Horney, J.,
delivered the opinion of the Court.
In this criminal case, we are confronted for the first time with questions as to which party — the prosecution or the defendant — has the burden of proof on the issue of insanity and as to which degree of proof — beyond a reasonable doubt or preponderance of the evidence — -should be applied.
These appeals are from the judgments entered by the lower court after it had found the defendant (Carl David Bradford, Sr.) guilty in a nonjury trial of several cases involving statutory rape and assaults of female children ranging in age from eleven to fourteen years.
The defendant, who owned and operated a grocery store in Baltimore City, resided with his sister in living quarters above the store. He employed several young girls of the neighborhood on a part time basis to work in the store. One of them, with the permission of her parents, who were moving to the country, came to live with the defendant and his sister so- as to be able to continue attending a nearby public school and working in the store. She had her own room in the apartment above the store, and, on two occasions, while she was a member of the household, the defendant entered her room in the nighttime and had sexual intercourse with her. On other occasions, when the defendant was alone in the store with other of his young female employees, he used obscene language, made indecent solicitations, and molested them by placing his hands on them.
Following his arraignment, at which he filed pleas of not guilty by reason of insanity, the defendant was confined for approximately two months in the Clifton T. Perkins State Hospital for a determination of his mental status.
[508]*508At the trial of the defendant, Dr. Victor Gregory, a psychiatrist on the staff at Perkins, testified that after examining the defendant on numerous occasions, he was of the opinion that he had a chronic brain syndrome with a paranoid type of schizophrenic reaction. On the basis of this conclusion, he thought that the defendant “was unable to distinguish right from wrong and adhere to the right” on the dates the offenses were committed. His opinion was shared by Dr. Murray, another member of the hospital staff. On cross-examination, Dr. Gregory produced the hospital report signed by Dr. Cushard, the superintendent, and Dr. Hamilton, the clinical director. The report was based on a finding made at a staff conference at which the defendant was present. In essence, the report stated that, although the defendant suffered from a mild chronic brain syndrome, he was a responsible agent at the time of the commission of the offenses and that he had sufficient mental capacity to stand trial. But the report did not express the unanimous opinion of the three psychiatrists (Drs. Gregory, Hamilton and Murray) who were at the conference. Although Dr. Cushard signed the report, he did not attend the conference. Nor did he ever examine the defendant. Dr. Hamilton, who had not observed the defendant prior to the conference, concluded that he was sane, whereas Drs. Gregory and Murray were of the opinion that he was mentally irresponsible.
Dr. Oscar G. Prado, a psychiatrist on the staff of the State Department of Mental Hygiene, was ordered by the lower court to observe the defendant and to express an opinion in relation to the insanity plea. His report, based on a single examination, stated that the defendant was a responsible agent at the time of the commission of the offenses and that he was competent to stand trial. At the trial, Dr. Prado testified that at the time of the offenses the defendant “was not deprived, by reason of insanity, of the capacity to distinguish between right and wrong and the nature and consequences of his actions.” He was not present at the staff conference held at Perkins.
No evidence was offered by the defendant denying that he had committed the offenses with which he was charged. Nor was there any evidence that he did not have sufficient capacity to advise as to the conduct of his defense. The sole defense [509]*509was rested on the ground that he was insane at the time the various offenses were committed.
In reviewing the evidence before announcing his verdicts, the trial judge — after observing that “the presumption of sanity-carries until the defendant raises a serious question as to [his] sanity” and that the lack of unanimity on the part of the hospital staff made it “impossible [for the judge] to give an opinion which would reflect on the condition of the patient” — stated that the opinion expressed by Dr. Gregory was not specific “under the Maryland test for legal insanity,” and then found that “the defendant was sane at the time of the commission of the alleged offenses mentioned in the indictments, and that he is sane today.”
On appeal, the defendant contends: (i) that there was sufficient evidence to overcome the presumption of sanity; (ii) that once this presumption has been rebutted, the State has the burden of proving sanity beyond a reasonable doubt; and (iii) that the State did not successfully meet the burden cast upon it.
