¶1 (concurring).
¶2 I concur. In the prevailing opinion is a statement with respect to presumptions as follows:
“When evidence tending to show that the accused was insane enters into the case, the presumption of sanity disappears from the case, and the jury is no longer concerned with the presumption of sanity, but must determine the fact of sanity or insanity solely from the evidence. The presumption of sanity is not evidence of sanity, and may not be so considered by the jury where there is evidence before the jury tending to show that the accused was insane at the time charged.”
¶3 With this I am in accord so far as it goes, but as a statement of a general rule it should, in my opinion, have the qualification that the presumption is not destroyed or eliminated from the case by evidence which the jury disbelieves. If the only evidence tending to prove insanity is such that it is disbelieved and disregarded by the jury, then the presumption of sanity remains and should have the effect as if no evidence had been introduced tending to prove insanity. The jury might well be instructed that in weighing the evidence they may not consider the presumption, yet, if uninfluenced by the presumption they reach the conclusion that the evidence tending to show defendant’s insanity is not entitled to credit and is disregarded by them, the presumption of sanity may then be regarded as remaining in force. See article on “Presumptions” by Professor Edmund M. Morgan, 44 Harvard Law Review, 906.
¶4 This distinction may be be academic so far as its application to the instant case is concerned, because there is ample *606 evidence in the record from which the jury would be justified in finding the defendant sane at the time of the commission of the crime without being forced to rely upon the presumption of sanity in the event they should disbelieve the evidence adduced by the defendant tending to prove insanity.