specially concurring. I concur in the judgment of affirmance because I am of the opinion that the evidence on the question of the defendant’s sanity at the time of the commission of the crime did not demand a finding of sanity or insanity and was sufficient to authorize the jury to conclude that the defendant was sane at the time of the crime.
Our Criminal Code contains many presumptions, some in favor of a defendant and some in favor of the state. The most important presumption in favor of the defendant, of course, is that every person is presumed innocent until proved guilty. This presumption remains with the defendant throughout his trial. Even though he presents no evidence this presumption alone is sufficient to form the general issue for a jury and must be overcome by evidence sufficient to convince the jury beyond a reasonable doubt of the *117defendant’s guilt.
One of the most important presumptions in favor of the state is that every person is presumed to be of sound mind and discretion. This presumption is conclusive unless the defendant offers evidence to the contrary. Only evidence of a legal adjudication of insanity could overcome this presumption as a matter of law. Any quantum of evidence less than this merely forms an issue between the state and the defendant as to his sanity. Whether or not the presumption of sanity has been successfully rebutted by the defendant in such a case is a question for the jury.
I fail to see the analogy suggested in the dissent between the defense of insanity and that of alibi. The defense of alibi raises the impossibility of the defendant being at the scene of the crime, making this an essential element of the crime which the state must prove in order to convict the defendant. Under the defense of insanity at the time of the commission of the crime, the defendant admits the commission of the act but seeks to avoid the consequences thereof because he did not have the mental capacity to distinguish between right and wrong. The defendant is thus faced by the presumption of sanity in favor of the state and evidence must be offered by the defendant sufficient to successfully rebut this presumption.
Gunter, Justice, dissenting. The appellant was convicted for having committed the crime of murder.
At the conclusion of the evidence the sole issue for decision by the jury was the appellant’s mental capacity to have committed the crime of murder at the time of the occurrence of the homicide.
The evidence showed that the appellant was admitted to the state mental hospital as a mentally ill person on November 29, 1967. The physician’s certificate on which the committal was based had diagnosed the appellant’s condition as "acute paranoid schizophrenia.” The appellant was released from the state mental hospital on December 21, 1968, as "discharged other than restored.”
The homicide occurred on September 5, 1972.
A psychiatrist testified that he had examined the appellant on two occasions, once before the homicide and once after the homicide, and that on those two occasions it was his opinion that the appellant would not know right from wrong.
A part of the court’s charge to the jury was as follows: "The defendant also sets up as a defense the plea that he was of unsound mind and irresponsible at the time of the alleged crime. I charge *118you that under the law of this state every person is presumed to be of sound mind and discretion but the presumption may be rebutted. I charge you further that the acts of a person of sound mind and discretion are presumed to be the product of that person’s will, but this presumption may be rebutted. And when in a criminal trial the defendant sets up as a defense that he was insane or of unsound mind at the time of the alleged crime, the burden is upon him to establish this defense, not beyond a reasonable doubt, but to the reasonable satisfaction of the jury by a preponderance of the evidence. If he carries this burden, the defendant is entitled to an acquittal.”
Upon objection being made by appellant’s counsel to this portion of the court’s charge, the trial judge recharged the jury and told them that he was striking the words "by a preponderance of the evidence.”
It has always been my view that procedural due process as required by both the Georgia and Federal Constitutions makes it mandatory in a criminal case for the state to prove the guilt of an accused to a jury beyond a reasonable doubt. In our system of justice, an accused is to be considered by a jury to be innocent until the state has proved him guilty beyond a reasonable doubt. This principle is, to me, embedded in and emanates from our fundamental law, the due process clauses in the Georgia Constitution and the Federal Constitution. And this principle, if taken seriously, will not permit a court to charge a jury that an accused bears the burden of establishing his defense of insanity or being of unsound mind to the reasonable satisfaction of a jury.
In a criminal case, I think that it is erroneous for a court to charge a jury that an accused has "the burden” of proving anything. The burden of proving guilt is on the state; and procedural due process prevents a court in our system from charging a jury in a criminal case that the burden of proving a defense or the burden of proving his innocence is on an accused.
In my dissenting opinion in Trimble v. State, 229 Ga. 399 (191 SE2d 857), I said: "I am fully convinced that under the due process clause of our Constitution and the Federal Constitution the burden of proving his alibi cannot be placed upon a defendant.” I may be wrong, but I am at least consistently wrong; and I say here that the court cannot put the burden on an accused to affirmatively prove his mental incompetency in connection with the commission of an act alleged to be a crime.
I respectfully dissent.