(i)
In this nonjury case, it was the function of the lower court to evaluate the conflicting evidence on the issue of sanity and to determine whether or not the presumption of sanity had been rebutted. While it is the function of this Court to review both the law and the evidence, we cannot set aside the findings of the lower court on the evidence unless clearly erroneous. Dunn v. State, 226 Md. 463, 174 A. 2d 185 (1961); Saldiveri v. State, 217 Md. 412, 143 A. 2d 70 (1958); Maryland Rule 886 a.
All of the courts in this country are in agreement that there is a presumption that all persons are sane and responsible for their acts at the time of the commission of a criminal offense. See Weihofen, Mental Disorder As A Criminal Defense, p. 214. See also Saldiveri v. State, supra, at p. 423. This presumption is a creature of necessity and serves principally to save time in the trial of the issues presented by the pleadings. Otherwise a great deal of time and effort would be wasted if in every case the prosecution had to introduce full evidence of sanity as it does of all other material facts. See the casenote, Burden [510]*510of Proof of Insanity in Criminal Cases, in 15 Md. L. Rev. 157, 160.
This Court has said that “a man is presumed sane until sufficient proof of insanity is introduced to raise a question in the minds of reasonable men as to whether he is or is not sane.” Lipscomb v. State, 223 Md. 599, 604, 165 A. 2d 918 (1960). The “sufficient proof” necessary to overcome the presumption must be evidence of insanity under the “M’Naghten-Spencer” test. Saldiveri v. State, supra, at p. 422. In other words, regardless of who introduces it, it must be shown by sufficient competent evidence that the defendant, at the time of the commission of the offense, did not have capacity and reason sufficient to enable him to distinguish between right and wrong and understand the nature and consequences of his acts as applied to himself. Spencer v. State, 69 Md. 28, 13 Atl. 809 (1888). Evidence of some undefined mental disorder or instability is insufficient proof to overcome the presumption of sanity. See Thomas v. State, 206 Md. 575, 112 A. 2d 913 (1955) ; Bryant v. State, 207 Md. 565, 115 A. 2d 502 (1955); and Cole v. State, 212 Md. 55, 128 A.
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Horney, J.,
delivered the opinion of the Court.
In this criminal case, we are confronted for the first time with questions as to which party — the prosecution or the defendant — has the burden of proof on the issue of insanity and as to which degree of proof — beyond a reasonable doubt or preponderance of the evidence — -should be applied.
These appeals are from the judgments entered by the lower court after it had found the defendant (Carl David Bradford, Sr.) guilty in a nonjury trial of several cases involving statutory rape and assaults of female children ranging in age from eleven to fourteen years.
The defendant, who owned and operated a grocery store in Baltimore City, resided with his sister in living quarters above the store. He employed several young girls of the neighborhood on a part time basis to work in the store. One of them, with the permission of her parents, who were moving to the country, came to live with the defendant and his sister so- as to be able to continue attending a nearby public school and working in the store. She had her own room in the apartment above the store, and, on two occasions, while she was a member of the household, the defendant entered her room in the nighttime and had sexual intercourse with her. On other occasions, when the defendant was alone in the store with other of his young female employees, he used obscene language, made indecent solicitations, and molested them by placing his hands on them.
Following his arraignment, at which he filed pleas of not guilty by reason of insanity, the defendant was confined for approximately two months in the Clifton T. Perkins State Hospital for a determination of his mental status.
