ZaNE, O. J. :
The defendant was tried upon an indictment charging him with murder, and the jury found him guilty of voluntary manslaughter. The court overruled a motion by him for a new trial, and sentenced him to confinement in the penitentiary for the term of nine years. To the order overruling the motion for a new trial and to entering judgment on the verdict the appellant excepted and assigns the same as error. The commission of the homicide was proven by the witnesses introduced on behalf of the prosecution, without any evidence to reduce the killing to manslaughter or to justify or excuse it. The defendant relied upon insanity as a defense, and offered evidence to prove it; and the prosecution offered evidence upon the issue to disprove insanity, and tending to show sanity. Before the jury were charged, counsel of the respective [94]*94parties said to the court that they regarded it as proper to charge the jury upon the law of manslaughter as well as upon the law of murder. But the ■ same counsel now insist that, if the defense of insanity was not proven, the evidence showed the defendant guilty of murder, and that there was no evidence to support a conviction of manslaughter. The jurors may have believed that conduct of defendant relied upon as indicating insanity was referable to intoxication (evidence of which was offered on, the trial); that his mind was so affected with liquor as to raise a reasonable doubt of the premeditation essential to murder. If the killing was intentional and unlawful, and wholly from passion inflamed by intoxication, and from an imaginary insult, and without that degree of thought essential to malice, he was guilty of voluntary manslaughter. And we are not prepared to hold that there was no evidence of such a state of mind at the time of the fatal injury. Further’, the jury having found the issue of insanity against the appellant, his counsel cannot be heard to complain because he was not found guilty of murder instead of manslaughter. It appears from the record that the evidence introduced by the prosecution established the homicide without any proof of insanity or of justification or excuse; that the defendant relied upon insanity as a defense and offered evidence on that issue to prove it; that the plaintiff offered evidence to disprove it; that considerable of evidence was introduced on either side, of the issue; and that the court charged the jury that the defendant relied upon insanity as an affirmative defense; and that the burden was uj)on him to prove it by a preponderance of the evidence; and that to the announcement to the jury of this legal proposition the defendant’s counsel excepted. The law of ■this Territory is: “Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation or that [95]*95justify or excuse it devolves upon liim, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.” 2 Comp. Laws, 1888, § 5044. The authority of the legislature to enact such a law is undoubted; the intent is manifest; there is no room for construction, and the courts must respect the law. The obvious intention of the legislature was that proof of the killing, without evidence in mitigation or that tends to justify or excuse it, imposes upon the defendant the burden of furnishing such proof. Otherwise. stated, when the prosecution proves the homicide without more the defendant must prove any fact that he sets up as an affirmative defense, and that such fact is not proved when the evidence offered on one side of the issue in its support, when weighed against the evidence on the other side of the issue, and against it, only raises a reasonable doubt of the fact in issue, or when the evidence offered for and against it only balances. This statute includes all affirmative defenses, and therefore it embraces the defense of insanity. Without a statute on the subject, the law would presume sanity, and the burden would be on the defendant to prove it.
As to the proof of insanity in a criminal case the authorities are conflicting. Some require the defendant’s insanity to be proven beyond a reasonable doubt; others hold that any evidence of insanity by him imposes upon the plaintiff the burden of proving sanity beyond a reasonable doubt; but a majority of the cases decide that the affirmative of the issue must be proven by a preponderance of the evidence. In People v. Tidwell, 4 Utah, 506, 12 Pac. Rep. 61, the court held that the statute above quoted established the rule as last stated. Chief Justice Shaw, in a very elaborate opinion, and after a careful consideration of the question in the light of authority and reason, says: “I have thus endeavored to establish the [96]*96proposition, and it seems to be most abundantly proved, that when the fact of voluntary homicide is shown, and this not accompanied with any fact or excuse or extenuation, malice is inferred from the act; that this is a fact which may be controlled by proof; but the proof of it lies on the defendant, and, if not so proved, it cannot be taken into judicial consideration. This is expressed in a variety of forms, a variety so great as to preclude the supposition that it depends upon a form of words or mode of expression transmitted by one writer or jurist to another, but recognized for a long series of years as a rule of judicial decision founded on the principles of evidence, and con-firrped by a long course of practice. * * * It is hardly necessary to cite authorities to the very familiar principle that when a fact is to be proved it must be by evidence sufficient to lead a jury to believe it to be true, and that for this purpose it must outweigh or overbalance the evidence which it is brought to control. * * * The proof establishing the necessity for such taking of life in self-defense must be satisfactorily made out. Eaising a doubt would be insufficient.” Com. v. York, 9 Metc. (Mass.) 93. The Utah statute above quoted was taken from the Code of California after the supreme court of .that State had decided that it required circumstances of mitigation or of justification or excuse to be proven by a preponderance of evidence when the homicide is established by the prosecution without evidence tending to prove such mitigation, justification or excuse. People v. Milgate, 5 Cal. 127; People v. Stonecifer, 6 Cal. 405; People v. Arnold, 15 Cal. 476. The same court has affirmed these earlier cases by more recent decisions. Mr. Justice Field in his charge to the jury in the case of U. S. v. Outerbridge, 5 Sawy. 497, said: “If there are any circumstances of excuse or palliation which will rebut the implication of malice, it is incumbent upon him to show them. The burden of proof rests upon him, for the law presumes that every [97]*97person intends to produce the results which are the usual consequences of his acts.” In People v. Schryver, Earl, C. J., said: “We must produce the same degree of proof that would be required if the blow inflicted had not produced death, and he had been sued for assault and battery, and had set up a justification. When a man takes human life, upon which the law sets a high value, it is not sufficient for him to raise a reasonable doubt whether he was justified or not, but he must go one step further, and give satisfactory evidence that he was justified. This rule is sufficiently humane to the prisoner, and at the same time gives some protection to human, life.” 42 N. Y. 1. In the case of State v.
