Summary
rejecting due process analysis in Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302, which held an Oregon statute requiring an accused to prove sanity beyond a reasonable doubt to be constitutional under federal standards, and concluding that a Colorado statute requiring an accused to prove sanity by a preponderance of evidence violated the due process clause of the Colorado Constitution
Summary of this case from Saldana v. StateOpinion
No. 23303.
Decided March 18, 1968. Rehearing denied April 29, 1968.
Original proceeding to secure a determination of the constitutionality of an act of the legislature pertaining to the question of burden of proof with relation to the defense of insanity in criminal cases. Rule to show cause issued.
Rule Discharged.
1. CRIMINAL LAW — Statute — Insanity — Burden of Proof — Constitution — Violation — Due Process. Provisions of statute which state "The burden shall be on the defendant to prove by a preponderance of the evidence that he was insane at the time of the alleged commission of the crime," violates due process provision of state constitution.
2. CONSTITUTIONAL LAW — Due Process — Presumption of Innocence — Proof Beyond Reasonable Doubt — Benefit — Verdict of Not Guilty. Among the basic concepts included within the term "due process of law" are: the presumption of innocence; requirement of proof beyond a reasonable doubt; and that if upon any material issue of fact essential to guilt the jury has a reasonable doubt, the defendant is entitled to the benefit of that reasonable doubt and a verdict of not guilty.
3. Due Process — State — Proof — Beyond Reasonable Doubt — Legislature — Insanity — Accused — Preponderance — Negative. The due process clause of the state constitution includes the doctrine that the state must prove guilt beyond a reasonable doubt, and that the accused cannot be required by legislative enactment to prove insanity or any other defense by a preponderance of the evidence.
4. Interpretations — Provisions — Judiciary — Change — Legislature — Negative. Interpretations given constitutional provisions by the judiciary are not subject to change by the Legislature.
5. Interpretation — Incorporation — Instrument — Change — Legislature — Negative. The interpretation given by the courts to the constitution are incorporated in the instrument itself and are beyond the power of the legislative branch of government to change.
6. COURTS — Statute — Misconstruction — Correction — Legislature — Propriety. If the court misconstrue or misinterpret the intent of the legislature concerning a statute, there is nothing to prevent it from correcting the error and making clear that which was intended.
7. CONSTITUTIONAL LAW — Due Process of Law — Requirement — States — Sameness — Negative. There is no requirement that the meaning of "due process of law" shall be the same in each of the fifty states.
8. Due Process of Law — State — Denial — Right — Liability — Contrary — Federal Concept — State Constitution. Under the United States Constitution, a state cannot deny a right or impose a liability which is contrary to the federal concept of due process of law; but so long as state action does not deny right protected under federal concept, or impose liability prohibited thereby, federal power will not nullify rights and protections which, within the state, are recognized as part and parcel of due process under the state constitution.
9. Due Process of Law — Straightjacket — Federal Level. There is no requirement that due process of law shall operate as a "straightjacket" forcing every sovereign state to give no more, as well as no less, protection than that which would be recognized at the federal level.
10. Due Process — Stare Decisis — Legislative Act — Limitations — Power. Where stare decisis controls a situation "due process" is rarely the ground upon which decision rest; it is drawn into play, however, by a legislative act which fails to recognize constitutional limitations upon legislative power.
11. CRIMINAL LAW — Decisions — Requirement — Total Guilt — Proof — Beyond Reasonable Doubt. Colorado decisions require application of the rule that total guilt must be established beyond a reasonable doubt.
12. Mental Capacity — Material Part — Total Guilt. Mental capacity to commit a crime is a material part of total guilt for there can be no crime without the mens rea.
13. CONSTITUTIONAL LAW — Due Process of Law — Test — Liberty — Protection — System of Laws. Due process of law must be tested by those principles of civil liberty and constitutional protection which have become established in our system of laws.
14. Due Process — Legislature — Established Principles — Private Rights — Distributive Justice. The hand of the legislature is restrained by the due process clause of the state constitution from overturning "established principles of private rights and distributive justice."
