Mr. Justice Mercur
delivered the opinion of the court,
Forty-six errors are assigned. Many of them were not pressed on the argument, and have no special merit.
The killing of Anna O. Pannell by her husband, the plaintiff in error, is not questioned. The sole ground of defence urged to secure an acquittal, or to lessen the grade of the crime, was the unsound mind of the prisoner. "We cannot say that there was not much evidence tending to prove him to be of unsound mind. If, several of the witnesses were believed, the opinion of his insanity was not first entertained after the commission of tjiis act, but existed, and was expressed, many years prior thereto. It was claimed that he had hereditary insanity. To sustain this view evidence was given that the mother of the prisoner was of unsound mind and committed suicide.'
The only plea being that of insanity, and some eight or ten witnesses having testified to facts in support of that plea, it was rather an unfriendly remark of the learned judge, when he said to the jury, near the commencement of his charge, “should it become necessary in your judgment to consider the evidence bearing upon the plea of the prisoner, and by which it is claimed he is entitled to palliation or excuse.” In its effect it was equivalent to saying, should it become necessary for you to consider whether he has any defence. As he had no other defence, the jury may well have considered that the judge expressed a doubt whether they should deem the evidence of sufficient importance to consider it.
The homicide occurred some three months after the parties were united in marriage. At times he appeared to doubt the faithfulness of his wife. Sometimes he was irritable, cross and quarrelsome. At others he was loving and kind towards her. The defence rested on hereditary taint, his own conduct and appearance for many [267]*267years, and bis fickle and unreasonable conduct toward his wife. It was not claimed that his insanity was of that type which is manifested in the paroxysmal or frenzied action of a maniac ; but that, in a more subdued form, his mind was dethroned. This distinction was not very prominently presented in the charge, and the omission so to do may possibly have misled the jury; yet it' is not so clear as to require us to say there was positive error therein. The assignments, from the 5th to the 25th inclusive, excluding the 9th, 21st, 22d, 23d and 24th, are designed to present this distinction. They cover objections to the form in which the question was put to the witnesses on the part of the Commonwealth. It was, “ Did you or did you not discover anything that led you to think he was insane?” It was contended the word “insane” implied a higher degree of mental alienation than was necessary to exculpate the prisoner, and that the form of the question indicated the answer desired. In view' of the fact that murder can be committed by none other than “a person of sound memory and discretion,” it may be that the better form would be, “ Was he of sound or unsound'mind?” Yet, inasmuch as the witnesses’ understanding of what constituted insanity, as well as what constituted unsound mind, can be ascertained on cross-examination, we do not see that the rights of the prisoner were prejudiced by the use of the word insane; nor do we think the question was so leading as to make it objectionable.
The disallowed question covered by the 9th assignment was put under these circumstances: The witness had testified in chief to his acquaintance with the prisoner; that he had seen him many times, and conversed with him, and did not discover anything which led him to believe the prisoner was insane. It did not appear that his attention had ever been called to observe or notice whether he was insane.
So on-cross-examination he was asked whether, from all he had related, he discovered anything on which he could base an opinion as to whether the prisoner was sane or insane. Avoiding any answer as to whether he discovered anything on which he could base an opinion that the prisoner was sane, he replied that he saw nothing which led him to believe the prisoner was insane. Then in view of the fact that, the witness’s attention had not been called to observe the condition of the prisoner’s mind, he was asked whether he saw enough, in his intercourse with the prisoner, to warrant him in expressing an opinion as to sanity or insanity. Substantially the question was whether he had scrutinized him with sufficient attention to form an intelligent opinion in regard to the condition of his mind. As the weight to be given to the opinion of the witness depended much on this fact, there was error in disallowing the question.
The 26th, 34th and 36th assignments present the question, to [268]*268what degree or extent must the insanity of the prisoner be proved in order to acquit him ? The court was asked to charge, “if the jury believe that at the time the homicide was committed the defendant was insane, he must be acquitted.” The court answered this in the affirmative as an abstract proposition, but added “that the jury must be satisfied by satisfactory and conclusive proof of the insanity of the defendant.”
That the proof of insanity must be satisfactory, and not merely doubtful, to justify an acquittal, is undoubtedly correct; but we do not know any case in which it has been held that it must be conclusive. To require it to be absolutely conclusive, is asking for too high a degree of certainty. It is not necessary that the proof of insanity should be so conclusive as to remove all doubt. It may be established by satisfactory and fairly preponderating evidence : Ortwein v. Commonwealth, 26 P. F. Smith 421; Lynch v. Same, 27 Id. 207; Brown v. Same, 28 Id. 123; Meyers v. Same, 2 Norris 131. It is contended on the part of the Commonwealth that, conceding the word “conclusive” is objectionable as thus used, yet, inasmuch as the court in several other parts of the charge said the evidence need be satisfactory only, the general effect of the charge did no injury to the prisoner. To this we answer, an examination shows the same objectionable language, substantially, used in other places. Thus in the portion of the charge covered by the 34th assignment, in commenting on the evidence tending to prove insanity, the court said: “ If made out beyond a reasonable doubt, it is a good defence and ought to acquit,” thereby clearly indicating that-any'less degree of proof was not sufficient.
