UHLENHOPP, Justice.
The principal question in this appeal relates to the burden of proof on the issue of the defendant’s sanity at the time he committed homicide. Iowa has been among the states which place the burden on the defendant to prove insanity, by commonlaw rule. State v. Booth, 169 N.W.2d 869 (Iowa).
Defendant Donald Eugene Thomas killed his wife. He was charged with murder and gave notice that he proposed to show insanity. See Code 1973, § 777.18. [4]*4At trial he introduced evidence on his mental condition at the time of the act. The State claims at the outset that the record does not contain sufficient evidence of insanity to raise a fact question, under the applicable test of sanity in M’Naghten’s Case, 10 Cl. & F. 200, 8 Eng. Rep. 718. The State is right that Iowa does not follow the scintilla rule. Volkswagen Iowa City, Inc. v. Scott’s Inc., 165 N.W.2d 789 (Iowa); Ehrhardt v. Ruan Transport Corp., 245 Iowa 193, 61 N.W.2d 696; In re Sinift’s Estate, 233 Iowa 800, 10 N.W.2d 550. But examination of the testimony reveals substantial evidence presenting a fact issue on insanity, although that evidence is not strong. Defendant is compelled to rely on nonexpert testimony on the issue. See Mims v. United States, 375 F.2d 135 (5 Cir.). Since substantial evidence appears, we must consider the legal issues defendant raises. They are two.
Defendant contends, first, that the trial court erred in placing on him the burden of proving he was insane when he killed his wife. The trial court so placed the burden on defendant in Instruction 14. The State claims defendant did not preserve error. In defendant’s exception to Instruction 14, however, he clearly alerted the trial court to his contention regarding the burden of proof. The trial court followed our past decisions and overruled the exception. Defendant’s first contention is properly before us.
Defendant contends, second, that the trial court misstated the M’Naghten rule. Here again the State claims defendant did not preserve error. This time the record reveals the State is right. Since however the case must be retried, we think we should decide this contention also.
I. Burden of Proof. Defendant relies heavily on and quotes copiously from Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499. That decision was founded upon principles of common law rather than constitutional law. Defendant also extensively argues the burden of proof issue from the standpoint of fairness and reason. We think the State was thus sufficiently apprised of what is .involved that we are warranted in considering the burden of proof issue as a question of common law, rather than as a question of constitutional law. We prefer to decide cases on nonconstitutional grounds when possible. City of Des Moines v. Lohner, 168 N.W.2d 779, 782 (Iowa) (“We do not consider constitutional questions unless it is necessary for the disposition of the case.”) ; 16 Am.Jur.2d Constitutional Law § 113 at 301; 16 C.J.S. Constitutional Law § 94 at 317 (“The principle that necessity of determination is a condition to judicial consideration of constitutional questions also finds application in the rule that such questions will not be passed on where the issues involved in the particular case may be decided on another ground, even though the constitutional issue has been properly presented.”). We proceed therefore to consideration of the burden of proof issue under common-law principles.
A large number of cases can be found holding that the defendant has the burden of proving insanity or, on the contrary, that the prosecutor has the burden of proving the defendant sane. The numerous arguments pro and con are stated at length in the opinions. A few of the cases are (burden on prosecutor) : Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (federal rule); Noelke v. State, 214 Ind. 427, 15 N.E.2d 950; Commonwealth v. Clark, 292 Mass. 409, 198 N.E. 641; Keeler v. State, 226 Miss. 199, 84 So.2d 153; State v. Miner, 128 Vt. 55, 258 A.2d 815; (burden on defendant) : State v. Peterson, 154 S.W.2d 134 (Mo.); State v. Tansimore, 3 N.J. 516, 71 A.2d 169; People v. DiPiazza, 24 N.Y.2d 342, 300 N.Y.S.2d 545, 248 N.E.2d 412; Commonwealth v. Zlatovich, 440 Pa. 388, 269 A.2d 469; Taylor v. Commonwealth, 208 Va. 316, 157 S.E.2d 185. See Annot. 17 A.L.R.3d 146.
