George, J.
The ruling in the fifth headnote requires elaboration. The defendant was tried for the murder of his wife, whs found guilty without recommendation, and is now under sentence of death. The case, on its facts, is an unusual one. The evidence for the State tended to show that the defendant had, without cause, become jealous and suspicious of his wife. He ordered her to leave the home at Milledgeville and return to her father’s house in Macon county. On the morning of the homicide he arose, dressed himself as usual, and attended to his usual duties. He abused his wife, and she through fear of him fled to the home of a neighbor. The defendant and his two brothers .had a long conference, after which he went to the home in which his wife had sought refuge and asked to see her. She consented to see him on condition that he was unarmed. He went into the room where his wife, with baby in her arms, was seated in a chair. He demanded that she go to her father’s home that day, and she refused to go until she could get her money out of the property. According to one of the eye-witnesses: “They also disagreed in reference to a set of furniture. He offered to give her the old set of furniture, and she contended for the new set, and he told her she could not have it. When he was talking to her about going home he was in a very angry mood. . . His wife told him she couldn’t get ■ready to go that day. He wanted to put her on this ten o’clock Georgia train that morning.” The wife finally declined to go immediately, and gave reasons for so declining; whereupon the defendant shot her with a pistol, and as she fell to the floor he shot her again. His brothers were present. As indicated in the fourth headnote, the defendant offered no evidence. He relied [37] upon his statement. The homicide was admitted. The statement of the defendant covers sixty pages of typewritten matter.' It is in form a coherent, recital of his life’s history, with especial attention to the details of his married life. Throughout the statement emphasis is laid upon his implicit confidence in his wife until a short time prior to the homicide. Shortly .before the homicide his wife’s brother visited his home; and the defendant, with or without reason, conceived the idea that the relations between the wife and her own brother were of an immoral nature. In his statement he set out in detail the facts upon which this conclusion was based, and insisted that his conclusion was well founded. He also claimed to have communicated the facts to the father of the wife, and his father-in-law visited him at Milledgeville and apparently succeeded in bringing about a temporary reconeilation between the defendant and his wife. Shortly after the father returned to his home the defendant discovered, according to his statement, that his wife was continuing her immoral relations with her brother and certain men in the community. He undertook to persuade his wife to return to her father, she refused to do so, and he took her life. His attitude toward the crime (judging from the substance of the statement, from the utter improbability of the things stated, rather than from the manner and form of the statement) was that in taking the life of his wife he had performed a duty to himself, to his children, to mankind, and to God. He did not concede the possibility of a mistake upon his part, but his contention was that the facts were as he had stated them, and that he had acted upon real rather than imaginary reasons. The evidence for the State shows that the wife’s brother, before the homicide, had left Milledgeville, and at the time of the killing he was in the Hnited States army. The defendant was a man of good character, and had been employed in responsible positions. A plea of present insanity was at first filed for the defendant, and a trial had before a jury. The verdict was against the plea, and the. defendant excepted. The judgment was reversed. Polk v. State, 18 Ga. App. 324 (89 S. E. 437). A second jury also found against the plea, and on exception the judgment was affirmed. Polk v. State, 19 Ga. App. 332 (91 S. E. 439). Upon the trial of the accused for murder, the jury found against his plea of insanity at the time of the cgmmission of the homicide; and while [38] the issue has thus been settled against him, the quotation from Bishop in headnote 1 (a) is employed merely to sustain a legal principle.
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George, J.
