¶1(dissenting) : When the charge was all read the jury found themselves properly instructed as to presumptions, the burden of proof and the question of sanity. But they also found themselves improperly told that in order for an acquittal it devolved upon the defendant, not “to prove his insanity by a preponderance of the evidence,” “but merely to create a reasonable doubt on this point,” whereupon the burden of proving his sanity (which never shifts) would fall upon the state. They were directed to consider this question, this defense of insanity, and were impi~operly instructed that if they should “believe from the evidence” that he was insane then they should acquit. *451But if they should “believe, that under the instructions I have given you, he should be held responsible” then they should proceed to consider the other matters— making “belief” precisely the same whether applied to guilt or to innocence. Only by ignoring or wresting these expressions from their natural and ordinary meaning and significance could the jury have failed to be led astray by them. A similar situation arose in The State v. Conway, 55 Kan. 323, 40 Pac. 661. There the charge was burglary and larceny. The defense was an alibi. The court refused to instruct that the defendant was not required to prove this beyond a reasonable doubt but that it was sufficient if the evidence upon that point raised a reasonable doubt, and charged that evidence of an alibi had been introduced, and “If this is true, the defendant . . . should be acquitted.” (p. 325.) This was held fatal, and it was said:
“The burden of proof is upon the State, and is not shifted because of the attempt of the accused' to prove an alibi; and if, by reason of the evidence relating to that question, the jury should doubt the guilt of the accused, he is entitled to an acquittal.” (p. 325.)
¶2Speaking of the instruction it was said:
“This instruction, in effect, required the jury to believe the proof of an alibi before they could acquit him. . . . The evidence may be such as simply to raise a reasonable doubt of guilt and in that event the defendant may be acquitted.” (pp. 325, 326.)
¶3Whether the insanity in this case was real or feigned, the state can not afford to demand the defendant’s punishment until his conviction shall have been accomplished in accordance with the settled rules of criminal procedure, which rules form the right and shield of the meanest as well as the chiefest citizen.
¶4The judgment should be reversed, not for technical reasons but for failure to conserve the defendant’s vital and substantial rights.