[508]*508At the trial of the defendant, Dr. Victor Gregory, a psychiatrist on the staff at Perkins, testified that after examining the defendant on numerous occasions, he was of the opinion that he had a chronic brain syndrome with a paranoid type of schizophrenic reaction. On the basis of this conclusion, he thought that the defendant “was unable to distinguish right from wrong and adhere to the right” on the dates the offenses were committed. His opinion was shared by Dr. Murray, another member of the hospital staff. On cross-examination, Dr. Gregory produced the hospital report signed by Dr. Cushard, the superintendent, and Dr. Hamilton, the clinical director. The report was based on a finding made at a staff conference at which the defendant was present. In essence, the report stated that, although the defendant suffered from a mild chronic brain syndrome, he was a responsible agent at the time of the commission of the offenses and that he had sufficient mental capacity to stand trial. But the report did not express the unanimous opinion of the three psychiatrists (Drs. Gregory, Hamilton and Murray) who were at the conference. Although Dr. Cushard signed the report, he did not attend the conference. Nor did he ever examine the defendant. Dr. Hamilton, who had not observed the defendant prior to the conference, concluded that he was sane, whereas Drs. Gregory and Murray were of the opinion that he was mentally irresponsible.
Dr. Oscar G. Prado, a psychiatrist on the staff of the State Department of Mental Hygiene, was ordered by the lower court to observe the defendant and to express an opinion in relation to the insanity plea. His report, based on a single examination, stated that the defendant was a responsible agent at the time of the commission of the offenses and that he was competent to stand trial. At the trial, Dr. Prado testified that at the time of the offenses the defendant “was not deprived, by reason of insanity, of the capacity to distinguish between right and wrong and the nature and consequences of his actions.” He was not present at the staff conference held at Perkins.
No evidence was offered by the defendant denying that he had committed the offenses with which he was charged. Nor was there any evidence that he did not have sufficient capacity to advise as to the conduct of his defense. The sole defense [509]*509was rested on the ground that he was insane at the time the various offenses were committed.
In reviewing the evidence before announcing his verdicts, the trial judge — after observing that “the presumption of sanity-carries until the defendant raises a serious question as to [his] sanity” and that the lack of unanimity on the part of the hospital staff made it “impossible [for the judge] to give an opinion which would reflect on the condition of the patient” — stated that the opinion expressed by Dr. Gregory was not specific “under the Maryland test for legal insanity,” and then found that “the defendant was sane at the time of the commission of the alleged offenses mentioned in the indictments, and that he is sane today.”
On appeal, the defendant contends: (i) that there was sufficient evidence to overcome the presumption of sanity; (ii) that once this presumption has been rebutted, the State has the burden of proving sanity beyond a reasonable doubt; and (iii) that the State did not successfully meet the burden cast upon it.
(i)
In this nonjury case, it was the function of the lower court to evaluate the conflicting evidence on the issue of sanity and to determine whether or not the presumption of sanity had been rebutted. While it is the function of this Court to review both the law and the evidence, we cannot set aside the findings of the lower court on the evidence unless clearly erroneous. Dunn v. State, 226 Md. 463, 174 A. 2d 185 (1961); Saldiveri v. State, 217 Md. 412, 143 A. 2d 70 (1958); Maryland Rule 886 a.
All of the courts in this country are in agreement that there is a presumption that all persons are sane and responsible for their acts at the time of the commission of a criminal offense. See Weihofen, Mental Disorder As A Criminal Defense, p. 214. See also Saldiveri v. State, supra, at p. 423. This presumption is a creature of necessity and serves principally to save time in the trial of the issues presented by the pleadings. Otherwise a great deal of time and effort would be wasted if in every case the prosecution had to introduce full evidence of sanity as it does of all other material facts. See the casenote, Burden [510]*510of Proof of Insanity in Criminal Cases, in 15 Md. L. Rev. 157, 160.
