(dissenting, in part).
I agree with the opinion of the majority that the experts in medicine and psychiatry have not yet reached such unanimity in their thinking on what is the proper test for determining criminal responsibility in its relationship to the defense of insanity as would warrant us to forsake the standard set forth in the McNaghten Rules for that known as the “Durham Rule.” For the same reason, I am' presently opposed to modifying the “knowledge” test of Mc-Naghten by the addition of the so-called “irresistible impulse” test, or to changing over to the American Law Institute Rule which was very ably presented for our consideration in an' appendix to the state’s brief.
I also agree with the majority that a defendant seeking to defend against conviction for a criminal act because of insanity should be required to prove insanity by a preponderance of the evidence; but I dissent from that part of the majority opinion which holds that it was not error for the trial court in its instruction to the jury 1 on criminal responsibility to use -the conjunctive rather than the disjunctive in the wording of the test under the McNaghten Rules.
That instruction, as I read it, required the defendant Chase, in order to be acquitted of the charge against him, to prove that he was suffering from such a diseased and deranged condition of his mental faculties as to render him not only incapable of knowing the nature and quality of his act but also incapable of distinquishing right and wrong in relation to the act. This placed upon him a double burden not comtemplated or required under the wording of the Mc-Naghten Rules.
To repeat, the instruction in question states that both incapacity to know the nature and quality of his act and incapacity to distinguish right and wrong would have to be proved by the defendant to entitle him to an acquittal. Under McNaghten, proof of only one of these incapacities was sufficient.2
The judgment of conviction should be reversed and the case remanded for a new trial because of, the erroneous instruction given.
. The pertinent part of the instruction to which I object is fully set forth near the beginning of the majority opinion and so need not be repeated here.
. See Davis v. United States, 165 U.S. 373, 17 S.Ct. 360, 41 L.Ed. 750, 754 (1897); Andersen v. United States, 237 F.2d 118, 127 (9th Cir. 1956); Travis v. State, 160 Ark. 215, 254 S.W. 464 (1923); State v. Moore, 42 N.M. 135, 76 P.2d 19, 32-33 (1938); Smith v. State, 12 Okl.Or. 307, 155 P. 699 (1916); State v. Brumfield, 104 Or. 506, 209 P. 120, 129-130 (1922); State v. Green, 78 Utah 580, 6 P.2d 177, 184 (1931). In all of the foregoing cases an instruction using the disjunctive wording was approved.