The opinion
HENSHAW, J., concurring:
I concur in the foregoing opinion and judgment. The condition of our law touching instructions to the jury in the matters above discussed, I take it briefly to be this: In general, if, after their review of all of the evidence, the jury entertain a reasonable doubt of the guilt of the defendant, it is the jury’s duty to give the defendant the benefit of that doubt and to acquit him. This doctrine of reasonable doubt goes not only to the whole evidence, but equally to every material issue in the case. Thus, if upon any one material issue the jury entertain such a doubt, their
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verdict must be acquittal. When, however, our law says, as it does with equal positiveness, that when insanity is relied upon as a defense it must be proved to the satisfaction of the jury by a preponderance of evidence, there is presented an apparent conflict between the two doctrines. But this conflict is only apparent. When insanity is interposed as a defense, that one particular issue is removed from the operation of the rule of reasonable doubt. It forms an exception to it. Our law is this: If the jury entertain a reasonable doubt concerning the proof of any material issue in a criminal case, it must give the defendant the benefit of that doubt and acquit him, unless the particular issue be that of insanity. As to this issue a reasonable doubt is not sufficient to justify an acquittal at the hands of the jury, but they must be convinced that the defense of insanity is established by a preponderance of evidence. It would tend to clarify our criminal law if trial judges, where the occasion arises, would define this matter to the jury in some such way as that above indicated.
Shaw, J., concurred.