STONE, J.
It was proposed to prove in this case, by Charley Boswell, a witness for defendant, that, during the month immedately preceding the homicide, defendant “slept very little during the nights he was at home; that he was restless at night, and spent much time in walking the floor, and complained of being unable to sleep.” The plea of insanity was relied on in defense ; and if this question were so presented that we could consider it, we would be inclined to hold that the evidence ought to have been received. Sleeplessness and nervous restlessness are admissible evidence on questions of sanity vel non. Inconclusive, of course; for, in much the larger number of persons thus affected, there is no trace of mental unsouridness. The causes of it are very various. Still, it is a circumstance, although in many cases very slight, to be weighed by the jury.
But we can not pronounce that the Circuit Court erred in this ruling. The testimony was offered in connection with other evidence clearly inadmissible; offered in one continuous sentence, without any stop, or mark of separation. At the end it is said, “The State objected to this testimony, as it was offered, and the court sustained each objection, and [316]*316the defendant separately excepted.” This is too indefinite. ¥e can not certainly know what were the separate parts, into which this mass of testimony was proposed to be divided; and hence we are left in doubt as to what was the subject of each and every exception reserved. To be the subject of revision here, the exception must clearly point to what it refers. — Donnell v. Jones, 13 Ala. 490; Newton v. Jackson, 23 Ala. 705; 1 Brick. Dig. 886, § 1186.
It is certainly true that insanity, properly proved, is a complete answer to a criminal charge. An unsound mind can not form a criminal intent; and as crime includes both act and intent, an indispensable constituent is wanting, when the mind of the perpetrator is diseased in that degree, which is, by the law, pronounced insanity. Eew subjects have, in later times, been more discussed than diseases of the mind. The tendency of modern research has been to accord to mental disorders a .wider scope, than was formerly acknowledged. Care must be maintained, however, that in-commiserating and protecting this pitiable class, which appeals so loudly to our sympathies, we do not break down all legal barriers to crime, and leave society at the mercy of those whose evidence of insanity consists in their supreme depraAÚty. No defense, perhaps, is more easily simulated than this; and hence, when presented, its evidences should be carefully and' considerately scanned: not with a foregone conclusion to disallow it, as a pretense ; not with an undue bias in its favor; but with a firm determination, without partiality or prejudice, to give to the testimony submitted its due weight; nothing more, nothing less.
The questions, what degree of insanity will excuse crime; on whom, and to what extent, is cast the duty of making good, or of overturning the defense of insanity in a criminal prosecution, and the measure of proof necessary to that end, have caused the greatest contrariety of judicial opinion. The case of McNaghten, 10 Cl. & Ein. 200, came before the British House of Lords for trial; and their lordships submitted certain questions to the judges of England, which were answered by Lord Ch. J. Tindall, speaking for all the judges, except Mr. Justice Maul®, who delivered a separate opinion. Among the questions propounded were the following :
1. “ What is the law respecting alleged crimes, committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons; as, for instance, where, at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane de[317]*317lusion, of redressing or avenging some supposed grievance or injury, or of producing some supposed public benefit.
. 2. '‘What are the proper questions to be submitted to the jury, when a person, alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defense.”
3. “In what terms ought the question to be left to the jury, as to the prisoner’s state of mind, when the act was committed.”
4. "If a person, under an insane delusion as to existing facts, commits an offense in consequence thereof, is he thereby excused.”