The ruling in the fifth headnote requires elaboration. The defendant was tried for the murder of his wife, whs found guilty without recommendation, and is now under sentence of death. The case, on its facts, is an unusual one. The evidence for the State tended to show that the defendant had, without cause, become jealous and suspicious of his wife. He ordered her to leave the home at Milledgeville and return to her father’s house in Macon county. On the morning of the homicide he arose, dressed himself as usual, and attended to his usual duties. He abused his wife, and she through fear of him fled to the home of a neighbor. The defendant and his two brothers .had a long conference, after which he went to the home in which his wife had sought refuge and asked to see her. She consented to see him on condition that he was unarmed. He went into the room where his wife, with baby in her arms, was seated in a chair. He demanded that she go to her father’s home that day, and she refused to go until she could get her money out of the property. According to one of the eye-witnesses: “They also disagreed in reference to a set of furniture. He offered to give her the old set of furniture, and she contended for the new set, and he told her she could not have it. When he was talking to her about going home he was in a very angry mood. . . His wife told him she couldn’t get ■ready to go that day. He wanted to put her on this ten o’clock Georgia train that morning.” The wife finally declined to go immediately, and gave reasons for so declining; whereupon the defendant shot her with a pistol, and as she fell to the floor he shot her again. His brothers were present. As indicated in the fourth headnote, the defendant offered no evidence. He relied [37] upon his statement. The homicide was admitted. The statement of the defendant covers sixty pages of typewritten matter.' It is in form a coherent, recital of his life’s history, with especial attention to the details of his married life. Throughout the statement emphasis is laid upon his implicit confidence in his wife until a short time prior to the homicide. Shortly .before the homicide his wife’s brother visited his home; and the defendant, with or without reason, conceived the idea that the relations between the wife and her own brother were of an immoral nature. In his statement he set out in detail the facts upon which this conclusion was based, and insisted that his conclusion was well founded. He also claimed to have communicated the facts to the father of the wife, and his father-in-law visited him at Milledgeville and apparently succeeded in bringing about a temporary reconeilation between the defendant and his wife. Shortly after the father returned to his home the defendant discovered, according to his statement, that his wife was continuing her immoral relations with her brother and certain men in the community. He undertook to persuade his wife to return to her father, she refused to do so, and he took her life. His attitude toward the crime (judging from the substance of the statement, from the utter improbability of the things stated, rather than from the manner and form of the statement) was that in taking the life of his wife he had performed a duty to himself, to his children, to mankind, and to God. He did not concede the possibility of a mistake upon his part, but his contention was that the facts were as he had stated them, and that he had acted upon real rather than imaginary reasons. The evidence for the State shows that the wife’s brother, before the homicide, had left Milledgeville, and at the time of the killing he was in the Hnited States army. The defendant was a man of good character, and had been employed in responsible positions. A plea of present insanity was at first filed for the defendant, and a trial had before a jury. The verdict was against the plea, and the. defendant excepted. The judgment was reversed. Polk v. State, 18 Ga. App. 324 (89 S. E. 437). A second jury also found against the plea, and on exception the judgment was affirmed. Polk v. State, 19 Ga. App. 332 (91 S. E. 439). Upon the trial of the accused for murder, the jury found against his plea of insanity at the time of the cgmmission of the homicide; and while [38] the issue has thus been settled against him, the quotation from Bishop in headnote 1 (a) is employed merely to sustain a legal principle.
