Dissenting Opinion by
Mr. Justice Bell:The decision of the majority of the Court granting a new trial because of the alleged error in the charge of the trial Judge is to me incomprehensible. Defendant wilfully, deliberately and with cold-blooded premeditation laid in wait for nearly two hours to shoot and kill Daniels, who was sitting across the street on his own door steps. Defendant was found guilty of murder in the first degree and, probably because of his youth, the jury fixed the penalty at life imprisonment. He is obviously a lucky boy not to have been executed. The Commonwealth proved beyond the peradventure or possibility of a doubt that defendant had carefully planned and committed a wilful, deliberate and premeditated first degree murder. Defendant orally admitted to one detective the details of the murder which he had committed; he subsequently executed a written confession admitting in detail his commission of the murder, and he later took the witness stand and admitted under oath how he had planned to kill and how he had shot and killed Daniels, giving once again the details of this wanton murder.
The trial Judge correctly charged the jury, as the majority admit, that the Commonwealth must produce evidence to prove that defendant was guilty of murder beyond a reasonable doubt, and if it fails to do so, defendant must be acquitted. The Court in its charge said: “Now, in every criminal case the Commonwealth must produce evidence to prove the guilt of the defend*347ant of the crime charged beyond a reasonable doubt, and there never can be a conviction unless the guilt can be so proved. No matter what you may believe the circumstances and the facts actually to have been, no fact can be considered as existing against the defendant unless it be proved to you beyond a reasonable doubt. The Commonwealth must prove by evidence beyond a reasonable doubt each of the elements necessary to constitute the crime charged, and unless they are so proved the verdict must be not guilty, . . .”
I pause to ask — could any charge be fairer to defendant?
Later on, after discussing the evidence pertaining to insanity, the trial Judge charged as follows: “Now, if you find that the defense of insanity, as I have outlined it to you, has been established by a fair preponderance of the evidence, then you should render a verdict of acquittal. However, if you do not believe the defense of insanity has been proved by a fair preponderance of the evidence by the defendant upon whom the burden rests, then you must fix the degree of crime by a verdict of guilty of either murder in the first degree with penalty of death, or murder in the first degree -with penalty of life imprisonment; or murder in the second degree or voluntary manslaughter. You must weigh the evidence as you find the facts under the law as I have instructed you and arrive at one, and only one, of the five possible verdicts which I have now submitted to you.”
The majority declare this to be error for which they grant a new trial because if “the jury did not believe that a crime had been committed, or, if committed, that the defendant was not the one who had done the deed” the jury could have acquitted defendant. As a theoretical statement of the law, that is of course correct, but it is a practical inanity! This was a murder trial *348in which the Commonwealth had proved beyond the possibility of a doubt, and the defendant had admitted orally and in writing and under oath at his trial, that after careful planning he shot and killed Daniels, and his only excuse and his only defense was insanity. To pile Pelion upon Ossa, defendant pleaded “Not guilty by virtue of insanity”.
It is theoretically correct that the jury could have acquitted defendant if they believed that a crime had not been committed, or if they believed that defendant was innocent because someone else had killed Daniels, or because of an alibi, or because defendant killed Daniels in self-defense, or because Daniels committed suicide. Why not grant defendant á new trial because (1) the trial Judge did not charge the jury on alibi and self-defense and suicide, (and tell the jury they could acquit defendant for all or any one of these reasons), or (2) they could likewise acquit defendant if they believed that a crime had not been committed, dr (3) if they believed defendant did not commit the crime! Even the majority opinion approves the statement of the trial Judge that “the jury should use common sense in arriving at a verdict.” Why limit the adjuration to juries and lower Courts? In the name of common sense, what else should a Judge discuss except the testimony which was presented in this case and the pertinent principles of law applicable thereto? We repeat, “Defendant pleaded ‘Not guilty by virtue of insanity.’ ”* The jury was not trying an automobile acci*349dent at Broad and Chestnut Streets, or a will contest, or an insurance contract; they were trying a case where the defendant admitted that he wilfully and deliberately hilled Daniels, and his only excuse and. his only defense was insanity! Even the experienced counsel for defendant thought the charge was perfectly proper and did not take any exception to this part of the charge or request any amplification of the charge — he merely took a general exception, which every lawyer and every Judge knows is customary and reaches only fundamental basic error. The majority’s decision, I am sorry to say, makes a mockery of the law and is a travesty of justice.**
Courts all over the land are striving to eliminate or get away from technicalities. However, even if we resort to technicalities, the majority’s decision cannot be justified. The law is well settled that a charge must be considered as a whole, and will not be reversed for isolated excerpts :*** Commonwealth v. Kloiber, 378 Pa. 412, 418, 106 A. 2d 820; Commonwealth v. Donough, 377 Pa. 46, 53, 103 A. 2d 694; Commonwealth v. Patskin, 372 Pa. 402, 422, 93 A. 2d 704. When taken *350as a whole this charge correctly, accurately and fairly states the law.
For each of the foregoing reasons I would affirm the judgment and sentence.
Defendant’s counsel made the following statements to the jury as shown by the record: “This defendant did not plead not guilty; he pleaded not guilty by virtue of insanity. He did not deny the act in this case. He took the stand and he said exactly what he did, .... I have never said this .to a jury before. ... I do not ask you to send [defendant] out that door. I ask you . . . to say that he was not sane on June 22, 1957. I ask you then to find him *349not guilty by virtue of insanity at the time of the commission of the offense, . . . .”
The majority opinion states (although I cannot understand what it has to do with this appeal) “In the meantime the jury had been taken through the fog and the bog of the psychiatric discussion.” The fog and bog were not created by the trial Judge — they were created by the psychiatrist for the defense. From the record of murder cases which' are appealed to this Court, one gets the impression that every murderer and every criminal, according to-some psychiatrist, is insane. Confidence in psychiatry will not be enhanced if a psychiatrist can always be found who will .testify that every murderer and every criminal is insane.
In my opinion, the isolated excerpt upon which the majority rely to grant a new trial, even if considered alone, was an accurate statement of the law which was applicable to the facts in this case.