The answer of the judges was confined to the letter of the questions. They said: “In answer to the first question, assuming that your Lordships’ inquiries are confined to those persons who labor under such partial delusion only, and are not in other respects insane, we are of opinion that, notwithstanding the party accused did the act complained of, with a view, under the influence of insane delusion, of redressing or avenging some supposed grievance or injury, or producing some public benefit, he is nevertheless punishable, according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law; by which expression, we understand your Lordships to mean, the law of the land. As the third and fourth questions appear to us to be more conveniently answered together, we have to submit our opinion to be, that the jury ought to be told, in all cases, that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is proved to their satisfaction; and that to establish a defense on the ground of insanity, it must be clearly proved, that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused, at the time of doing the act, knew the difference between right and wrong ; which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when [put generally, and in the abstract, as when put with reference to the party’s knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the deceased, solely and exclusively, with [318]*318reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowb edge of the law of the land was essential, in order to lead to a conviction; whereas, the law is administered upon the principle, that every one must be taken conclusively to know it, without proof that he does know it. If the accused were conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course, therefore, has been, to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong ; and this course, we think, is correct, accompanied with such observations and explana-^ tions as the circumstances of each particular case may require. The answer to the fourth question must, of course, depend on the nature of the delusion; but, making the same assumption as we did before — namely, that he labors under such partial delusion only, and is not in other respects insane — we think he must be considered in the same situation, as to responsibility, as if the facts with respect to which the delusion exists were real. For example, if, under the influence of delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defense, he would be exempt from punishment. If his defense was, that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.”
Mr. Justice Maulé answered the first of the questions propounded in the negative. His language was: “ There is no law, that I am aware of, that makes persons in the state described in the question not responsible for their criminal acts. To render a person irresponsible for crime, on account of unsoundness of mind, the unsoundness should, according to the law as it has long been understood and held, be such as rendered him incapable of knowing right from wrong.”
It must not be overlooked, that the judges were considering a case of partial insanity; the case of a person afflicted with “ insane delusion in respect of one or more particular subjects or persons.” And the opinion most favorable to the accused — that of all the judges except Justice Maulé— was, that insane delusion was no justification or excuse of homicide, unless the perpetrator was insanely deluded into the belief of the existence of a fact, or state of facts, which, if true, would justify or excuse the homicide, under the law as applicable to sane persons.
The case from which we have extracted so largely was [319]*319heard before the House of Lords in 1843. Lords Brougham, Campbell, Cottenham and Wynegrd expressed gratification at the answers given by the judges. Lyndhurst, then Lord Chancellor, presiding over that august court, said : “ I agree that we owe our thanks to the judges, for the attention and learning with which they have answered the questions now put to them.” The law of England, on this very delicate question, had been declared, in a very decided majority of important cases, substantially as announced by Mr. Justice Maulé ; though, in some of the earlier cases, a severer rule and measure of proof were exacted, where insansity was relied on as a defense. — See the authorities collected and collated in 1 Buss, on Crimes, 9 .to 14.
The case of Hadfiéld, a very celebrated trial for attempting to take the life of the King, seems to have been made somewhat an exception to the rule. This is the case in which Lord Erskine made his celebrated argument. We cannot find the report of it in our library; but in 1 Buss, on Crimes, 12, will be found a summary, of the evidence, and the ruling of Lord Kenyon on the main question. The prisoner had been severely wounded in battle, and there was strong evidence that, both before and after the assault, he had insane delusions of very pronounced character. The attempt was made in the theatre. It was proved, that the prisoner “ sat in his place in the theatre, nearly three-quarters of an hour before the king entered ; that at the moment when the audience rose, on his majesty’s entering his box, he got up above the rest, and presented a pistol loaded with slugs, fired it at the king’s person, and then let it drop ; and when he fired, his situation appeared favorable for taking aim,- for he was standing upon the second seat from the orchestra in the pit, and he took a deliberate aim by looking down the barrel, as a man usually does when taking aim. On his apprehension, amonst other expressions, he said, that he knew perfectly well that his life was forfeited ; that he was tired of life, and regretted nothing but the fate of a woman who was his wife, and would be his wife a few days longer, he supposed. These words he spoke calmly, and without any apparent derangement; and with equal calmness repeated that he was tired of life, and said that his plan was to get rid of it by other means ; he did not intend anything against the life of the king; he knew the attempt only would answer his purpose.” These facts showed, not only that he knew right from wrong; not only that he knew he was committing a crime against the law, by which he would forfeit his life ; but it exhibited deliberation, and the exercise of the reasoning faculty. Lord Kenyon held, that “as the prisoner was de[320]*320ranged immediately before the the offense was committed, it was improbable that he had recovered his senses in the interim ; and although, were they to run into nicety, proof might be demanded of his insanity at the precise moment when the act was committed; yet, there being no reason for believing him to have been at that period a rational and accountable being, he ought to be acquitted.” He was acquitted.