15. CRIMINAL LAW — Established Private Rights — Distributive Justice — Decisions — Supreme Court — Guilt — Beyond Reasonable Doubt — Due Process Clause — Alteration by Legislature — Prohibition. The established private rights and distributive justice as reiterated by decisions of Supreme Court require that any accused person must be found not guilty of crime unless his guilt is established in all material matters beyond reasonable doubt; and legislature is forbidden by state due process clause from altering this concept.
Original Proceeding.
Edward N. Juhan, District Attorney, George C. Aucoin, Deputy, F. Richard Hite, Special Deputy, for petitioner.
F. E. Dickerson, Stanley J. Walter, for respondents.
The district attorney for the First Judicial District commenced this original proceeding to secure a determination of the constitutionality of an act of the legislature dealing with the defense of insanity in criminal cases. The facts giving rise to the controversy are as follows:
An information was filed in the district court of Jefferson county in which one Calvin Fulmer was accused of the crime of first degree murder. He entered a plea of not guilty by reason of insanity at the time of the alleged commission of the crime. A motion was filed by his attorney seeking entry of an order of court directing the prosecution to establish the sanity of the defendant to the satisfaction of the jury, beyond a reasonable doubt, notwithstanding the provision of C.R.S. 1963, 39-8-1 as amended by Chapter 163, Session Laws of 1967, which purports to require a defendant who enters a plea of not guilty be reason of insanity to establish, by a preponderance of evidence, the fact of insanity. The statute in pertinent part reads as follows: "Plea of insanity. — (3)(a). Upon the making by the defendant of the plea of insanity at the time of the alleged commission of the crime, a jury shall be impaneled as in criminal proceedings and the issue of the defendant's sanity or insanity shall be decided by such jury in accordance with section 39-8-3. The burden shall be on the DEFENDANT to prove by a preponderance of the evidence that HE was INSANE at the time of the alleged commission of the crime."
The trial court sustained the motion of counsel for Fulmer, holding that the above quoted statute violated the constitution of the State of Colorado. Thereupon this original proceedings was commenced and we issued a rule to show cause as prayed for in the petition. The respondents have appeared, briefs have been filed, and oral arguments have been heard.
The answer and brief filed by respondents urge that the rule be discharged for three reasons as follows:
"I. C.R.S. 1963, 39-8-1, as amended, 1967 Session Laws, is in violation of Article III and Article VI, Section 21 of the Colorado Constitution in that C.R.S. 39-8-1, as amended, 1967 Session Laws, is an usurpation and invasion of the judicial power vested in the Supreme Court of Colorado to promulgate rules governing practice and procedure in criminal cases.
"II. C.R.S. 1963, 39-8-1, as amended, 1967 Section Laws, violated the due process clause of Article II, Section 25, of the Colorado Constitution and the XIV Amendment to the United States Constitution in that it shifts the burden of proof in a criminal case to the defendant.
"III. Since C.R.S. 1963, 39-8-1, as amended, 1967 Session Laws, is constitutionally deficient, there is presently no existing statutory procedures with reference to the burden of proof in insanity cases: it therefore follows that the common law of Colorado applies in this case and under the common law the burden of proof is upon the district attorney to prove the defendant's sanity beyond a reasonable doubt."
We consider but one of the points relied on by counsel for Fulmer. Our determination of it disposes of the controversy. For reasons hereinafter stated we hold that the provisions of the statute which state: "The burden shall be on the defendant to prove by a preponderance of the evidence that he was insane at the time of the alleged commission of the crime," violates Article II, section 25, of the constitution of Colorado which provides: "No person shall be deprived of life, liberty, or property, without due process of law."
