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Opinion of the Court.
tion of all the evidence, there remained in their minds a reasonable doubt as to the existence of any of the necessary elements of each degree of homicide; and (5) not guilty by reason of insanity, if they found beyond a reasonable doubt that appellant was insane at the time of the offense charged. A finding of insanity would have freed appellant from responsibility for any of the possible offenses. The verdict which the jury determined-guilty of first degree murder-required the agreement of all twelve jurors; a verdict of not guilty by reason of insanity would have required the concurrence of only ten members of the panel."
It is apparent that the jury might have found appellant to have been mentally incapable of the premeditation and deliberation required to support a first degree murder verdict or of the intent necessary to find him guilty of either first or second degree murder, and yet not have found him to have been legally insane. Although a plea of insanity was made, the prosecution was required to prove beyond a reasonable doubt every element of the crime charged, including, in the case of first degree murder, premeditation, deliberation, malice and intent. The trial court repeatedly emphasized this requirement in its charge to the jury. Moreover, the judge directed the jury as follows:
“I instruct you that the evidence adduced during this trial to prove defendant's insanity shall be considered and weighed by you, with all other evidence,
5 The agreement of ten jurors would also have been sufficient for a verdict of not guilty, a verdict of guilty of second degree murder, or a verdict of guilty of manslaughter. R. 333-334.
6 Ore. Comp. Laws, 1940, $8 23-401, 23-414, 26-933; cf. State v. Butchek, 121 Ore: 141, 253 P. 367, 254 P. 805 (1927).
?R. 321, 323, 324, 330, 331, 332.
Opinion of the Court.
whether or not you find defendant insane, in regard to the ability of the defendant to premeditate, form a purpose, to deliberate, act wilfully, and act maliciously; and if you find the defendant lacking in such ability, the defendant cannot have committed the crime of murder in the first degree.
"I instruct you that should you find the defendant's mental condition to be so affected or diseased to the end that the defendant could formulate no plan, design, or intent to kill in cool blood, the defendant has not committed the crime of murder in
the first degree.' These and other instructions, and the charge as a whole, make it clear that the burden of proof of guilt, and of all the necessary elements of guilt, was placed squarely upon the State. As the jury was told, this burden did not shift, but rested upon the State throughout the trial, just as, according to the instructions, appellant was presumed to be innocent until the jury was convinced beyond a reasonable doubt that he was guilty. The jurors were to consider separately the issue of legal sanity per se—an issue
8 R. 330. Again:
"I instruct you that to constitute murder in the first degree, it is necessary that the State prove beyond a reasonable doubt, and to your moral certainty, that the defendant's design or plan to take life was formed and matured in cool blood and not hastily upon the occasion.
"I instruct you that in determining whether or not the defendant acted purposely and with premeditated and deliberated malice, it is your duty to take into consideration defendant's mental condition and all factors relating thereto, and that even though you may not find him legally insane, if, in fact, his mentality was impaired, that evidence be upon these factors, and it is your duty to consider this evidence along with all the other evidence in the case.” R. 332.
9R. 321, 324.
Opinion of the Court.
set apart from the crime charged, to be introduced by a special plea and decided by a special verdict. On this issue appellant had the burden of proof under the statute in question here.
By this statute, originally enacted in 1864," Oregon adopted the prevailing doctrine of the time—that, since most men are sane, a defendant must prove his insanity to avoid responsibility for his acts. That was the rule announced in 1843 in the leading English decision in M'Naghten's Case:
"[T]he jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and ... to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring 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
10 Ore. Comp. Laws, 1940, $ 26–846 (requiring notice of purpose to show insanity as defense); id., $ 26-955 (providing for verdict of not guilty by reason of insanity and consequent commitment to asylum by judge). After defining legal insanity, the trial court instructed the jury:
“In this case, evidence has been introduced relating to the mental capacity and condition of the defendant ... at the time [the girl] is alleged to have been killed, and if you are satisfied beyond a reasonable doubt that the defendant killed her in the manner alleged in the indictment, or within the lesser degrees included therein, then you are to consider the mental capacity of the defendant at the time the homicide is alleged to have been committed.” R. 327 (emphasis supplied).