[5]*5Upon careful reconsideration of the merits of this question, we conclude that the burden should be on the State to prove the defendant’s sanity beyond a reasonable doubt, for the reasons stated by the United States Supreme Court in Davis v. United States, supra. We think the State must not only establish the elements of the crime but, when the defendant’s capacity to commit the crime at all is drawn into question and substantial evidence appears in the record raising a fact issue under the M’Naghten test, the State must also establish the defendant’s sanity. As the Court stated in the Davis case:
Upon whom then must rest the burden of proving that the accused, whose life it is sought to take under the forms of law, belongs to a class capable of committing crime? On principle, it must rest on those who affirm that he has committed the crime for which he is indicted. That burden is not fully discharged, nor is there any legal right to take the life of the accused, until guilt is made to appear from all the evidence in the case. The plea of not guilty is unlike a special plea in a civil action, which, admitting the case averred, seeks to establish substantive grounds of defense by a preponderance of evidence. It is not in confession and avoidance, for it is a plea that controverts the existence of every fact essential to constitute the crime charged. Upon that plea the accused may stand, shielded by the presumption of his innocence, until it appears that he is guilty; and his guilt cannot in the very nature of things be regarded as proved, if the jury entertain a reasonable doubt from all the evidence whether he was legally capable of committing crime. 160 U.S. 485-486, 16 S.Ct. 357, 40 L.Ed. 505.
As the Court further points out in the Davis decision, however, this does not mean the prosecutor must in every case establish as part of his case that the defendant was sane. Involved here is the distinction between going forward with the evidence and the burden of persuasion. 9 Wigmore, Evidence, §§ 2485-2489 (3d ed.) ; McCormick, Evidence, § 336 (2d ed.). Involved also is the presumption of sanity. State v. Cooper, 195 Iowa 258, 191 N.W. 891. But if the defendant’s sanity is drawn in issue and substantial evidence appears in the record raising a fact question under the M’Naghten test — regardless of the source of that evidence — then the burden devolves upon the State to prove the defendant’s sanity beyond a reasonable, doubt by all the evidence in the case including the presumption of sanity.
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UHLENHOPP, Justice.
The principal question in this appeal relates to the burden of proof on the issue of the defendant’s sanity at the time he committed homicide. Iowa has been among the states which place the burden on the defendant to prove insanity, by commonlaw rule. State v. Booth, 169 N.W.2d 869 (Iowa).
Defendant Donald Eugene Thomas killed his wife. He was charged with murder and gave notice that he proposed to show insanity. See Code 1973, § 777.18. [4]*4At trial he introduced evidence on his mental condition at the time of the act. The State claims at the outset that the record does not contain sufficient evidence of insanity to raise a fact question, under the applicable test of sanity in M’Naghten’s Case, 10 Cl. & F. 200, 8 Eng. Rep. 718. The State is right that Iowa does not follow the scintilla rule. Volkswagen Iowa City, Inc. v. Scott’s Inc., 165 N.W.2d 789 (Iowa); Ehrhardt v. Ruan Transport Corp., 245 Iowa 193, 61 N.W.2d 696; In re Sinift’s Estate, 233 Iowa 800, 10 N.W.2d 550. But examination of the testimony reveals substantial evidence presenting a fact issue on insanity, although that evidence is not strong. Defendant is compelled to rely on nonexpert testimony on the issue. See Mims v. United States, 375 F.2d 135 (5 Cir.). Since substantial evidence appears, we must consider the legal issues defendant raises. They are two.
Defendant contends, first, that the trial court erred in placing on him the burden of proving he was insane when he killed his wife. The trial court so placed the burden on defendant in Instruction 14. The State claims defendant did not preserve error. In defendant’s exception to Instruction 14, however, he clearly alerted the trial court to his contention regarding the burden of proof. The trial court followed our past decisions and overruled the exception. Defendant’s first contention is properly before us.