There are a number of fundamental principles of law applicable to criminal cases which have been so universally accepted and applied in this country as to have become component parts of our understanding of the term "due process of law." Among such basic concepts we find the doctrine that, at the outset of the trial, an accused person is presumed to be innocent of the offense charged against him; that the state must satisfy the jury of the guilt of the defendant beyond a reasonable doubt; and that if upon any material issue of fact essential to guilt the jury has a reasonable doubt, the defendant is entitled to the benefit of that reasonable doubt and a verdict of not guilty. Numerous cases decided by this court have imbedded these basic fundamentals in the main stream of the criminal law.
In Ingles v. People, 92 Colo. 518, 22 P.2d 1109, we find the following pertinent language:
"One who is insane when he commits an act prohibited by law cannot be held guilty of a crime. A statute providing that insanity shall be no defense to a criminal charge would be unconstitutional. State v. Strasburg, 60 Wash. 106, 110 Pac. 1020. One accused of crime is entitled to raise and have a jury pass upon the question of whether he was sane or insane when he committed the act with which he is charged. At some stage of the proceedings he must be given an opportunity to raise that question. Before the act of 1927, the question could be raised under a general plea of not guilty. In order to avoid or lessen certain abuses that were believed to exist under that practice, the Legislature, by the act in question, changed the method of raising the question of insanity, but left to the defendant all the substantial rights he formerly enjoyed. Now, as formerly, he can raise the question of insanity, and have that question passed upon by a jury of twelve men. Now, as formerly, when the question is properly raised, the burden is upon the people to prove beyond a reasonable doubt that the defendant, when he committed the act charged, was sane. Now, as formerly, if the evidence raises in the minds of the jury a reasonable doubt of the defendant's sanity at that time, they must find the defendant not guilty of the crime charged. * * *"
In Graham v. People, 95 Colo. 544, 38 P.2d 87, this court said, with reference to an insanity plea:
"* * * The defendant never has the burden of proving insanity. If, upon a consideration of all the evidence, the jury have a reasonable doubt whether the defendant was sane or insane at the time of committing the act they must find the defendant not guilty. * * *"
Other earlier decisions are cited in the Graham case, supra, all of which lead inescapably to the conclusion that insanity is a defense in criminal cases and if that defense is offered and leaves a reasonable doubt in the minds of the jury, as to whether the accused was sane or insane, then a not guilty verdict must be returned.
In Mundy v. People, 105 Colo. 547, 100 P.2d 584, this court recognized that prior to the legislative act of 1927, which first required the entry of a special plea of "not guilty by reason of insanity," the defense of insanity was available to the defendant under a general plea of not guilty. This court said in that case that:
"* * * By the 1927 act the procedure only has been changed and the substance of the defendant's constitutional right to a jury trial on the question of insanity has been preserved." (Emphasis added.)
In Carter v. People, 119 Colo. 342, 204 P.2d 147, this court said, inter alia:
"* * * Upon the issue of insanity, if a reasonable doubt existed in the minds of the jury as to whether the defendant was, or was not, sane, he was entitled to a verdict of not guilty be reason of insanity."
In Becksted v. People, 133 Colo. 72, 292 P.2d 189, the question presented for determination was:
"In the prosecution of a charge of first degree murder in which the accused has entered a plea of not guilty by reason of insanity as well as that of not guilty, and where a separate trial is had upon the issue of insanity; is that trial to be conducted as a 'civil' action"?
The opinion disposes of the issue as follows:
"This question is answered in the negative. In a criminal case the defendant can assert as many defenses as can be supported by evidence. If affirmative defenses such as self-defense or alibi are presented the issues thereon are tried as part of the criminal case, and if any such defense raises in the mind of a jury a reasonable doubt as to the defendant's guilt he should be acquitted. The defense of insanity stands upon the same footing. The fact that this issue has been separated from other questions for the purpose of trial does not make a civil case out of that which is tendered as a defense to an accusation of crime. * * *"
The language of these cases has taken such form over a period of many years as to become part and parcel of our concept of constitutional "due process of law." As thus interpreted by the judiciary over the years the due process clause of the state constitution includes the doctrine that the state must prove guilt beyond a reasonable doubt, and that the accused cannot be required by legislative enactment to prove insanity or any other defense by a preponderance of the evidence.