11 Deady's Gen. Laws of Ore., 1845–1864, Code of Crim. Proc., § 204.
12 10 Cl. & Fin. 200, 210 (H. L., 1843).
Opinion of the Court.
This remains the English view today.13 In most of the nineteenth-century American cases, also, the defendant was required to "clearly” prove insanity,14 and that was probably the rule followed in most states in 1895,15 when Davis v. United States was decided. In that case this Court, speaking through Mr. Justice Harlan, announced the rule for federal prosecutions to be that an accused is "entitled to an acquittal of the specific crime charged if upon all the evidence there is reasonable doubt whether he was capable in law of committing crime.” 16 In reaching that conclusion, the Court observed:
“The views we have expressed are supported by many adjudications that are entitled to high respect. If such were not the fact, we might have felt obliged to accept the general doctrine announced in some of the above cases; for it is desirable that there be uniformity of rule in the administration of the criminal law in governments whose constitutions equally recognize the fundamental principles that are deemed
essential for the protection of life and liberty." The decision obviously establishes no constitutional doctrine, but only the rule to be followed in federal courts. As such, the rule is not in question here.
13 Stephen, Digest of the Criminal Law (9th ed., Sturge, 1950), 6; cf. Sodeman v. The King,  W. N. 190 (P. C.); see Woolmington v. Director of Public Prosecutions,  A. C. 462, 475.
14 Weihofen, Insanity as a Defense in Criminal Law (1933), 151155. “Clear proof” was sometimes interpreted to mean proof beyond a reasonable doubt, e. g., State v. De Rancé, 34 La. Ann. 186 (1882), and sometimes to mean proof by a preponderance of the evidence, e. g., Hurst v. State, 40 Tex. Cr. R. 383, 50 S. W. 719 (1899).
15 See Wharton, Criminal Evidence (9th ed. 1884), $$ 336-340.
16 160 U. S. 469, 484 (1895); see Hotema v. United States, 186 U. S. 413 (1902); Matheson v. United States, 227 U. S. 540 (1913).
17 Id., at 488.
Opinion of the Court.
Today, Oregon is the only state that requires the accused, on a plea of insanity, to establish that defense beyond a reasonable doubt. Some twenty states, however, place the burden on the accused to establish his insanity by a preponderance of the evidence or some similar measure of persuasion. While there is an evident distinction between these two rules as to the quantum of proof required, we see no practical difference of such magnitude as to be significant in determining the constitutional question we face here. Oregon merely requires a heavier burden of proof. In each instance, in order to establish insanity as a complete defense to the charges preferred, the accused must prove that insanity. The fact that a practice is followed by a large number of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U. S. 97, 105 (1934).
Nor is this a case in which it is sought to enforce against the states a right which we have held to be secured to defendants in federal courts by the Bill of Rights. In Davis v. United States, supra, we adopted a rule of procedure for the federal courts which is contrary to that of
18 Weihofen lists twelve states as requiring proof by a preponderance of the evidence, four as requiring proof "to the satisfaction of the jury,” two which combine these formulae, one where by statute the defense must be "clearly proved to the reasonable satisfaction of the jury,” one where it has been held that the jury must "believe” the defendant insane, and one where the quantum of proof has not been stated by the court of last resort, but which appears to follow the preponderance rule. Weihofen, Insanity as a Defense in Criminal Law (1933), 148–151, 172–200. Twenty-two states, including Oregon, are mentioned as holding that the accused has the burden of proving insanity, at least by a preponderance of the evidence, in 9 Wigmore, Evidence (3d ed. 1940 and Supp. 1951), $ 2501.