This celebrated case suggests several reflections, by which we may be profited in the administration of the law. The first is, that the workings of a diseased mind are so variant, that it is difficult to lay down an absolute rule for the government of all cases. Each case must depend, more'or less, on its own particular facts. And such is the language of the adjudged cases. In the next place, the charge to the jury should be so shaped, as to apply, as far as the law will allow, to the facts of the case on trial. Third, that calmness, indifference to results, consciousness of the moral or legal criminality of the act, with connectedness in the employment of the reasoning faculty, while ■ not conclusive evidence of sufficient sanity to justify criminal punishment, are never-theless strong circumstances tending to prove legal accountability.
In Hadjield’s case, we infer from the language of the court, that he would have been adjudged sane and accountable, if it had not been shown that, a very short time preceding the attempt on the king’s life, he had shown unmistakable symptoms of insanity. So that his case can scarcely be classed as an exception to the rule, which requires the insanity which excuses to be proven to have existed at the very time the act complained of was committed. The cool, calm, indifferent conduct of the prisoner, his consciousness of right and wrong, were, neither nor all of them, evidences which Lord Kenyon regarded as proving insanity. He treated them as indicia of sanity, to be overcome. The recent, clearly proved insanity of the prisoner, caused him to believe that, in that case, reason had not re-asserted her dominion. Erom it he inferred the continued presence of insane delusion, when the causeless, and seemingly unaccountable attempt, was made on the life of the king. So, to justify the inference of insanity from the calmness of manner, and indifference to consequences, which sometimes mark the conduct of the man-slayer, there should be convincing evidence of previous insanity, or insane delusions, so recent as, coupled with the causelessness of the killing, to raise the presumption that the paroxysm had not entirely passed away.
The doctrine in regard to partial insanity, asserted by the English judges in McNagMerCs case, was affirmed in a very [321]*321able opinion by Chief Justice Shaw, in Commonwealth v. Rogers, 7 Metc. 500. And the same principle is asserted by Wharton in his work on Homicide, § 566, citing many authorities in support of it; and in 2 Greenl. Ev. § 372. See, also, Franklin v. People, 52 N. Y. 467; Spann v. The State, 47 Geo. 553; People v. McDonnell, 47 Cal. 134; Blackburn v. The Stale, 23 Ohio St. 146.
There is a species of mental disorder, a good deal discussed in modern treatises, sometimes called “ irresistible impulse,” “ moral insanity,” and perhaps by some other names. If, by these terms, it is meant to affirm that a morbid state of the affections or passions, or an unsettling of the moral system, the mental faculties remaining meanwhile in a normal, sound condition, excuses acts otherwise criminal, we are not inclined to assent to the proposition. The senses and mental powers remaining unimpaired, that which sometimes called “ moral,” or “ emotional insanity,” savors too much of a seared conscience, or atrocious wickedness, to be entertained as a legal defense. Gibson, C. J., in Commonwealth v. Mosler, 4 Barr, 264, while recognizing the existence of moral or homicidal insanity, as “ consisting of an irresistible inclination to kill, or to commit some other particular offense,” adds: “ There may be an unseen ligament pressing on the mind, drawing it to consequences which it sees but can not avoid, and placing it under a coercion which, while its results are clearly perceived, is incapable of resistance.” With all respect for the great jurist who uttered this language, we submit if this is not almost, or quite, the synonym of that highest evidence of murderous intent known to the common law : a heart totally depraved, and fatally bent on mischief. Well might he add: “ The doctrine which acknowledges this mania is dangerous in its relations, and can be recognized only in the clearest cases. It ought to be shown to have been habitual, or, at least, to have evinced itself in more than a single instance. The frequency of this constitutional malady is fortunately small; and it is better to confine it within the strictest limits. If juries were to allow it as a general motive, operating in cases of this character, its recognition would destroy social order, as well as personal safety. To establish it as a justification in any particular case, it is necessary to show by clear proof, either its contemporaneous existence evinced by present circumstances, or the existence of an habitual tendency developed in previous cases, becoming in itself a second nature.” What is meant by “ evincing itself in more than a single instance,” and how this principle would work in administration, we are left to speculate. Can that be a sound legal [322]*322principle, whose ‘ general recognition would destroy social order, as well as personal safety ’ ? We concur with Mr. Wharton (Horn. § 574], that moral insanity, which consists of irresistible impulse, co-existing 'with meütal sanity, “has no support either in psychology or law.”