Defendant contends, second, that the trial court misstated the M’Naghten rule. Here again the State claims defendant did not preserve error. This time the record reveals the State is right. Since however the case must be retried, we think we should decide this contention also.
I. Burden of Proof. Defendant relies heavily on and quotes copiously from Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499. That decision was founded upon principles of common law rather than constitutional law. Defendant also extensively argues the burden of proof issue from the standpoint of fairness and reason. We think the State was thus sufficiently apprised of what is .involved that we are warranted in considering the burden of proof issue as a question of common law, rather than as a question of constitutional law. We prefer to decide cases on nonconstitutional grounds when possible. City of Des Moines v. Lohner, 168 N.W.2d 779, 782 (Iowa) (“We do not consider constitutional questions unless it is necessary for the disposition of the case.”) ; 16 Am.Jur.2d Constitutional Law § 113 at 301; 16 C.J.S. Constitutional Law § 94 at 317 (“The principle that necessity of determination is a condition to judicial consideration of constitutional questions also finds application in the rule that such questions will not be passed on where the issues involved in the particular case may be decided on another ground, even though the constitutional issue has been properly presented.”). We proceed therefore to consideration of the burden of proof issue under common-law principles.
A large number of cases can be found holding that the defendant has the burden of proving insanity or, on the contrary, that the prosecutor has the burden of proving the defendant sane. The numerous arguments pro and con are stated at length in the opinions. A few of the cases are (burden on prosecutor) : Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (federal rule); Noelke v. State, 214 Ind. 427, 15 N.E.2d 950; Commonwealth v. Clark, 292 Mass. 409, 198 N.E. 641; Keeler v. State, 226 Miss. 199, 84 So.2d 153; State v. Miner, 128 Vt. 55, 258 A.2d 815; (burden on defendant) : State v. Peterson, 154 S.W.2d 134 (Mo.); State v. Tansimore, 3 N.J. 516, 71 A.2d 169; People v. DiPiazza, 24 N.Y.2d 342, 300 N.Y.S.2d 545, 248 N.E.2d 412; Commonwealth v. Zlatovich, 440 Pa. 388, 269 A.2d 469; Taylor v. Commonwealth, 208 Va. 316, 157 S.E.2d 185. See Annot. 17 A.L.R.3d 146.
[5]*5Upon careful reconsideration of the merits of this question, we conclude that the burden should be on the State to prove the defendant’s sanity beyond a reasonable doubt, for the reasons stated by the United States Supreme Court in Davis v. United States, supra. We think the State must not only establish the elements of the crime but, when the defendant’s capacity to commit the crime at all is drawn into question and substantial evidence appears in the record raising a fact issue under the M’Naghten test, the State must also establish the defendant’s sanity. As the Court stated in the Davis case:
Upon whom then must rest the burden of proving that the accused, whose life it is sought to take under the forms of law, belongs to a class capable of committing crime? On principle, it must rest on those who affirm that he has committed the crime for which he is indicted. That burden is not fully discharged, nor is there any legal right to take the life of the accused, until guilt is made to appear from all the evidence in the case. The plea of not guilty is unlike a special plea in a civil action, which, admitting the case averred, seeks to establish substantive grounds of defense by a preponderance of evidence. It is not in confession and avoidance, for it is a plea that controverts the existence of every fact essential to constitute the crime charged. Upon that plea the accused may stand, shielded by the presumption of his innocence, until it appears that he is guilty; and his guilt cannot in the very nature of things be regarded as proved, if the jury entertain a reasonable doubt from all the evidence whether he was legally capable of committing crime. 160 U.S. 485-486, 16 S.Ct. 357, 40 L.Ed. 505.