Again, in the 36th assignment, after presenting the different kinds and phases of mental diseases, the court said, “Now, whether all or any of those conditions existed in the prisoner at the time of the killing, is simply a question of fact, to be established, if possible, by conclusive and satisfactory evidence.” The jury might have understood the court to here say that it was not possible to establish insanity otherwise than by conclusive evidence. The effect of the language we have quoted is so far modified by the use of appropriate language in other portions of the charge, that in a case not capital, we might not feel required to reverse. In this case, where the life of a human being is at stake, he has a right to demand that the case shall be submitted to the jury under no doubtful instruction on a vital question. It is impossible to tell whether the jury acted on the opinion that satisfactory and preponderating evidence was sufficient to establish insanity, or whether “conclusive” evidence so strong as to establish it “beyond a reasonable doubt” was necessary. These assignments are sustained.
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Mr. Justice Mercur
delivered the opinion of the court,
Forty-six errors are assigned. Many of them were not pressed on the argument, and have no special merit.
The killing of Anna O. Pannell by her husband, the plaintiff in error, is not questioned. The sole ground of defence urged to secure an acquittal, or to lessen the grade of the crime, was the unsound mind of the prisoner. "We cannot say that there was not much evidence tending to prove him to be of unsound mind. If, several of the witnesses were believed, the opinion of his insanity was not first entertained after the commission of tjiis act, but existed, and was expressed, many years prior thereto. It was claimed that he had hereditary insanity. To sustain this view evidence was given that the mother of the prisoner was of unsound mind and committed suicide.'
The only plea being that of insanity, and some eight or ten witnesses having testified to facts in support of that plea, it was rather an unfriendly remark of the learned judge, when he said to the jury, near the commencement of his charge, “should it become necessary in your judgment to consider the evidence bearing upon the plea of the prisoner, and by which it is claimed he is entitled to palliation or excuse.” In its effect it was equivalent to saying, should it become necessary for you to consider whether he has any defence. As he had no other defence, the jury may well have considered that the judge expressed a doubt whether they should deem the evidence of sufficient importance to consider it.
The homicide occurred some three months after the parties were united in marriage. At times he appeared to doubt the faithfulness of his wife. Sometimes he was irritable, cross and quarrelsome. At others he was loving and kind towards her. The defence rested on hereditary taint, his own conduct and appearance for many [267]*267years, and bis fickle and unreasonable conduct toward his wife. It was not claimed that his insanity was of that type which is manifested in the paroxysmal or frenzied action of a maniac ; but that, in a more subdued form, his mind was dethroned. This distinction was not very prominently presented in the charge, and the omission so to do may possibly have misled the jury; yet it' is not so clear as to require us to say there was positive error therein. The assignments, from the 5th to the 25th inclusive, excluding the 9th, 21st, 22d, 23d and 24th, are designed to present this distinction. They cover objections to the form in which the question was put to the witnesses on the part of the Commonwealth. It was, “ Did you or did you not discover anything that led you to think he was insane?” It was contended the word “insane” implied a higher degree of mental alienation than was necessary to exculpate the prisoner, and that the form of the question indicated the answer desired. In view' of the fact that murder can be committed by none other than “a person of sound memory and discretion,” it may be that the better form would be, “ Was he of sound or unsound'mind?” Yet, inasmuch as the witnesses’ understanding of what constituted insanity, as well as what constituted unsound mind, can be ascertained on cross-examination, we do not see that the rights of the prisoner were prejudiced by the use of the word insane; nor do we think the question was so leading as to make it objectionable.
The disallowed question covered by the 9th assignment was put under these circumstances: The witness had testified in chief to his acquaintance with the prisoner; that he had seen him many times, and conversed with him, and did not discover anything which led him to believe the prisoner was insane. It did not appear that his attention had ever been called to observe or notice whether he was insane.
So on-cross-examination he was asked whether, from all he had related, he discovered anything on which he could base an opinion as to whether the prisoner was sane or insane. Avoiding any answer as to whether he discovered anything on which he could base an opinion that the prisoner was sane, he replied that he saw nothing which led him to believe the prisoner was insane. Then in view of the fact that, the witness’s attention had not been called to observe the condition of the prisoner’s mind, he was asked whether he saw enough, in his intercourse with the prisoner, to warrant him in expressing an opinion as to sanity or insanity. Substantially the question was whether he had scrutinized him with sufficient attention to form an intelligent opinion in regard to the condition of his mind. As the weight to be given to the opinion of the witness depended much on this fact, there was error in disallowing the question.