On the question of the duty and measure of proof on questions of insanity, as a defense in a criminal trial, some rulings have been made ih this court. In State v. Marler, 2 Ala. 43 (a case of murder), the Circuit Court had charged the jury, “if the facts necessary to constitute the crime of murder had been established by the proof, that it devolved upon the prisoner to prove his insanity at the time of the commission of the act; and if the jury, from the evidence, entertained a reasonable doubt of the prisoner’s insanity at the time of the commission of the act, and believecTalso that it would be murder in him, it would be their duty to find him guilty of murder.” The court had been requested to instruct the jury, that a reasonable doubt of the sanity of the prisoner required his acquittal. This court (Okmond, J.) quoted from the language of Mansfield, C. J., in Belling-ham’s case, as follows: (“That in order to support such a defense, it ought to be proved by the most distinct and unquestionable evidence, that the prisoner was incapable of judging between right and wrong; that in fact it must be proved beyond all doubt, that, at the time he committed the act, he did not consider that murder was a crime against the laws of God and nature ; and that there was no other proof of insanity, which would excuse murder or any other crime.” Judge Ormond added: “These opinions, which are undoubted law, show the stringent nature of the evidence, by which insanity must be proved, to be an excuse for crime; but we do not understand that even this defense must be established by evidence so conclusive in its nature, as to exclude every other hypothesis. This would be requiring something akin to mathematical proof, of which the subject is clearly not susceptible; but the jury must be fully satisfied that the defense is made out, beyond the reasonable doubt of a well-ordered mind. ^To test the case at bar by these principles, the court was moved to charge the jury, ‘that if they entertained any reasonable doubt as to the sanity of the prisoner, they must acquit him’; which charge the court refused. Upon the principles here laid down, it was error to refuse this charge. ... It would have been highly proper that the court, when called on thus to charge, should have explained to the jury that this defense was required to be made out by strong, clear and convincing proof; and guided by these considerations, if they still entertain a [323]*323reasonable doubt of tbe sanity of tbe prisoner, it was their duty to acquit.”
We confess ourselves unable to reconcile the two propositions of this charge. Under the one, the defense of insanity is required to be made out by strong, clear, and convincing proof; under the other, the evidence is sufficient, if it generates a reasonable doubt. If reasonable doubt of the existence of a fact, is equivalent to strong, clear, and convincing proof of its existence, then the charge can be reconciled and understood. With every respect for the able jurist by whom this opinion was delivered, we fear its tendency would be to confuse and mislead the jury. C. J. Collier dissented, saying : “A reasonable doubt whether the accused was sane,\ would not authorize his acquittal. There must be a pre-\ ponderance of proof to show insanity, to authorize a verdict) of not guilty for that cause.”