Upon the last trial the court charged the jury that “the law presumes every man sane until it is made to appear, to the contrary, that he is insane or of unsound mind. And if a man files that plea, the burden is on him to make it appear to the satisfaction of the jury, it ought to be made to appear to a reasonable certainty, that at the time of the commission of the act, if any, he did not know the nature and quality of the act, or, if he did know, he did not know the act was wrong.” This charge was excepted to upon the ground that it placed upon the defendant a greater burden than the law requires; that the defendant is required to show his insanity by a preponderance of evidence only. This precise charge was given in Danforth v. State, 75 Ga. 615 (58 Am. R. 480). In Beck v. State, 76 Ga. 452, the 7th headnote'is as follows: “There was no error in charging that the law presumes every person to be of sound mind, and the burden is upon the defendant to satisfy the jury, by evidence, to a reasonable certainty that he was not of sound mind at the time of the eommissiQn of the act.” There was no assignment of error either in the Danforth case or the Beck ease raising the precise question here presented. The point there made was that the burden was upon the State to prove the defendant’s sanity, rather than upon the defendant to show his insanity. - The headnotes in the Beck case were made by the reporter, and there is nothing in the opinion of the court to sustain the 7th note, just quoted, on the precise question here made. In Carter v. State, 56 Ga. 463, 467, Warner, Chief Justice, said: “Inasmuch as the law presumes, for the safety of society, that every person is of sound mind until the contrary appears, therefore that presumption should be rebutted by a preponderance of evidence of insanity at the time the offense is alleged to have been committed. Unless there is a preponderance of evidence in favor of the insanity of the defendant, the jury would not be authorized to acquit him of the offense with which he is charged, on that ground of his defense.” The rule there announced was expressly approved and followed in Danforth v. State, supra, Carr v. State, 96 Ga. 284 (5), 285 (22 S. E. 570), Ryder v. State, 100 Ga. 528 (5), 529 (28 S. E. 246, 38 L. R. A. 721, 62 [39] Am. St. R. 334), Minder v. State, 113 Ga. 772 (3), 774 (39 S. E. 284), and Allams v. State, 123 Ga. 500 (51 S. E. 506). The rale is settled beyond controversy in this State that where the defense of insanity at the time of the commission of the act is relied upon, the burden is upon the defendant to show his insanity by a preponderance of the evidence. In Minder’s case, supra, the court charged the jury that when the accused relies upon the defense of insanity he must prove the truth of his defense to a “reasonable certainty.” It was there said: “While the court did use the expression quoted, the charge clearly indicates that it was used as the equivalent of the expression ‘preponderance of the evidence/ for in another part of the charge the judge instructed the jury that if the accused ‘proved his insanity to a reasonable certainty by a preponderance of the testimony in the ease/ the jury will be authorized to acquit.” It was ruled that the expression “reasonable certainty,” the whole charge considered, did not mislead the jury, “even if reasonable certainty would require a higher degree of mental conviction than that brought about by a preponderance of the evidence.” Cf. Austin v. State, 6 Ga. App. 211 (64 S. E. 670); Bone v. State, 102 Ga. 390 (30 S. E. 845); Warren v. Gay, 123 Ga. 245 (51 S. E. 302); Cole v. State, 125 Ga. 276 (53 S. E. 958). The charge excepted to was erroneous. As before pointed out, the sole defense was insanity at the time of the commission of the homicide. No evidence, whatever, was offered to show the insanity of the defendant at the time of the commission of the homicide, and he relied upon his statement alone. While the jury might consider his statement upon this defense, as well as any other defense interposed by him, there is nothing in the statement itself to show his insanity, except the inherent improbability of the matters and things stated by him as facts, the peculiarly atrocious circumstances of the homicide, and the apparent lack of mitigating circumstances. The statement was made about two years after the homicide. It is not quite clear how the jury could have found, from the statement alone, that the defendant was insane at the time of the homicide. In other parts of the charge the court expressly submitted to the jury the defense of general and delusional insanity. He also cautioned the jury that the burden was upon the State to satisfy the minds of the jury of the defendant’s guilt to a reasonable and moral certainty and beyond [40] a reasonable doubt. He instructed the jury: “Therefore you look to the evidence in the ease and see, at the time this act, if any, was committed, whether the accused had sufficient mind, or reason, or mental capacity to know that the act was wrong. . . If he did not, then he is not responsible to the law, and ought not to be, because the law does not allow’an insane man to be convicted, or a man who has not sufficient capacity to have a criminal intent to be convicted.” At the conclusion of his charge he cautioned the jury: “If after a full, fair, and honest examination of this evidence in connection with the defendant’s statement, your minds are unsettled, unsatisfied, do not know what the truth about it is, then that is what is called a reasonable doubt in law, and you shall give him the benefit of that reasonable doubt and acquit him.” The error in the charge of the court pointed out above is not, the whole record considered, cause for reversal.
Judgment affirmed.
All the Justices concur, except Fish, O. J., absent.