dissenting.
The nub of this case is the question of defendant’s insanity. Insanity constitutes his entire defense. It is a close question on this record. Defendant’s evidence of insanity is substantial as is the state’s rebuttal. Errors, therefore, relating to this defense must be carefully examined.
I believe it was reversible error for the trial court to instruct the jury over defendant’s objection regarding the permissive, but not mandated, commitment procedures which may have followed an acquittal on the grounds of insanity. As the majority correctly notes, the former statute required the trial judge to hold further hearings to determine whether an insanity acquittee should nevertheless be committed. The statute in effect when this case was tried permitted the court to conduct such a hearing but did not require it.
Defendant requested that these instructions on the permissive commitment procedures not be given. The trial court denied the request. I think it should have been honored. Even with the mandatory commitment procedure statute which previously existed, our rule was that a defendant who raised an insanity defense was entitled to have the jury instructed in accordance with the substance of the statute upon his request. State v. Bundridge, 294 N.C. 45, 239 S.E. 2d 811 (1978); State v. Hammonds, 290 N.C. 1, 224 S.E. 2d 595 (1976). In Hammonds this Court considered at length the rule in other jurisdictions regarding this kind of instruction. We noted that only one state required the instructions in the absence of defendant’s request. Several states adopted the rule that defendant, upon request, was entitled to the instruction. One jurisdiction had held that a defendant was enti*39tied to the instruction “unless it affirmatively appears that defendant does not want such an instruction.” Hammonds, 290 N.C. at 14, 224 S.E. 2d at 603 (emphasis original). So far as is revealed in Hammonds, no jurisdiction says the instruction ought to be given over the express objection of the defendant. Indeed, a majority of jurisdictions prohibit this kind of instruction altogether. Note, 13 Wake Forest L. Rev. 201 (1977). We have held that in the absence of a request or objection it is not error to tell the jury that a commitment hearing will be held if a defendant is acquitted by reason of insanity. State v. Harris, 306 N.C. 724, 295 S.E. 2d 391 (1982).
Under the former statute, a commitment hearing was required. The purpose of so instructing the jury was to advise them that an acquittal on the ground of insanity did not necessarily mean that defendant would be released altogether and that a hearing to determine this question would inevitably be held. Hammonds, 290 N.C. at 15, 224 S.E. 2d at 603-04. Under the statute governing this case, it was discretionary with the trial judge as to whether a commitment hearing following an insanity acquittal would even be held. This statute provided much less assurance to the jury that defendant would be otherwise committed, even if he was acquitted on the ground of insanity, than did the former statute. It is understandable why a defendant, like defendant here, might not wish the jury to be instructed regarding permissive, as opposed to mandatory, commitment procedures.
I think it is reversible error to instruct on these procedures if defendant requests, as he did here, that this instruction not be given.
I also believe it was reversible error for the trial court to instruct the jury on the insanity issue as follows:
[I]f you are in doubt as to the insanity of the defendant, the defendant is presumed under the law to be sane, and so you would find the defendant guilty if he is otherwise guilty.
The burden is on defendant simply “to satisfy” the jury of his insanity. We have said that “to satisfy” the jury is “a standard no greater and at the same time one not significantly less than persuasion by a preponderance of the evidence.” State v. Hankerson, 288 N.C. 632, 648, 220 S.E. 2d 575, 587 (1975), rev’d on other grounds, 432 U.S. 233 (1977). The defendant’s burden of persuasion on an insanity issue is no greater, therefore, than a civil *40litigant’s burden in a civil case would be, ie., to persuade the jury by a preponderance of, or greater weight of, the evidence. Under this standard, a litigant is only required to “tip the scales” in the litigant’s favor. The litigant with this burden must persuade the jury only that it is “more likely than not” that the facts in his favor are true. N.C. Pattern Jury Instructions — Civil 101.10. Thus a defendant claiming an insanity defense need satisfy the jury only that it is more likely than not that he is insane. A jury could be so satisfied and yet have some “doubt” about the question. Essentially the jury is dealing in probabilities, not certainties. The jury could believe it more probable, or more likely, than not that defendant was insane and yet still have a doubt about it.