[4-6] Interpretations given constitutional provisions by the judiciary are not subject to change by the legislature. The interpretation given by the courts to the constitution are incorporated in the instrument itself and are beyond the power of the legislative branch of government to change. This of course is not true of legislative acts. If the courts misconstrue or misinterpret the intent of the legislature concerning a statute, there is nothing to prevent it from correcting the error and making clear that which was intended.
Addressing ourselves now to comments contained in the dissenting opinions, we have elected to fortify the foregoing with a more detailed analysis of the long established law in this state.
We are determining by this decision what "due process of law" means in the territorial limits of the sovereign State of Colorado, under the provisions of our own constitution. We are not in the least concerned with what in meant in the State of Oregon in the year 1864, or at any time thereafter. Neither are we concerned with what it may or may not mean in any other state mentioned in the dissenting opinion.
We propose to show that in the State of Colorado we have given a stature to a "fundamental" doctrine by long continued adherence thereto, which has brought that concept within the coverage of the due process clause of the state constitution, which means that the doctrine cannot be changed by the General Assembly.
[7,8] There is not the slightest requirement that the meaning of "due process of law" shall be the same in each of the fifty states. The Supreme Court of the United States has never nullified an interpretation of due process by a state supreme court which might be given by a federal court construing the Constitution of the United States. No state has yet been required to accept as all-inclusive or all-exclusive the federal court determination of what activities of state fall within or lie without the ambit of due process of law under the United States Constitution. What the United States Constitution does to state authority is this: It says that the state cannot deny a right or impose a liability which is contrary to the federal concept of due process of law. It does not say that a state has no right, under its state due process clause, to create protections for its citizens which might not be required under the federal concept. So long as state action does not deny a right protected under the federal concept of due process, or impose a liability prohibited thereby, the federal power will not nullify the rights and protections which, within the state, are recognized as part and parcel of due process under the state constitution; and that is exactly what happened in Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302. See Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 7 L.Ed. 674.
Under the old 1864 Oregon statute an accused who defended on the ground of insanity had the burden of establishing insanity beyond a reasonable doubt. This procedure was always followed in that state. In 1948 the Oregon court held that the statute did not violate either federal or state due process. Obviously at the state level there had not developed a body of law creating a "principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental." Brown v, Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682. Exactly the opposite has occurred in the State of Colorado. The effect of the decision of the United States Supreme Court was to say: "If that is what the State of Oregon wants under state due process it can have exactly that, because it does not violate the federal concept of due process." Certainly if the Supreme Court of Oregon had developed a deep-rooted concept of criminal justice in this particular, as has been done in Colorado, and if Oregon had said that the statute in question offended a "fundamental" concept of due process, the Supreme Court of the United States would have been obligated to affirm. Again, we say that there is no requirement that due process of law shall operate as a "straightjacket" forcing every sovereign state to give no more, as well as no less, protection than that which would be recognized at the federal level.
Attention is directed to a statement in the dissenting opinions that, "This is the first time that any court in a reported decision has ever held that a statute or rule of court which places on the defendant the burden of proving insanity violates due process." The answer is simple as far as the law of Colorado is concerned. Never before in the history of Colorado has the legislature purported to make this very drastic change in the firmly established concept of criminal law, that a reasonable doubt concerning the validity of any defense entitles an accused person to a verdict of not guilty. Because no such statute has ever been passed heretofore in Colorado the test of constitutional "due process" has not been applied. Nevertheless, every effort to bring about by other means the result contemplated by the statute has been nullified by this court in countless decisions, all of which have held that such a result is contrary to long established fundamental principles of criminal justice in this state. There has been no need heretofore to mention "due process" because the long line of decisions established a "principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental." Application of the rule of stare decisis controlled.
