusion that exhibit A had no probative value as to the issue of whether the defendant had overcome the presumption of sanity. As stated in Instruction No. 14, “The law does not place upon him [the defendant] the burden of proving beyond a reasonable doubt that he was insane at the time the act charged was committed, but only places the burden upon him to raise in your minds a reasonable doubt as to the sanity of the defendant at the time of the commission of the act alleged in the information.” Under the state of the record at that time the sole issue was as to whether or not the defendant had submitted evidence sufficient to overcome the presumption of sanity. The only competent evidence then before the jury was Dr. Liong’s testimony to the effect that the defendant lacked sufficient mental capacity to conform his conduct to the requirements of law. (State v. White, supra.)
Under the law as set forth by this Court in State v. White, it is my conclusion that the defendant overcame the presumption of his sanity by the unrefuted testimony of Dr. Liong, and the state then failed to “prove beyond a reasonable doubt that the *580defendant did not have a mental disease or defect or that, despite some mental disease or defect, [he] had substantial capacity both to appreciate the wrongfulness of [his] conduct and to conform [his] conduct to the requirements of the law.” State v. White, Instr. No. 10, 93 Idaho at 155, 456 P.2d at 799.
Under State v. White, supra, the effect of the presumption of sanity of a defendant disappears as a rule of law when positive evidence establishes the defendant’s insanity. IX Wigmore on Evidence § 2491 (3d ed. 1940) ; I Wharton’s Crim.Evid. § 96 (12th ed. 1955). The defendant’s burden under Idaho’s insanity rule is to credibly raise the issue of his lack of mental capacity which he accomplished here. As a matter of logic, if credibly raising the issue causes the presumption of sanity to disappear then the defendant must, in effect, have also raised a reasonable doubt as to his mental capacity. The legal theory is to this effect. Phillips v. United States, 311 F.2d 204 (10th Cir. 1962).
Once the defendant succeeds in offering definite evidence as to his lack of mental capacity, and thus in effect "shifting the burden,” he is not required to go further.2 The state, in my view, errs in its position that the jury is privileged to disbelieve the unrefuted expert testimony which dispelled the presumption of the defendant’s sanity. Defendant’s witness’ testimony bears only on the presumption of sanity — the reasonable doubt. Once that is done the state must come forward with additional evidence bearing on the issue. If not, the “burden” is in reality a fiction and the jury as here would have heard no evidence on point supporting its verdict. A criminal conviction in such a circumstance requires more. In re Dennis, 51 Cal.2d 666, 335 P.2d 657 (Cal.1959); People v. Hari, 30 A.D.2d 1046, 294 N.Y.S.2d 759 (App.Div.1968), Phillips v. United States, supra.
It is my conclusion that there is merit in the defendant’s position that the jury wholly disregarded the court’s instructions in this case, and that the judgment in this case should be reversed.
. The state’s case in chief focused on the question of what factually occurred on June 24, 1969. There is in the record testimony by the police detective who arrested Mr. Myers the day following the incident to the effect that defendant appeared in a good mood and was not depressed. This observation cannot be accorded much weight in light of the fact defendant was arrested in a bar and had been drinking for a time before the arrest.
. It lias long been the law in Idaho that once a defendant raises this issue of insanity the prosecution must then prove the defendant sane beyond a reasonable doubt. State v. Staff, 9 Idaho 115, 72 P. 664 (1903); State v. Wetter, 11 Idaho 433, 83 P. 341 (1905).