
    [No. 10,489.
    In Bank.]
    PEOPLE v. GEORGE M. MESSERSMITH.
    Insanity—Criminal Law—Burden oe Proof.—It is sufficient that insanity be proved by a preponderance of evidence, in order to sustain it as a defense to an indictment. '
    Id.—Id.—Id.— Instruction.—On the trial of an indictment, the Court instructed the jury, in substance, that insanity must be proved beyond a reasonable doubt, and in that connection read to the jury a decision of this Court to the effect that it is sufficient if insanity be proved by preponderance of evidence. Held, that the charge was contradictory and erroneous.
    Appeal from a judgment of conviction, in the Fourth District Court, City and County of San Francisco. Morrison, J.
    
      R. W. Thomas, for Appellant.
    
      A. L. Hart, Attorney-General, for Respondent.
   Sharpstein, J.:

The Court incorporated in it’s charge to the jury an extract from Mansfield’s opinion in Bellingham’s Case, 1 Col. Lun. 636, which, it is conceded, does not state the true rule as to the evidence required to prove insanity as a defense to a criminal charge. In this connection, the Court read extracts from opinions delivered by this Court upon that subject, and told the jury that the principles of law applicable to the question were clearly laid down in the People v. Meyers, 20 Cal. 518, in which it was held that “the question of the defendant’s insanity must be proved to the satisfaction of the jury by a preponderance of evidence.”

To the professional mind, the discrepancy between Lord Mansfield’s view and that of this Court upon that question might become apparent upon a careful inspection of the two extracts. There is nothing to indicate, however, that the Court, in the hasty preparation of its charge, detected any inconsistency between them. If it had, one or the other undoubtedly would have been omitted. And if the Court did not discover the discrepancy, it could not reasonably be expected that the jury would.

It is urged by the prosecution in this'case, as it was in the People v. Valencia, 43 Cal. 552, and the People v. Wong Ah Ngow, 54 id. 151, that the charge as a whole is correct; i. e.. that the jury, after being told that insanity need only be proved by a preponderance of evidence, would necessarily infer that Lord Mansfield erred in saying that “it must be proved beyond all doubt,” or rather, that the rule had been changed since his time. What the jury did or did not infer can never be known. Viewed in the most favorable light, the tendency of the charge was to confuse the jury who, however intelligent, cannot be presumed to have been equal to the task of carefully discriminating between the views of Lord Mansfield and those of this Court, and of adopting the latter’s in preference to the former’s. This is the only exception which appears to have been well taken.

Judgment and order denying a. new trial reversed, and cause remanded for a new trial.

Morrison, C. J., Myrick, J., Ross, J., and McKinstry, J., concurred.  