majority">Stanford, J.

The respondent was indicted and convicted for an assault with a dangerous weapon, with intent to' kill and murder, made on the 6th day of February, 1898, upon Thomas *281Corcoran. The State’s evidence tended to- show' that Corcoran was driving a team- with a pair of traverse-sleds, and wood-rack upon the sleds, past the house where the respondent lived, when the latter came out of the house with a revolver in his hancf, got upon the back part of the sled and walked towards the front, where Corcoran was standing, threatening to shoot him.; that, as respondent thus approached him-, Corcoran pulled out a sled-stake, knocked the respondent down upon the rack, and, as he was trying to rise, knocked him down again, and after passing along the highway a rod or two- threw him off, and left him lying beside the road unconscious. The respondent’s evidence tended to show that he had no- revolver and made no assault; that as he started out -of the house, which is very near the road, he came immediately alongside- Corcoran’s sled on hi's way to the barn; that a young man, Whalen, who. was on the sled with Corcoran, grabbed him and pulled him over onto- the rack; whereupon Corcoran struck the respondent two o-r three times with the stake, and then, as he drove along, threw him off beside the road; that his head was badly cut and he remained unconscious o-r half conscious for several hours. His counsel claimed, and his evidence tended to- show, that he was insane both at the time of the affray and at the time of the trial. He went to- trial without any counsel and had none until the latter part of the first day, after the jury had been empanelled and several witnesses examined, the court having refused to assign counsel to- defend him at the expense of the State upon finding that he had sufficient means. No trial was had o-r asked for upon the question of the respondent’s capacity^ to- be tried. During the trial he frequently muttered, to- himself and aloud, things relevant and irrelevant; would get up and attempt to walk about the court room- or to leave it, and make incoherent remarks; and was at times apparently delirio-us and frenzied, and had to- be restrained by fo-rce. The State introduced evi*282dence in the opening, as well as in rebuttal, tending to show that he was not insane, either at the time of the assault or at the time of the trial. After counsel for respondent came into the case the court inquired, in view of one cross-examination, whether they claimed insanity as a defense; to which they replied, “We do not at this point.” Dater, although insanity was claimed as a defense, no claim was made that the law was such that the respondent could not then be tried or convicted because he was then insane, until exceptions were taken to the charge; neither did counsel state that they did not so claim.

The state’s evidence tended to' show that the respondent fled soon after the assault and was not seen about there for a year, and that when he was finally arrested he pretended to be sick, and tried to escape by leaving his bed, jumping out of the window, and running through the fields. In its charge the court told the jury that, if he was shamming sickness or insanity, that might be taken as evidence of guilt and that they should consider his condition all along, down to and at the trial, as bearing upon this question; but that, SO' far as the question of insanity was concerned, they should return a verdict of guilty, even though they were satisfied he was insane at the time of the trial, provided he was sane when he committed the assault. To this the respondent excepted on the ground that an insane person cannot legally be tried or convicted.

While it is true that an insane person, — that is, one incapable of making his defense by reason of insanity' — cannot be put on trial, the cases seem to: hold that the question of present sanity is, at least in the first instance, for the court; that, if the judge has any reasonable doubt about it, he should have it determined by a preliminary trial of some sort, either by himself, or by a jury called for that purpose, or, as a preliminary question, by the jury sworn to try the main case. Different methods are adopted in different jurisdictions, but the authorities *283appear to be unanimous in holding that when the court, in the exercise of a sound discretion, entertains no doubt of the prisoner’s sanity, no* preliminary trial is required. In the present case no suggestion was made that such a trial was desired, no request was made that the question be submitted to the jury or determined by a preliminary verdict; and every step taken by the court itself must be regarded as an affirmance of its own undoubting belief that the respondent was capable of making his defense. We cannot say from the record before us that the court erred in its judgment, or that there was any abuse of its discretion in the premises. The authorities may be found collected and reviewed in an extensive note to Baughan v. State, 38 L. R. A. 577, 28 S. E. 68. See also 10 Enc. Pl. & Pr. 1218-1221.

In its charge the court said: “Before you can convict the respondent of an assault with intent to kill and murder, or of an assault with intent to kill, you must believe from the evidence, beyond a reasonable doubt, that the respondent had such-intent when he made the assault. The natural and probable consequences of every act deliberately done by a person of sound mind are presumed to have been intended by the author of the act. Direct and positive testimony is not necessary to prove the intent. It may be inferred from the evidence, if there are any facts proved which satisfy you beyond a reasonable doubt of its existence. And on this question you should take into consideration the previous relations between these parties; also, whether it is true that the respondent made any declaration or statement, at the time or before the assault, as to what his intentions were; the fact that he had a revolver- — if he did have one; his acts with the revolver, and his threats.”

The respondent excepted to- the charge that a man intends the natural consequences of his acts, so far as the court applied it to an intent as a part of the crime, but not so^ far as the court *284.applied, it to the simple assault. No change was made in the ■charge upon the taking of this exception. It seems to us to have been well taken. As contended by the respondent’s counsel, there was in this case noi act of killing from which to infer or presume the intent to kill. The only act proved was the assault. We think the charge should have been modified to meet the point taken by the exception, and that the omission to da so left it misleading. See State v. Taylor, 70 Vt. 1, 9, 39 Atl. 447.