The recently enacted legislative now considered presents to the court for the first time, under the due process clause of our constitution, the question of the power of the legislature to destroy all the numerous decisions of this court on this fundamental doctrine. The legislature has attempted to do by statute that which for almost one hundred years this court has held could not be done without violating fundamental principles of criminal justice. Thus "due process" of necessity becomes for the first time the basis of decision. Where stare decisis controls a situation "due process" is rarely the ground upon which decision rests. It is drawn into play, however, by a legislative act which fails to recognize constitutional limitations upon legislative power.
The dissenting opinion contains the statement: "Inasmuch, then, as the sanity trial is not one to determine the guilt of the accused, the so-called presumption of innocence, for example, I submit has no particular applicability." No authority for such a proposition is cited. We are confident that there is none. In any event this court has held exactly the contrary. In the separate sanity trial the guilt of the defendant, as to an essential ingredient of the crime is being finally determined. In Leick v. People, 136 Colo. 535, 322 P.2d 674, there was a separate trial on the issue of insanity and this court said:
"* * * Under the procedural change provided by the statute, permitting a disposition of the insanity issue before the issue of not guilty, the trial is conducted in sections either before the same or a different jury. Together these sections constitute one trial. (Citing cases.)
"The action is single. Leick was confronted with one charge. To it he directed two defenses, both of which raised the issue of his culpability. Success on the issue of insanity would have exonerated him of guilt; failure to prevail on that issue left the issue of not guilty for determination, and on the latter issue he suffered an adverse verdict. On the single charge one judgment only could be entered. * * *" (Emphasis added.)
To similar effect is the following from Becksted v. People, supra:
"* * * The fact that this issue has been separated from other questions for the purpose of trial does not make a civil case out of that which is tendered as a defense to an accusation of crime. * * *"
The argument is made that in a criminal case, even though insanity is a full an complete defense, where that issue by statute must be tried separately no defendant can be found guilty, and for that reason "due process of law" does not require that this very material ingredient of guilt must be established beyond a reasonable doubt. By procedurally requiring a separate trial on this issue of mental capacity to commit any crime — which admittedly is a necessary ingredient of any offense — in some mystical way, it is argued that the material ingredient thus set apart for separate trial shall be governed by rules wholly inapplicable to all other necessary ingredients of the completed offense to be thereafter adjudicated; and this is urged notwithstanding the firmly established doctrine that as to every necessary ingredient of the total crime there must be proof beyond a reasonable doubt. In a substantial number of cases insanity is the only defense relied upon and as a practical matter the accused would be deprived of essential and time honored safeguards and would be required to establish his innocence by a preponderance of the evidence, if the statute is to be upheld.
[11,12] The argument for such a result, in effect, seems to be that because on the separate trial of the sanity question perhaps only one-half the ingredients of total guilt will be determined, as to that half of total guilt the accused can be required to prove his innocence — lack of mental capacity — by a preponderance of the evidence. If the defendant fails to prove by a preponderance of evidence that this defense is well founded he has been, at least, fifty per cent convicted, notwithstanding that not one of countless Colorado decisions can be found which in any degree relieves the prosecutors from the burden of proving every material element of every criminal charge (100% of the total crime) by evidence sufficient to remove all reasonable doubt. All Colorado decisions from the beginning of territorial days to the present require application of the rule that total guilt must be established beyond a reasonable doubt. Mental capacity to commit a crime is a material part of total guilt for there can be no crime without the mens rea.
At the risk of belaboring the point, we will cite only a few of the many decisions of this court in every generation since statehood to the present day, and will quote briefly therefrom pertinent language directly on the point. This will be done in order to dispel any doubt that may exist as to whether the doctrine that, if a jury has a reasonable doubt as to whether any defense offered by an accused is well founded, the accused must be found not guilty, has gained a stature which comes within our concept of due process of law.
[13-15] It is certain that the "law" to which we refer in the expression "due process of law" does not mean that whatever process is provided by the legislative arm of government shall be the measure of the protection provided by the "due process" clause. As state by this court in People v. Max, 70 Colo. 100, 198 P. 150:
"Such a construction would render the constitutional guaranty mere nonsense for it would then mean no state shall deprive a person of life, liberty, or property, unless the state shall choose to do so."