The 26th, 34th and 36th assignments present the question, to [268]*268what degree or extent must the insanity of the prisoner be proved in order to acquit him ? The court was asked to charge, “if the jury believe that at the time the homicide was committed the defendant was insane, he must be acquitted.” The court answered this in the affirmative as an abstract proposition, but added “that the jury must be satisfied by satisfactory and conclusive proof of the insanity of the defendant.”
That the proof of insanity must be satisfactory, and not merely doubtful, to justify an acquittal, is undoubtedly correct; but we do not know any case in which it has been held that it must be conclusive. To require it to be absolutely conclusive, is asking for too high a degree of certainty. It is not necessary that the proof of insanity should be so conclusive as to remove all doubt. It may be established by satisfactory and fairly preponderating evidence : Ortwein v. Commonwealth, 26 P. F. Smith 421; Lynch v. Same, 27 Id. 207; Brown v. Same, 28 Id. 123; Meyers v. Same, 2 Norris 131. It is contended on the part of the Commonwealth that, conceding the word “conclusive” is objectionable as thus used, yet, inasmuch as the court in several other parts of the charge said the evidence need be satisfactory only, the general effect of the charge did no injury to the prisoner. To this we answer, an examination shows the same objectionable language, substantially, used in other places. Thus in the portion of the charge covered by the 34th assignment, in commenting on the evidence tending to prove insanity, the court said: “ If made out beyond a reasonable doubt, it is a good defence and ought to acquit,” thereby clearly indicating that-any'less degree of proof was not sufficient.
Again, in the 36th assignment, after presenting the different kinds and phases of mental diseases, the court said, “Now, whether all or any of those conditions existed in the prisoner at the time of the killing, is simply a question of fact, to be established, if possible, by conclusive and satisfactory evidence.” The jury might have understood the court to here say that it was not possible to establish insanity otherwise than by conclusive evidence. The effect of the language we have quoted is so far modified by the use of appropriate language in other portions of the charge, that in a case not capital, we might not feel required to reverse. In this case, where the life of a human being is at stake, he has a right to demand that the case shall be submitted to the jury under no doubtful instruction on a vital question. It is impossible to tell whether the jury acted on the opinion that satisfactory and preponderating evidence was sufficient to establish insanity, or whether “conclusive” evidence so strong as to establish it “beyond a reasonable doubt” was necessary. These assignments are sustained.
The language of the court covered by the 35th assignment was certainly calculated to detract from the weight proper to be given to medical testimony. Much that was said in regard to such testi[269]*269mony was wholly unobjectionable, and entirely correct; but there was error in adding, “ yet in the case now trying we question very much whether you will realize much, if any, valuable aid from them in coming to a correct conclusion as regards the responsibility for crime by this prisoner.” Four medical witnesses had testified to the effect that the mind of the prisoner was unsound. They were all educated men, and of large experience in their profession. Two of them had resided near the father of the prisoner. They had knowledge of the mental disease of his mother, and had known the prisoner personally for several years. Their means of observing him and of forming an intelligent opinion as to the condition of his mind had been most ample. To their full observation as men, they had applied their scientific knowledge as experts, and testified to the result. The other two had testified as experts only, predicated on the assumed truthfulness of the facts testified to by others.
It is well settled that the knowledge and experience of medical experts is of great value in questions of insanity. They are like' those of experts in all other branches of science and of art. Evidence had been given of the observation, experience and skill of these medical experts, sufficient to enable them to form intelligent opinions, and they had testified to those opinions. We cannot understand on what principle the learned judge said to the jury that in this case he questioned very much whether they would realize much, if any, valuable aid from their testimony. True, the jury were not bound to adopt the conclusions of the experts ; yet they should have been instructed to give a careful consideration to the testimony of those who had made the diseases of the human mind a special study. In a former part of the charge the jury was told that “ great respect should be paid to the opinion of that class of witnesses,” followed by other remarks equally correct. Yet, when the court came to apply the testimony to the case trying, its effect was almost destroyed. We see no especial circumstances in this case to justify taking from the evidence of these medical witnesses that consideration to which the testimony of experts is generally entitled.
As the case is to go back for another trial, it is not necessary to discuss the assignment relating to the taking of the verdict, nor to matters subsequent thereto. In so far as the other assignments are not covered by what we have said, they are not sustained.
Judgment reversed and venire facias de novo awarded.