¶1Opinion by
¶2McFall was indicted for a breach of the peace. The proof disclosed an aggravated assault upon the person of his wife.
¶3It was proved by a practicing physician that a day or two after the assault, McFall was apparently on the verge of delirium tremens, and that he was very much frightened. In the opinion of the witness he was not then responsible for his acts. Another witness proves that he saw him the morning after the assault, and that he seemed to be dodging, and frightened. It is further proved that on the same morning, McFall was found in a dark room, and that he “looked cowed and frightened, and was dodging.”
¶4Upon this proof, the defendant asked that the jury be instructed that if they should believe that “the defendant, at the time that it is alleged he assaulted his wife, was not sane, and could not, because of mental incapacity, know right from wrong, whether that incapacity was caused by drink or not, they ought to acquit.” The *237court refused so to instruct. In so refusing it erred. We know of no instance in which it has been held that a person, who is so far insane as not to know right from wrong, is criminally responsible for his acts. The cause of the want of mental capacity is- immaterial. The temporary aberration of the intellect, caused by drunkenness, does not excuse; but when from excessive indulgence, the drunkard becomes a lunatic, incapable of distinguishing between right and wrong, he must be treated as other insane persons.
¶5It is not for this court to determine as to the sufficiency of the proof to sustain the plea of insanity. There was some evidence tending to sustain it, and therefore the defendant should have had the benefit of the instruction asked.
¶6For the error indicated the judgment is reversed and the cause remanded for a new trial, upon principles consistent with this opinion.