This Court has said that “a man is presumed sane until sufficient proof of insanity is introduced to raise a question in the minds of reasonable men as to whether he is or is not sane.” Lipscomb v. State, 223 Md. 599, 604, 165 A. 2d 918 (1960). The “sufficient proof” necessary to overcome the presumption must be evidence of insanity under the “M’Naghten-Spencer” test. Saldiveri v. State, supra, at p. 422. In other words, regardless of who introduces it, it must be shown by sufficient competent evidence that the defendant, at the time of the commission of the offense, did not have capacity and reason sufficient to enable him to distinguish between right and wrong and understand the nature and consequences of his acts as applied to himself. Spencer v. State, 69 Md. 28, 13 Atl. 809 (1888). Evidence of some undefined mental disorder or instability is insufficient proof to overcome the presumption of sanity. See Thomas v. State, 206 Md. 575, 112 A. 2d 913 (1955) ; Bryant v. State, 207 Md. 565, 115 A. 2d 502 (1955); and Cole v. State, 212 Md. 55, 128 A. 2d 437 (1957), wherein this Court rejected the liberal test for ascertaining criminal responsibility applied in Durham v. United States, 214 F. 2d 862, 874 (1954), to the effect that an accused is not responsible if his act was the product of a mental disease or mental defect.
In the case at bar, the trial court had before it conflicting evidence on the issue of the defendant’s sanity. On the one hand, the hospital report based primarily on the opinion of Dr. Hamilton, and the independent conclusion of Dr. Prado, indicated that the defendant was sane. On the other hand, Dr. Gregory, with whom Dr. Murray was in agreement, was of the opinion that the defendant was insane. It is obvious that the decision the lower court had to make was not an easy one, but we think it was in error when it disregarded the conclusion of Dr. Gregory as to the mental status of the defendant and ruled that the presumption of sanity had not been rebutted. Rule 886 a. Apparently the testimony of Dr. Gregory was not considered because the court believed that he had not been specific as to whether or not he had applied the Maryland test in arriving at the opinion he expressed. As we read it, the record shows that [511]*511he had been quite specific. While it is true that Dr. Gregory, in testifying in chief as to the defendant’s lack of criminal responsibility, did not use the exact phraseology (nor did Dr. Prado) of the M’Naghten-Spencer test, the court evidently overlooked the fact that the witness, on recross-examination, unequivocally stated that the defendant “was insane under the M’Naghten rule.” Having applied the approved test, Dr. Gregory was a competent witness and the lower court should have considered his testimony. We think that the testimony of Dr. Gregory (with which Dr. Murray agreed) was sufficient proof of insanity to raise a doubt in the minds of reasonable men as to the defendant’s sanity and thereby overcome the presumption of sanity. Lipscomb v. State, supra.
(ii) and (iii)
Once sufficient proof of insanity has been introduced to overcome the presumption of sanity, there still remains the problem of determining who has the burden of convincing the trier of facts on the issue of insanity. This question has been raised in a number of previous cases, but we have never had to decide it because there was in each of those cases insufficient evidence to rebut the presumption of sanity. See, for example, Tull v. State, 230 Md. 596, 188 A. 2d 150 (1963); Dunn v. State, supra; Lipscomb v. State, supra; Saldiveri v. State, supra; Thomas v. State, supra. In Saldiveri, we said at p. 423 of 217 Md.:
“[The American jurisdictions] are about evenly divided on the question of who has the burden of proving insanity in criminal cases. Some of the states have ruled that the burden of proof is upon the defendant who pleads insanity, which means that the defendant is required to establish his defense of insanity by a preponderance of the evidence, and proof beyond a reasonable doubt is not required. Other states have ruled that the burden is on the prosecution, which means that the defendant is required to produce only enough evidence of a mental disorder to overcome the presumption of sanity, and when this has been done, the State is required to prove sanity beyond a reasonable doubt.”
[512]*512In order to properly analyze the several tests applied by the courts in specifying the character of the burden of proof it will be salutary to keep in mind that the concept of the burden of proof involves two constituent elements: there is the initial burden of going forward with the evidence and there is also the burden of persuasion. Lindman and McIntyre, The Mentally Disabled and> the Law, p. 349. The effect of having the burden of persuasion is that, if after all the evidence is presented by both sides, the trier of facts is not persuaded to the requisite degree of certainty of the criminal responsibility or irresponsibility of the defendant, that side which has the burden of pervasion must lose. See McCormick on Evidence, §§ 318-322.