As the Court further points out in the Davis decision, however, this does not mean the prosecutor must in every case establish as part of his case that the defendant was sane. Involved here is the distinction between going forward with the evidence and the burden of persuasion. 9 Wigmore, Evidence, §§ 2485-2489 (3d ed.) ; McCormick, Evidence, § 336 (2d ed.). Involved also is the presumption of sanity. State v. Cooper, 195 Iowa 258, 191 N.W. 891. But if the defendant’s sanity is drawn in issue and substantial evidence appears in the record raising a fact question under the M’Naghten test — regardless of the source of that evidence — then the burden devolves upon the State to prove the defendant’s sanity beyond a reasonable, doubt by all the evidence in the case including the presumption of sanity. As stated conversely in the Davis case regarding the jury’s duty, “If the whole evidence, including that supplied by the presumption of sanity, does not exclude beyond reasonable doubt the hypothesis of insanity, of which some proof is adduced, the accused is entitled to an acquittal of the specific offense charged.” 160 U.S. 488, 16 S.Ct. 358, 40 L.Ed. 506. See State v. Thiele, 119 Iowa 659, 94 N.W. 256, and compare State v. Maharras, 208 Iowa 127, 224 N.W. 537 (evidence raised fact question on insanity) ; State v. Buck, 205 Iowa 1028, 219 N.W. 17, with State v. Brewer, 218 Iowa 1287, 254 N.W. 834 (evidence did not raise fact question); State v. Thomas, 172 Iowa 485, 154 N.W. 768.
We thus overturn our standing rule on this subject and sustain defendant’s first contention.
II. M’Naghten Rule. In Instruction 14 the trial court followed uniform instruction 501.17, II Iowa Uniform Jury Instructions (1970). In his second contention, defendant objects to the part of the following sentence in Instruction 14 which we have italicized:
In order to constitute a defense and justify an acquittal by reason of insanity the person who claims insanity as a defense must prove by a preponderance of the evidence that the act charged was caused by mental disease or unsoundness which dethroned, overcame or swayed his reason and judgment with respect to that act to the extent that it destroyed [6]*6his power rationally to comprehend the nature and consequences of his act, that is, to know that the particular act was wrongful.
Defendant insists that the M’Naghten test contains two elements which must be connected by the disjunctive — a defendant must be acquitted if the homicide was caused by mental disease or unsoundness which dethroned, overcame, and swayed his reason and judgment with respect to the act to the extent that it destroyed his power rationally to comprehend the nature and consequences of that act or to know that the act was wrong.
Defendant’s contention is not a mere play on words. The instruction given equates lack of comprehension of the nature and consequences of the act to lack of knowledge of wrongfulness. But defendant contends he is entitled to an acquittal even if he knew what he was doing if he did not know it was wrong, or vice versa.
Here again the trial court and the uniform instruction have decisional support. State v. Maharras, 208 Iowa 127, 130, 224 N.W. 537, 539 (“thereby destroying his power rationally to comprehend the nature and consequences of that act — that is, his ability to know and distinguish right from wrong — then he is not amenable to punishment”). Our later decisions, however, adopt as the proper view the one that defendant espouses, which follows M’Nagh-ten more closely. State v. Harkness, 160 N.W.2d 324 (Iowa); State v. Carstens, 182 N.W.2d 119 (Iowa). The words of Lord Chief Justice Tindal in M’Naghten’s Case are
that, at the time of committing the act, the party accused was labouring 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. 10 Cl. & F. 210, 8 Eng.Rep. 722.
We therefore sustain defendant’s second contention.
The rules adopted in this opinion apply only to:
1. The present case,
2. Cases tried hereafter, and
3. Cases in which proper objection was made on trial and which
(a) are now pending on direct appeal or
(b) can still timely be, and are, directly appealed.
Reversed.
MASON, RAWLINGS, REYNOLD-SON and McCORMICK, JJ., concur.
HARRIS, MOORE, C. J., LeGRAND- and REES, JJ., dissent.