The sanity of the defendant was an essential element of the crime with which he was charged, and the law required it to be established on the trial as a part *Page 429 of the case for the prosecution, for there can be no criminal intent when, from defect of reason, the accused cannot tell right from wrong. (People v. McCann, 16 N.Y. 58, 66; Brotherton v. People, 75 N.Y. 159, 162; Walker v. People, 88 N.Y. 81,89.)
In the absence of any proof upon the subject, sanity is established by the legal presumption that every man is sane until the contrary appears, and hence no evidence was required from the People, in the first instance, in relation to that issue. (Penal Code, § 17.) The burden of overthrowing this presumption and of showing insanity was upon the defendant, who alleged it as a defense. (Brotherton v. People, 75 N.Y. 159, 163.)
When, however, much evidence had been given in behalf of the defendant tending to show that he was insane at the time of the homicide, the burden was shifted to the prosecution of establishing his sanity beyond a reasonable doubt, the same as the burden of proving the fact of killing with the statutory intent, for "an act done by a person who is * * * insane is not a crime." (Penal Code, § 20; Criminal Code, § 389.) While the rules governing the admission of evidence are the same in civil and criminal cases, those governing the weight and effect of evidence, after it has been admitted, are radically different. The rule that a preponderance of evidence is sufficient to establish an essential fact is confined substantially to civil cases and, except in a few instances not now important, has no place in the criminal law, which is governed, so far as the prosecution is concerned, by the more exacting rule of proof beyond a reasonable doubt.
The difference between the two rules consists in the amount of evidence necessary to establish a material fact and is founded upon the humane presumption of innocence which attends every person accused of crime until a verdict of guilty is rendered against him. The trial of a civil action starts with no presumption in favor of either party and the verdict follows the preponderance of evidence, however slight. On the other hand, every criminal trial starts with the affirmative *Page 430 presumption of innocence and a mere preponderance is not enough to overcome that presumption, for the law requires that every fact essential to guilt, except in this case the simple death of the victim, shall be proved to the satisfaction of the jury beyond a reasonable doubt. (Penal Code, § 181.) The distinction is so substantial as not infrequently to control the verdict and it was the legal right of the defendant to have the jury instructed as to the amount or weight of evidence required to convict him, in such clear and unmistakable terms that no confusion upon the subject could arise in the mind of any juror.
When, therefore, in the body of his charge the learned trial judge told the jury that after the defendant had given evidence tending to show that he was insane, the legal presumption of sanity was rebutted and the prosecution was required to prove his sanity by a fair preponderance of the credible evidence, he laid down an improper rule and deprived the defendant of a substantial right. It is true that later on in the charge the jury were told that if they were not satisfied beyond a reasonable doubt, that the defendant was sane and responsible for his acts at the time, their verdict should be one of acquittal on the ground of insanity, but the previous instruction was not withdrawn, and it still stood as a rule which they might follow. After an incorrect rule had been laid down, followed by the correct rule, but without explanation, the attention of the court was called to the subject by the counsel for the defendant, who said: "I think your honor stated in substance that after the defense had given evidence of insanity, then the burden is upon the people to prove sanity by a fair preponderance of the evidence. I request your honor to charge that the defense having given evidence of insanity, the burden is upon the people to prove sanity beyond a reasonable doubt." The object of this request was to clear up the confusion caused by laying down two discordant rules in relation to the amount of evidence required upon the only issue that was seriously contested, and the defendant was entitled to have the proposition charged either literally or in substance. *Page 431 The court, however, did not so charge, but in reply to the request said: "I charge you that the duty is upon the people to satisfy you as to the sanity of the defendant by a preponderance of the evidence, but in considering that evidence, if you have any reasonable doubt as to the defendant's sanity at the time, he should be acquitted upon the ground of insanity." The defendant excepted and thus raised an error, which, as I think, requires a new trial.
The same confusion as to what rule of evidence applied, which had been created by the body of the charge, was continued by this response to the request to lay down the true legal proposition. The existing doubt was not removed but was confirmed, under circumstances which were calculated to fasten the attention of the jury upon it, for no other request was made by either party. They could not tell which rule was to guide them, nor whether there was any difference between a preponderance of evidence and proof beyond a reasonable doubt. They may have concluded that if the People had furnished a preponderance of evidence as to sanity, they had no right to entertain a reasonable doubt upon the subject. They were told on the one hand that if the prosecution satisfied them as to the defendant's sanity by a preponderance of evidence, it was sufficient; and on the other, that if they had any reasonable doubt upon the subject, they should acquit. In the same sentence they were given a wrong rule and the right rule and they were free to follow either. If they followed the former, they did the defendant an injustice and how can we tell which they followed? They could not follow the entire instruction because a preponderance is not enough, although the court told them it was. They could only follow the correct part of the proposition by disregarding the incorrect part, and this they were not at liberty to do. The natural result of the entire charge, both the body and in response to the request, was to confound the two rules and lead the jury to believe there was no difference between them. The original error was not cured, but was perpetuated and confirmed by the last utterance of the court to the jury. As, *Page 432 in my judgment, an improper instruction was given and the proper instruction was refused in violation of the defendant's lawful right, I am compelled to vote for reversal and a new trial.
PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT and MARTIN, JJ., concur with GRAY, J.; VANN, J., dissents.
Judgment of conviction affirmed.