(dissenting).
I respectfully dissent in the belief it is unwise and unjust to overrule our familiar and well-established rule. It is of long standing and was reaffirmed without dissent as recently as State v. Booth, 169 N.W.2d 869 (Iowa 1969):
“Insanity is an affirmative defense and the defendant who asserts it has the burden of proof by a preponderance of the evidence. (Authorities).” 169 N.W.2d at 871. The rule can be traced back through a multitude of our decisions. State v. Booth, supra; State v. Drosos, 253 Iowa 1152, 114 N.W.2d 526; State v. Bruntlett, 240 Iowa 338, 36 N.W.2d 450; State v. Maharras, 208 Iowa 127, 224 N.W. 537; State v. Cooper, 195 Iowa 258, 191 N.W. 891; State v. Wegener, 180 Iowa 102, 162 N.W. 1040; State v. Brandenberger, 151 Iowa 197, 130 N.W. 1065; State v. Humbles, 126 Iowa 462, 102 N.W. 409; State v. Thiele, 119 Iowa 659, 94 N.W. 256; State v. Novak, 109 Iowa 717, 79 N.W. 465; State v. Robbins, 109 Iowa 650, 80 N.W. 1061; State v. Trout, 74 Iowa 545, 38 N.W. 405; State v. Hemrick, 62 Iowa 414, 17 N.W. 594; State v. Bruce, 48 Iowa 530 *7(1878); State v. Geddis, 42 Iowa 264 (1875); State v. Felter, 32 Iowa 49 (1871). Other states are divided. See Annot., 17 A.L.R.3d 146.
I. The State has, to the apparent satisfaction of the majority, resisted defendant’s constitutional challenge to this rule. The majority changes the rule on the basis of substantive Iowa law. I think this in itself is wrong. Defendant’s assignment was on the basis of constitutionality of the rule and the State therefore did not argue or resist the change on the basis of the wisdom of our rule as a matter of substantive law. We should not take it upon ourselves to change a long-standing rule on a basis the State had no way of knowing would be considered.
Since constitutionality is raised I should state my belief the rule is constitutional. The majority relies upon Davis v. United States, 160 U.S. 469, 16 S.Ct. 343, 40 L.Ed. 499 (1895). The rationale in Davis was rejected by us in State v. Felter, supra, and has been rejected by us ever since.
I do not believe this determination should be affected by arguments advanced to shift the burden of proof from the accused to the prosecution where alibi is suggested as a defense. See Johnson v. Bennett, 414 F.2d 50 (8 Cir. 1969) and Stump v. Bennett, 398 F.2d 111 (8 Cir. 1968), cert. den., 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466. Sanity is not an element of the crime alleged although insanity may be claimed in defense of evidence adduced to show the element of intent. The effect of the majority’s holding is to compel the State to treat sanity as an element. This is unfair to the State because insanity is a negative condition. It is a largely subjective disorder in which the mind is other than normal and contrary to what is presumed both in law and in terms of human experience. To place on the State the burden of proving a negative condition of mind of the accused strikes me as wholly unwarranted.
Section 777.18, The Code, treats both alibi and insanity and considers both to be defenses. The joint treatment of alibi and insanity does not however make them similar.
“ * * * Certain distinctions separate the two concepts. Affirmative defenses must be established by their proponents. While it has been so treated in some courts, alibi is not a true affirmative defense. The defendant’s presence at the scene of the crime, where this presence constitutes an issue in the case, is an essential element of the crime. As such, presence must be proved by the prosecution beyond a reasonable doubt. When the defendant offers alibi proof that he was elsewhere, he is not setting up a special defense; rather, he is simply contradicting the government’s assertion that he was present at the scene of the crime. Alibi proof is thus rebutting proof, as opposed to proof of an independent affirmative defense.” Carlson, 10 The Judges Journal 51 (1971). Professor Carlson then quotes Judge Lay in Stump v. Bennett, supra:
“The defense of alibi is readily distinguishable from the plea of insanity. Basically, alibi relates to the presence of the defendant at the scene of the crime. Proof of the defendant’s presence and participation is a wholly indispensable factor to the government’s case; it is sine qua non to sustain a verdict of guilty. In reality the [challenged jury] instruction shifts the burden of persuasion on an essential element of the crime and thus requires the defendant to assume the onus of proving a negative averment, i. e., non-presence. In contrast to an insanity plea, Stump’s defense did not admit the act in any way, or any element of the crime, but rather denied any knowledge of it. Nor is the shift here based upon any conflicting legal presumption involved, as in insanity.” (Emphasis added) 398 F.2d at 119-120.
The constitutionality of our rule is resolved against the defendant by Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952). That opinion is often *8challenged as no longer being viable. See special concurrence in State v. Buchanan, 207 N.W.2d 784, 789 (Iowa 1973). I believe Leland is still viable. People v. Miller, 7 Cal.3d 562, 102 Cal.Rptr. 841, 498 P.2d 1089 (1972); State v. Mytych, 292 Minn. 248, 194 N.W.2d 276 (1972) ; Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); Earp v. Cupp, 453 F.2d 378 (9 Cir.), cert. den., 409 U.S. 868, 93 S.Ct. 167, 34 L.Ed.2d 118 (1972); Phillips v. Hocker, 473 F.2d 395 (9 Cir.), cert. den., 411 U.S. 939, 93 S.Ct. 1916, 36 L.Ed.2d 401 (1973); United States v. Greene, 489 F.2d 1145 (D.C.Cir.1973). Our rule is constitutional. The majority was right in refusing to change it on that basis.
II. As a matter of substantive Iowa law our legislature has shown in section 777.18, The Code, what it believes the rule to be.1 As previously noted it treats both alibi and insanity and considers both to be affirmative defenses to be interposed by a defendant. The suggested change should be rejected on the basis of legislative intent.
Section 783.2, The Code, prescribes the separate trial to be had when an accused claims insanity during trial. It places the burden upon the defendant to prove his claim. The majority relies on common-law, rather than constitutional, principles. It strikes me as a poor principle which invites diametrically opposed burdens of proof. Under the rule adopted by the majority the State must prove defendant was not insane at the time of the offense. Under section 783.2 the defendant must prove he is insane at the time of trial.
The change proposed by the majority constitutes an unwise invitation for endless questions, few of which can have satisfactory answers. Can the prosecution rely on the presumption of sanity in the first instance? What is necessary under the new rule to raise insanity as an issue in the case? Does the presumption of sanity remain operative as an aid to the prosecution after insanity is an issue? Is the presumption of sanity sufficient in itself to take the question to the jury? May the prosecution rely on lay evidence of sanity? May the prosecution rely on lay evidence where the defense offers testimony of experts? To what extent is the question foreclosed when someone has been legally adjudicated insane? The list of questions can doubtless be extended faster than we can answer them.
Taking the question and the authorities as stated in the majority opinion I would reach the opposite conclusion. I would reassert our long-standing rule as it was stated in State v. Booth, supra. Since I agree with the majority in the view error was not preserved as to the second assignment I would affirm.
MOORE, C. J., and LeGRAND and REES, JJ., join in this dissent.
. Legislative intent on the substantive question under submission is unaffected by any question as to the constitutionality of section 777.18, The Code. Wardius v. Orgeon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82. The section nevertheless discloses the legislature’s view insanity is an affirmative defense.