In the case of Brinyea v. The State, 5 Ala. 241, the same judges presiding, on the question of insanity as a defense, the Circuit Court had charged the jury, that “the prisoner was bound to make out by testimony, beyond all reasonable doubt, that he was insane at the time the act was committed; by proof clear, strong, and convincing; and if, upon the testimony, the jury should entertain no reasonable doubt of the defendant’s sanity, they should find him guilty.” It will be observed that, in this case, the rule laid down by the Circuit Court, as to the measure of proof of insanity required of the prisoner, was, that it should be shown beyond all reasonable doubt; and to this the court added: “If the jury entertained no reasonable doubt of the prisoner’s sanity, they should find him guilty.” This court, in commenting on this charge, said: “The objection to the charge can not 'avail the prisoner, as it is in strict accordance with the rule declared in Matter's case. . . . The prisoner then was bound to make out, by testimony, beyond all reasonable doubt, that he was insane at the time the act was committed ; by proof strong, clear, and convincing. . . . The charge, it is true, is in the negative — -that if the jury had no reasonable doubt of the sanity of the prisoner, he should be convicted. This, as it seems to us, is precisely equivalent to a charge, that if a reasonable doubt of his sanity was entertained, the jury should acquit.” This charge, then, as construed by this court, and its correctness affirmed, re-asserts the two propositions, which we have said above we can not reconcile. It goes even further, and affirms that insanity, as a defense, must be proved beyond a reasonable doubt; and then adds, if the testimony generates a doubt of its existence, this is sufficient. Buies of law ought not to be so de[324]*324dared, as to leave the mind bewildered in their attempted solution. Instructions to juries should be dear, and freed from ambiguity.
In McAllister v. The State, 17 Ala. 434, this court (Ch. J. Dargan delivering the opinion) said: “When the plea of insanity is interposed, to protect one from the legal consequences of an act which amounts to a crime, to render the defense available, the evidence must be such as to convince the minds of the jury that, at the time the act was done, the accused was not conscious that, in doing the particular act, he was committing a crime against the laws of God and his country. If he knew right from wrong, and knew that he was violating the law, he is then guilty; for it is this conscious knowledge, connected with the act, that constitutes the crime.” We feel at liberty to affirm that the question of the measure of proof, on the defense of insanity, is not settled in this court.
Much has been written, and there is much hypercriticism in the discussion of the propositions, that, in criminal prosecutions, the onus is never shifted, and that the presumption of innocence accompanies the prisoner through all the stages of his trial. These are valuable canons of the law, but, like most other general rules, are subject to some modifications in their application, the observance of which is essential to the good order and well-being of society. Murder, at common law, is made up of two ingredients, the act and the intent. All men are presumed to intend the natural result of their voluntary acts. The voluntary employment of a deadly weapon, lying in wait, the administration of poison, each supplies the presumption, which, unexplained, is proof of the intent, or malice aforethought, which stamps the homicide as murder. Proof of the killing and the manner of it accomplishes the purpose of establishing the factum or act, and the felonious intent, or formed design with which it is done, unless, in the testimony which proves the act, or in some other proof, the offense is extenuated or excused. The common-law definition of murder declares, that the malice which characterizes its bad eminence may be implied, as well as expressed. So, one found in possession of goods, proven to have been recently stolen, is presumed to be the thief, until explanation of his possession is given. Many statutes which create offenses out of certain acts, unless certain conditions exist, cast on the accused the duty of excusing himself, by proof of the required conditions. In this class are the offenses of carrying deadly weapons concealed about the person, and retailing spirituous liquors without license. So then there are cases in the law, where one material element [325]*325of a crime is inferred from the proof which establishes the other, if there be before the jury only the testimony which establishes that other fact. We imagine, also, there is a distinction and a difference between the constituent facts which make up a given crime — murder, for example — and which facts are common to every case within the class, and those occasional, or exceptional questions of fact, which do not necessarily belong to the class, but may be termed the accidents of the case. That a reasonable creature in being was killed; that the prisoner on trial was the agent, or man-slaver, and that he did the act with malice aforethought, express or implied, are facts necessary to be shown in every successful prosecution for murder. To this extent, and to each of these constituent, indispensable elements, the burden rests with the State to prove their existence, beyond a reasonable doubt. The presumption of innocence, in which all men are primarily panoplied, follows; and guards them through all the stages of the trial, until these uniformly constituent facts are established. The law, in its firm, yet conservative morality, declares that all men, who have attained to years of discretion, are presumed to be of sound mind; and without any proof of that fact, resting securely in the presumption of sanity, it adjudges the offender shall suffer its penalties. But, there are persons of mature years, whose minds are so diseased, as that they are incapable of discrim- j mating between right and wrong; and this defense is set up,; in avoidance of the facts which, otherwise, stamp the prisoner' as a murderer. We here enter the field of the exceptional, , the accidental; and inasmuch as the law presumes sanity,; that presumption, like that of innocence, should prevail throughout the trial, until it is overcome. And whether the' evidence of insanity arise out of the testimony which proves the homicide, or is shown aliunde, reason and analogy alike declare it is insufficient, until it overturns- the presumption^ of sanity.