Those jurisdictions which take the view that the prosecution has the burden of proving the sanity of the accused assert that the fundamental rule of law requiring the State to prove the guilt of a defendant beyond a reasonable doubt should logically extend to the issue of criminal responsibility. The reasoning is that since the basic elements of a criminal offense (except those which are malum prohibitum) are the act itself and the mens rea or intent to commit it, it is necessary, in order to prove the intent, to show that the perpetrator was capable of forming the requisite intent. In other words, it must be shown that the perpetrator was sane or else he could not have had the intent to commit the offense charged. These jurisdictions hold that proving the sanity of the defendant, once it has been brought into issue, is an essential element of the offense; and that since the State has the burden of proving all the elements thereof, it must necessarily have the burden of producing evidence and the burden of persuasion on the issue of insanity, despite the fact that, at the outset, the presumption of sanity places the initial burden of producing evidence on the defendant. But once the presumption has been rebutted it disappears as a rule of law and has no probative value as evidence. See Thayer, A Preliminary Treatise on Evidence at the Common Law, p. 576. When this takes place, the burden of producing evidence as well as persuading the trier of facts falls upon the State and it must then prove sanity beyond a reasonable doubt as it must do in proving all other elements of the crime.1
[513]*513The opposing view, which places the burden of proof on the defendant, treats the issue of criminal responsibility as an affirmative defense to be established by the defendant, rather than as an element of the criminal offense to be proved as a part of the State’s case. The courts adhering to this view assert that although mens rea cannot exist without sanity, it is a preexisting fact inferable from general experience that the vast majority of men are rational beings; that, accordingly, the presumption of sanity is an inference of fact from which the trier of facts can draw conclusions of fact, rather than a legal presumption, and operates to place the entire burden of proof (i.e., the burden of producing evidence and the burden of persuasion) on the defendant; and that the burden prevails until the defendant has shown the trier of facts by a preponderance of all the evidence, taking into account the presumption of sanity, that the defendant is insane.2
Our analysis of the two prevailing tests 3 leads us to believe that the “reasonable doubt” test is more logical than the “preponderance of evidence” test. Instead of being an inference of fact from which conclusions of fact may be drawn, we consider the presumption of sanity to be a legal presumption which prevails only until sufficient proof of insanity has been introduced, in which event the burden of proof shifts to the State to prove its case against the defendant beyond a reasonable doubt. Thomas v. State, supra. And see Lipscomb v. State, supra. Difficult problems relating to the protection of society and of a defendant who is acquitted on the ground of insanity are met [514]*514by § 8(b) of Article 59 which was added to the Code of 1957 by Ch. 43 of the Laws of 1963. This provides for the test of danger to society or to himself, rather than of criminal responsibility, in determining whether the defendant should be released.4
In reaching this conclusion we are not unmindful that we have consistently held that a defendant need not establish self-defense beyond a reasonable doubt and that proof thereof by a preponderance of the evidence is all that is required. Gunther v. State, 228 Md. 404, 179 A. 2d 880 (1962). See also Perry v. State, 234 Md. 48, 197 A. 2d 833 (1964). But we see no reason why we should adopt a like rule with respect to the plea of insanity. Self-defense is an affirmative defense which a defendant has the burden of establishing, whereas insanity involves the mens- rea or intent which is an essential element of the offense which the State must prove.
While the lower court found that the defendant was sane at the times he committed the offenses with which he was charged, the record does not disclose whether it applied the “reasonable doubt” or the “preponderance of evidence” test in arriving at its findings of guilty as charged. We shall therefore remand the case without affirmance or reversal pursuant to Rule 871 for such further proceedings as may be necessary to indicate which ■test was applied.
Case remanded without affirmance or reversal for such further proceedings as may be necessary to comply with the requirements of this opinion.