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ZaNE, O. J. :
The defendant was tried upon an indictment charging him with murder, and the jury found him guilty of voluntary manslaughter. The court overruled a motion by him for a new trial, and sentenced him to confinement in the penitentiary for the term of nine years. To the order overruling the motion for a new trial and to entering judgment on the verdict the appellant excepted and assigns the same as error. The commission of the homicide was proven by the witnesses introduced on behalf of the prosecution, without any evidence to reduce the killing to manslaughter or to justify or excuse it. The defendant relied upon insanity as a defense, and offered evidence to prove it; and the prosecution offered evidence upon the issue to disprove insanity, and tending to show sanity. Before the jury were charged, counsel of the respective [94]*94parties said to the court that they regarded it as proper to charge the jury upon the law of manslaughter as well as upon the law of murder. But the ■ same counsel now insist that, if the defense of insanity was not proven, the evidence showed the defendant guilty of murder, and that there was no evidence to support a conviction of manslaughter. The jurors may have believed that conduct of defendant relied upon as indicating insanity was referable to intoxication (evidence of which was offered on, the trial); that his mind was so affected with liquor as to raise a reasonable doubt of the premeditation essential to murder. If the killing was intentional and unlawful, and wholly from passion inflamed by intoxication, and from an imaginary insult, and without that degree of thought essential to malice, he was guilty of voluntary manslaughter. And we are not prepared to hold that there was no evidence of such a state of mind at the time of the fatal injury. Further’, the jury having found the issue of insanity against the appellant, his counsel cannot be heard to complain because he was not found guilty of murder instead of manslaughter. It appears from the record that the evidence introduced by the prosecution established the homicide without any proof of insanity or of justification or excuse; that the defendant relied upon insanity as a defense and offered evidence on that issue to prove it; that the plaintiff offered evidence to disprove it; that considerable of evidence was introduced on either side, of the issue; and that the court charged the jury that the defendant relied upon insanity as an affirmative defense; and that the burden was uj)on him to prove it by a preponderance of the evidence; and that to the announcement to the jury of this legal proposition the defendant’s counsel excepted. The law of ■this Territory is: “Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation or that [95]*95justify or excuse it devolves upon liim, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.” 2 Comp. Laws, 1888, § 5044. The authority of the legislature to enact such a law is undoubted; the intent is manifest; there is no room for construction, and the courts must respect the law. The obvious intention of the legislature was that proof of the killing, without evidence in mitigation or that tends to justify or excuse it, imposes upon the defendant the burden of furnishing such proof. Otherwise. stated, when the prosecution proves the homicide without more the defendant must prove any fact that he sets up as an affirmative defense, and that such fact is not proved when the evidence offered on one side of the issue in its support, when weighed against the evidence on the other side of the issue, and against it, only raises a reasonable doubt of the fact in issue, or when the evidence offered for and against it only balances. This statute includes all affirmative defenses, and therefore it embraces the defense of insanity. Without a statute on the subject, the law would presume sanity, and the burden would be on the defendant to prove it.