In Commonwealth v. Eddy, 7 Gray, 583, the court said: “The burden is on the commonwealth to prove all that is necessary to constitute the crime of murder. And as that crime can be committed only by a reasonable being — a person of sane mind — the burden is on the commonwealth to prove that the defendant was of sane mind when he committed the act of killing, But it is a presumption of law that all men are of sane mind; and that presumption sustains the burden of proof, unless it is rebutted and overcome by satisfactory evidence to the contrary. In order to overcome this presumption of law, and shield the defendant from legal responsibility, the burden is on him to proye to the satisfao[326]*326tion of the jury, by a preponderance of the whole evidence in the case, that, at the time of committing the homicide, he was not of sane mind.”
Pennsylvania stands unmistakably committed to the same doctrine. — Ortwein v. Commonwealth, 76 Penn. State, 414. The opinion is both able and philosophic. Says A<hew, C. J.: “ Insanity is a defense. It presupposes the proof of the facts which constitute a legal crime, and is set up in avoidance of punishment. Keeping in mind, then, that an act of willful and malicious killing has been proved, and requires a verdict of murder, the prisoner, as a defense, avers that he was of unsound mind at the time of the killing, and incapable of controlling his will; and therefore that he is not legally responsible for his act. . . . Soundness of mind is the natural and normal condition of men, and is necessarily presumed; not only because the fact is generally so, but because a contrary presumption would be fatal to the interests of society. No one can justly claim irresponsibility for his act contrary to the known nature of the race of which he is one. He must be treated and be adjudged to be a reasonable being, until a fact so abnormal as a want of reason positively appears. It is, therefore, not unjust to him, that he should be so conclusively presumed to be, until the contrary is made to appear on his behalf. To be made so to appear to the tribunal determining the fact, the evidence of it must be satisfactory, and not merely doubtful, as nothing less than satisfaction can determine a reasonable mind to believe a fact contrary to the course of nature.” To the same effect are The State v. Smith, 53 Mo. 267; People v. McDonnell, 47 Cal. 134; State v. Lawrence, 57 Me. 574; Leoffner v. The State, 10 Ohio St. 599; State v. Starling, 6 Jones, N. C. 366; State v. Felter, 32 Iowa, 50; McKenzie v. The State, 26 Ark. 332; Wharton on Hom. § 665; 2 Greenl. Ev. § 373. Mr. Wharton, in his work on Homicide, § 666, classes New York among the States that hold insanity is a defense, the -affirmative proof of which rests with the defendant. The question, we think, is somewhat unsettled there. — Flanagan v. People, 52 New York, 467.
There are respectable authorities to the contrary, but we decline to follow them. We hold, then, that insanity is a defense which must'be proven to the satisfaction of the jury, by that measure of proof which is required in civil causes; and a reasonable doubt of sanity, raised by all the evidence, does not authorize an acquittal. The doctrine we have been combating is, we think, purely American; and we regard it as an erroneous application of the principle of presumed [327]*327innocence. One disputable presumption should not be allowed to override and annihilate another.
Under the rules above declared, the entire affirmative charge of the Circuit Court is free from error. Of the charges asked by defendant, those numbered 1,2 and 3 were abstract, there being no evidence' to support them; those numbered 4, 5, 6, 10,11, 12, 13, were all rightly refused, under the principles we have declared above ; charges 6, 7 and 8 were calculated to mislead the jury, if they were not abstract, and were-rightly refused; the two charges given at the instance of the prosecution, are free from error; and the judgment of the Circuit Court must be affirmed.
It is therefore ordered and adjudged that, on Friday, the eleventh day of June, 1830, the sheriff of Talladega county execute the sentence of the law, by hanging the said George Boswell by the neck until he is dead.
Brickell, C. J., dissenting.