dissenting.
The only issue in this case in the trial court was the mental capacity or mental incapacity of the appellant at the time of the commission of the homicides. A portion of the charge of the court to the jury, not enumerated as error in this court, was: "While the burden of proof is on the defendant to establish this defense of insanity by a preponderance of the evidence, you would if you have a reasonable doubt as to his sanity at the time of the acts charged against him were committed you should give him the benefit of such doubt and acquit him on both grounds.”
It is my view that this charge placed the burden of proof on the appellant with respect to the only issue for decision by the jury in the case. This was, in my opinion, a burden-shifting charge, violative of procedural due process of law, and it amounts to an error of constitutional dimension.
I do not fault the trial judge for giving this charge, because it was approved by this court in Grace v. State, 231 Ga. 113 (200 SE2d 248) (1973). However, I dissented in Grace, saying; "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.” P. 118. Also, I joined the dissenting opinion of Mr. Justice Ingram in Morgan v. State, 231 Ga. 280 (201 SE2d 468) (1973) in which he said: "The defendant relied on a defense of insanity at the time of the commission of the crimes. The trial court charged the jury that the defendant had the burden of establishing his insanity by a preponderance of the evidence. . . This error is of constitutional gravity and cannot be ignored. The reasons that I regard this in*264struction to be error are set forth in some detail in my dissent in Grace v. State, 231 Ga. 113, and will not be repeated here.”
I would therefore reverse the judgment in this case because the burden-shifting charge was constitutionally erroneous.
I respectfully dissent.