As to the proof of insanity in a criminal case the authorities are conflicting. Some require the defendant’s insanity to be proven beyond a reasonable doubt; others hold that any evidence of insanity by him imposes upon the plaintiff the burden of proving sanity beyond a reasonable doubt; but a majority of the cases decide that the affirmative of the issue must be proven by a preponderance of the evidence. In People v. Tidwell, 4 Utah, 506, 12 Pac. Rep. 61, the court held that the statute above quoted established the rule as last stated. Chief Justice Shaw, in a very elaborate opinion, and after a careful consideration of the question in the light of authority and reason, says: “I have thus endeavored to establish the [96]*96proposition, and it seems to be most abundantly proved, that when the fact of voluntary homicide is shown, and this not accompanied with any fact or excuse or extenuation, malice is inferred from the act; that this is a fact which may be controlled by proof; but the proof of it lies on the defendant, and, if not so proved, it cannot be taken into judicial consideration. This is expressed in a variety of forms, a variety so great as to preclude the supposition that it depends upon a form of words or mode of expression transmitted by one writer or jurist to another, but recognized for a long series of years as a rule of judicial decision founded on the principles of evidence, and con-firrped by a long course of practice. * * * It is hardly necessary to cite authorities to the very familiar principle that when a fact is to be proved it must be by evidence sufficient to lead a jury to believe it to be true, and that for this purpose it must outweigh or overbalance the evidence which it is brought to control. * * * The proof establishing the necessity for such taking of life in self-defense must be satisfactorily made out. Eaising a doubt would be insufficient.” Com. v. York, 9 Metc. (Mass.) 93. The Utah statute above quoted was taken from the Code of California after the supreme court of .that State had decided that it required circumstances of mitigation or of justification or excuse to be proven by a preponderance of evidence when the homicide is established by the prosecution without evidence tending to prove such mitigation, justification or excuse. People v. Milgate, 5 Cal. 127; People v. Stonecifer, 6 Cal. 405; People v. Arnold, 15 Cal. 476. The same court has affirmed these earlier cases by more recent decisions. Mr. Justice Field in his charge to the jury in the case of U. S. v. Outerbridge, 5 Sawy. 497, said: “If there are any circumstances of excuse or palliation which will rebut the implication of malice, it is incumbent upon him to show them. The burden of proof rests upon him, for the law presumes that every [97]*97person intends to produce the results which are the usual consequences of his acts.” In People v. Schryver, Earl, C. J., said: “We must produce the same degree of proof that would be required if the blow inflicted had not produced death, and he had been sued for assault and battery, and had set up a justification. When a man takes human life, upon which the law sets a high value, it is not sufficient for him to raise a reasonable doubt whether he was justified or not, but he must go one step further, and give satisfactory evidence that he was justified. This rule is sufficiently humane to the prisoner, and at the same time gives some protection to human, life.” 42 N. Y. 1. In the case of State v. Lewis, 20 Nev. 333, 22 Pac. Rep. 241, the court held that, upon principle, as well as upon the weight of authority, the burden is upon the defendant who sets up insanity of proving it by a preponderance of the evidence. The court supports its conclusion with abundant authority. Upon this issue the law presumes sanity beyond a reasonable doubt, and to create a reasonable doubt of it evidence of insanity is necessary.
It is easy to ascertain exactly the relative weight of material things. If the weight at one end of the beam is heavier than the weight at the other, the indication is apparent and unmistakable. But it is not so easy to compare the weight of evidence on opposite sides of an issue; but, nevertheless, the law makes it the duty of courts and jurors, in the investigation of truth, to ascertain the relative weight of proof on opposite sides of an issue with such certainty as the capacities of the minds of men enable them to do. If the prosecution offers as much evidence of sanity as the defendant does of insanity, the proof on the one side balances the proof on the other, and the presumption of sanity beyond a reasonable doubt has no evidence to weigh against it. Unless the evidence of insanity exceeds that of sanity offered upon the issue, [98]*98there is no proof to counteract the presumption of sanity beyond a reasonable doubt. Before any evidence as to insanity the law presumes sanity, and, if the evidence of the prosecution without that presumption equals the evidence of the defendant, it is as though no evidence had been offered on the issue, and the presumption of sanity beyond a reasonable doubt remains. The rule does not require the evidence of insanity to preponderate over both the evidence of sanity and the legal presumption of sanity considered together; it simply requires the evidence of insanity to exceed that given of sanity, .and that excess counteracts the presumption of the law to the extent of raising a reasonable doubt of sanity. The difficulty is to compare the evidence upon the issue given on one side of it with the evidence given on the other, separately and distinctly from the presumption of the law, and to discover whether 'there is any excess in favor of insanity to raise a reasonable doubt of the sanity that ■ the law infers. The jury cannot acquit the defendant because of insanity unless the evidence upon the issue preponderates against sanity. After charging the jury as to the burden of proof upon the issue of insanity, it is the duty of the court to say to them that if, upon the whole evidence, they have a reasonable doubt of the defendant’s guilt, it is their duty to acquit him. The court on the trial of this cause charged the jury “ that the burden of proving insanity was on the defendant, and that he was required to prove it to the satisfaction of the jury by a preponderance of the evidence, but that he was not required to establish it beyond a reasonable doubt; * * * that, where the burden is upon the defendant to establish his defense, it is only by a preponderance of the evidence; * * * that the defendant is presumed to be innocent until proven guilty beyond a reasonable doubt, and that this presumption applies to, every fact necessary to the crime, and that, if any one of them is [99]*99not proven beyond a reasonable doubt, the jury should acquit.” In this the court charged the jury that insanity was an affirmative defense, and that the burden was on him of proving it by a preponderance of the evidence. This was proper, inasmuch as the homicide was established by the prosecution without any evidence tending to prove insanity. The jury was also charged, upon the whole case, that the law presumed the defendant innocent until proven guilty beyond a reasonable doubt. The jury did not find that the killing was malicious, but they must have believed that it was intentional and unlawful, in order to find the defendant guilty of voluntary manslaughter. The charge to the jury is a very long one, and some of its propositions were not accurately stated, but, when all of them are considered together, we are of the opinion that it was substantially correct. We find no error in the .record. The judgment of the court below is affirmed.
ANDERSON, J., concurred.