We find no merit, however, in the exception to> the supposed failure to charge that the intent to kill, or to kill and murder, must be proved as a specific intent, further than the exception is justified by the omission we have just referred to. The first portion of the paragraph quoted was a virtual compliance with the respondent’s request in this regard.

In charging upon the subject of insanity the court said; “If, from all the evidence in the case, you believe beyond a reasonable doubt that the respondent committed the crime of which he is accused as charged in the indictment, and that at the time of the commission of such crime the respondent knew that it was wrong to commit such crime, and was mentally capable of choosing either to do or not to- do the act or acts constituting the crime, and of governing his conduct in accordance with such choice, then it is your duty under the law toi find him guilty, even though you should believe from the evidence that at the time of the commission of the crime he was not entirely and perfectly sane, or that he was greatly excited or enraged. But, on the other hand, if you believe from the evidence that at the time the respondent committed the crime, if you find he did commit it, he was so- far affected in his mind and memory that he was not able to distinguish right from wrong, and had no knowledge and understanding of the character and consequences of his act, and power of will to abstain from it, then he *285was not a legally responsible being and you should find him not guilty by reason of insanity.”

Several times earlier and several times later in the charge reference was made to this instruction in language like the following : “If the respondent was able to distinguish right from wrong and to act accordingly, within the meaning of the law as explained in these instructions.” Near the close of the charge, when summing up'the law and explaining the form of the possible verdicts, the court said: “If you are satisfied * * * that the respondent had sufficient mind and memory to distinguish right from wrong and to act accordingly, within the meaning of the law as explained to you upon that subject, your verdict should be guilty; * * * But if you are satisfied that the respondent committed an assault in either of the ways above named, but at the time he committed the assault he was so far affected in his mind and memory that he was not able to distinguish right from wrong, and had no knowledge and understanding of the character and consequences of his act, and power of will to abstain from it, then your verdict should be —‘not guilty by reason of insanity.’ ”

Only in these two places did the court attempt to give anything like a full statement of the rule, and in each of these instances, it will be observed, stated it in two parts; in the first, telling the jury on what conditions they might find the respondent sane; in the second, on what conditions they might acquit him as insane. The jury would naturally treat the two parts as equivalent statements of the same rule, the only difference being that one was in the positive form and the other in the negative, and if either part is unsound they may have been misled.

Then it follows that they may have understood that to constitute a defense the respondent must have been unable to distinguish right from wrong, and have had no- knowledge and *286understanding of the character and consequences of his act and no power of will to abstain from it; for the three clauses .are stated conjunctively.

Many courts hold that one must be conclusively presumed to be able to choose and to- govern his conduct in accordance with his choice, when he has capacity to- understand the proposed act in all its bearings and consequences, and to see that it is wrong; and this because, as it is said, human- society is built upon the assumption that the will is free; that a man can do what he knows he ought to- do-; and they put their decisions upon the ground that there is no- other practical, o-r safe rule, • for one’s very power to- refrain from the wrong action; may ■depend upon his knowledge that the law will hold him responsible. See People v. Hubert, 119 Cal. 216, 51 Pac. 329, 63 Am. St. Rep. 72 and note pp. 80-108, especially at pp. 100-104; State v. Harrison, and note, 18 R. R. A. 224, 15 S. E. 982.

Without accepting or rejecting this view, it is enough for the purposes of this case to- observe that the jury here were apparently instructed upon the opposite theory. If this was to be adopted, then the respondent was entitled to- be acquitted upon any one o-f three conditions: (1) If by reason of' mental -disease, he could not understand the character and consequences •of his act; (2) if, although understanding the character and ■consequences of his act in other respects, he could not, by reason of mental disease, perceive that it was wrong; (3) if, although understanding the character and consequences of his .act and perceiving it to be wrong, he could not, by reason of mental disease, refrain from doing, it. But the charge, in the second half of the proposition, required the jury to- find all three conditions before they could acquit.

If, in a given case, the evidence should tend to- show that .a mind might be so sound that it co-uld understand a proposed-a.ct in all its bearings, and realize that it would be a wrong and *287a crime to do it, and yet, at the same time, be so unsound that it could not refrain from doing the act, and if the evidence should tend to show that the respondent was in that condition when he did the act complained of, then it might become the duty of-the court to- charge upon that subject. We do not say what that charge should be, nor whether evidence to establish those propositions should be admitted. The question is one of the gravest, and upon it courts have differed and are differing widely. But if we leave out of view this part of the instruction, and treat it as even more favorable to the respondent than he was entitled to, we have still the difficulty that the jury were required to find, both that the respondent did not know and understand the character and consequences of his act, and that he had no moral perception in respect to- it; whereas it was not necessary that he should have been thus totally ignorant of the character and consequences of his act, but it was enough, if he could not, by reason of mental disease, perceive that it was wrong.

We do! not pretend to lay down a general rule of criminal responsibility, nor even the rule that should govern the case before us upon another trial, for the instructions to be given the jury must depend, in each instance, upon the state of the evidence when the case comes to be submitted, and what that will be we cannot know.

Several exceptions were taken to the exclusion and admission of testimony and some to remarks in argument to the jury, but upon examination it occurs to us that none of these questions are likely to arise upon a new trial, and as the case must be sent back for the errors already found, the remaining points will be passed over.

Exceptions sustained; verdict, judgment and sentence set aside, and new triad granted.

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