CONCURRING IN PART; DISSENTING IN PART.
Arterburn, C. J.I can not concur in the reasoning of the majority opinion because I see no reason for changing the law in Indiana from that set forth in Berry v. State (1968), 251 Ind. 494, 242 N. E. 2d 355, concurred in at the time by both Judges Hunter and DeBruler,
*253Vacillation and change in ruling precedent is to be deplored. It leaves the trial courts in a state of confusion.
I do concur in the result in this case for another reason, namely because the instruction, by its very wording places upon the defendant the necessity of producing evidence of insanity. The law is to the contrary without question. Namely that the evidence, whether it comes from the State’s side or from the defendant’s side of the case on the issue of insanity should be considered by the jury. The foregoing instruction, by its words, limits the evidence on insanity to be considered by the jury to that “introduced by the defendant.”
The majority opinion in substance states that it is error “for the jury to be instructed that there was a presumption that the defendant was sane.” Yet it is clearly the law in the State that the defendant in a criminal cause is presumed to be sane. It does concede that “the presumption of sanity is a legal presumption and its evidence eliminates the necessity for the State to prove sanity in each and every criminal prosecution.”
It further says that the presumption disappears if any evidence of insanity is introduced. In my opinion this is a misstatement of the law. “Any evidence” covers both credible or incredible, or unbelievable evidence, and therefore, if evidence, no matter how incredible, is introduced on insanity, the presumption may not be considered by the jury under the majority opinion. As a result, any evidence becomes credible under the majority opinion because it must be accepted sufficiently to counteract the presumption of sanity which is universally recognized.
The majority opinion says that the jury should not be instructed upon the presumption of sanity apparently at any time, because if no plea of insanity is made, there is no such issue existing upon which such instructions can be based. If the plea of insanity is made, any evidence eliminates the *254court’s privilege of instructing the jury on the law of presumption. Of course, any evidence means simply what it says, any fact may be considered in the case on the question of the defendant’s sanity, and therefore, a trial court will never be able to determine when, if at any time, the jury should be instructed upon the legal presumption of sanity.
The Constitution of Indiana, Article I, Section 19 states:
“In all criminal cases whatever, the jury shall have the right to determine the law and the facts.”
This constitutional provision is implemented by the statutes, Burns’ 9-1805 which directs the court to state to the jury all matters of law which are necessary for their determination of a cause and to state to the jury that they have a right not only to determine the facts in the case but “also to determine the law.”
The majority opinion holds that to be error, to tell a jury that there exists a presumption of sanity. The majority opinion holds that it is error to instruct a jury that there exists a principle of law that a person is presumed sane until credible evidence to the contrary convinces them of his insanity.
The majority opinion indulges in a great deal of semantics discussing the “burden of producing,” “burden of proof” and “burden of persuasion.”
It states the “burden of producing evidence” of insanity is on the defendant; “the burden of persuasion, however, rests at all times upon the State.”
I must confess I am totally confused and I think the trial courts of the state will be by such language.
C. McCormick, Law of Evidence, p. 665 (1954), makes the following statement regarding presumptions:
“. . . but it is believed that the prevailing view is that merely advising the jury of the existence of the presumption as a rule which warrants or authorizes them to find in accord with it, does not violate the statute. Certainly the practice of apprising the jury on presumptions if followed *255constantly in many states . . . ‘The form books are replete with instructions on presumptions and the digests give abundant evidence on the widespread and unquestioning acceptance of the practice of informing the jury of the presumption despite the fact that countervailing evidence has been adduced upon the disputed inference. It seems to me that the practice is wise and indeed almost necessary.’ ”
8 ILE Criminal Law Sec. 164 (1971) says in part:
“A presumption exists that all men are sane, including an accused, and the mere introduction by the accused of evidence tending to show insanity does not overcome the presumption of sanity.” Citing Berry v. State (1968), 251 Ind. 494, 242 N. E. 2d 355.
To the same effect see: 21 Am. Jur. 2d Criminal Law Sec. 50 (1965).
We are faced, therefore, with the position of changing the law in Indiana, which follows the majority rule as McCormick points out, to that in which the jury is to be told nothing about the presumption of sanity. We are further put in the position of usurping the jury’s right to determine whether or not it is credible evidence presented of insanity, because under the majority opinion, any evidence, whether credible or not, overcomes the presumption of sanity and the jury is not entitled to consider the presumption of sanity. It would also follow under such a theory, that if any evidence, whether believable or not, is presented on the question of insanity, the defendant would be entitled to a directed verdict if the State had failed to present positive evidence of sanity in its prima facie case.
In other words, if the State makes out its prima facie case along with presumption of sanity as it usually does, and the defendant introduces any evidence of insanity, even though the jury does not believe it; upon a motion for a directed verdict, the judge would be compelled to direct a verdict in favor of the defendant. This would be compelled on the ground that any evidence (even though the jury may find it is unbeliev*256able and incredible evidence) on that issue has eliminated the presumption of sanity.
This very point is emphasized in Freeze v. State (1903),
159 Ind. 597, 65 N. E. 915 where the defendant pleaded insanity and introduced some evidence tending to prove insanity. The State offered no evidence to the contrary in rebuttal.
The Court stated:
“The substance of the argument is that as appellant offered evidence tending to prove appellant’s unsoundness of mind, the jury was bound to acquit, in absence of direct proof to the contrary. Unquestionably the sanity of the defendant must appear beyond a reasonable doubt, and, when the presumption of sanity that attends every one has been overthrown or impaired, the State must reestablish it by competent proof, or the defendant should be acquitted. But it is the province of the jury, under proper instructions, to determine when the condition of sanity has been made doubtful, and when the doubt has been removed.
All testimony is not proof. That only is proof which convinces. It may be, and in fact we must assume, that the jury, for what seemed to them sufficient reason, wholly discredited the testimony of appellant’s daughter.” . . . ‘So it is, if the jury, being the sole judges of the weight of the evidence, found the evidence offered by appellant unworthy of belief, they had a right to disregard it’.”
Under the theory of the majority opinion there would be no presumption of sanity in the above case, at the same time the jury would not believe or accept as credible the testimony on insanity. Therefore, there being no evidence to go to the jury on the issue of insanity and the “burden of persuasion” and “burden of proof” being on the State, the Court would have been compelled to direct a verdict for the defendant. Since under the majority opinion the “burden” imposed by the presumption is the “burden of producing evidence” which is imposed upon the defendant. It appears the defendant sustained his “burden.”
I still think Berry v. State (1968), 251 Ind. 494, 242 N. E. 2d 355, is good law when it points out that a jury is entitled *257to be instructed that there is a presumption of sanity until there is credible evidence (evidence which they believe) of insanity introduced into the case, not merely any unbelievable evidence as the majority would insist. I point out that this opinion so far as I can find has caused no difficulty with trial courts. I further point out that it has long been customary for trial courts to instruct the jury on the presumption of sanity.
I do not think we should change the law in Indiana and create more confusion. Of course, the State must prove its case beyond a reasonable doubt, but I do not think it has to include positive evidence of sanity in the opening case.
Berry v. State, supra, quotes from and is supported by the law in Limp v. State (1950), 228 Ind. 361, 365, 92 N. E. 2d 549, 550, and in theory by Freeze v. State (1903), 159 Ind. 597, 604, 65 N. E. 2d 915, 917.
In the latter case our court stated:
“But it is the province of the jury, under proper instructions, to determine when the condition of sanity has been made doubtful, and when the doubt has been removed.” (emphasis added)
We ask what is a jury to do if it does not believe the evidence as to insanity unless it is instructed that there is a presumption of sanity in such a case? In our opinion the cases in Indiana answer that question without leaving the jury in a dilemma and the trial courts also.
Note. — Reported in 280 N. E. 2d 595.