In that opinion this court held that due process of law "must be tested by those principles of civil liberty and constitutional protection which have become established in our system of laws." The hand of the legislature is restrained by the due process clause of our state constitution from overturning "established principles of private rights and distributive justice." The established private right of an accused and "distributive justice" as announced by the following decisions require that any accused person must be found not guilty of crime unless his guilt is established in all material matters beyond a reasonable doubt. The due process clause of the constitution of this state forbids the legislature from destroying in whole or in part any of these fundamental concepts.
We turn now to the decisions and direct attention first to Kent v. People, 8 Colo. 563, 9 P. 852, from which we quote the following:
"* * * the burden of proof rests upon the state to prove to the satisfaction of the jury, beyond a reasonable doubt, the existence of all the material elements necessary to constitute the crime of murder." (Emphasis added.)
No one has yet contended that mental capacity to commit a crime is not a "material element" of the crime of murder, or any other offense.
We next consider Babcock v. People, 13 Colo. 515, 22 P. 817, which was a case in which an instruction to the jury required the defendant to establish a defense "to the satisfaction of the jury by a fair preponderance of the evidence." This court said:
"* * * upon familiar principles of criminal evidence, if the showing be sufficiently strong to create a reasonable doubt of the guilt of the accused as to any grade of the offense included in the indictment, the accused is entitled to the benefit thereof."
From Brooke v. People, 23 Colo. 375, 48 P. 502, we quote:
"The point made by the defendant, viz., that if by any testimony, whether that introduced in his own behalf or by the prosecution, he succeeds in raising in the minds of the jury a reasonable doubt as to any essential element in the case, * * * they should find him not guilty, is good; * * *." (Emphasis added.)
In McNamara v. People, 24 Colo. 61, 48 P. 541, the issue arose out of a defense of alibi and the jury was instructed to the effect that the accused had the burden of establishing an alibi. In reversing the judgment this court said, inter alia:
"* * * The Court evidently misapprehended the nature of this defense; and instead of treating it as a traverse of a fact that it was incumbent upon the prosecution to establish, to wit, the presence of defendant at the time and place of the occurrence, regarded it as an affirmative and independent defense, that the law imposed the burden of proving upon the accused. * * *"
"This was clearly erroneous. In order to avail himself of the defense of alibi, it is not incumbent upon the accused to establish that he was not present at the commission of the crime, or that he was in some other place. If the evidence is sufficient to raise a reasonable doubt in the minds of the jury as to whether he was or was not present at the commission of the crime, he is entitled to an acquittal."
The opinion then quotes from Kent v. People, supra, with reference to this rule, as follows:
"The rule relating to the res gestae, which we have been considering, applies to all defenses which traverse the averments of the indictment and go to the essence of the guilt charged against the accused. * * *" (Emphasis added.)
No distinction can be drawn between a defense of alibi and a defense of insanity. Each of them is a traverse of a necessary "averment of the indictment and go to the essence of the guilt charged against the accused." This point is made crystal clear by the opinion of this court in Becksted v. People, supra, written fifty-nine years after the opinion in McNamara, during all of which time there has been an uninterrupted, consistent, and very frequent adherence to the doctrine of McNamara. In Becksted v. People, supra, this court said:
"* * * In a criminal case the defendant can assert as many defenses as can be supported by evidence. If affirmative defenses such as self-defense or alibi are presented the issues thereon are tried as part of the criminal case, and if any such defense raises in the mind of a jury a reasonable doubt as to the defendant's guilt he should be acquitted. The defense of insanity stands upon the same footing. * * *" (Emphasis added.)
In Van Straaten v. People, 26 Colo. 184, 56 P. 905, this court was concerned with a case in which the accused was charged with the crime of larceny and the court erroneously instructed in a manner to lead the jury to believe that "the guilt of the accused is a presumption which the law requires shall be made from the fact of his being found in possession * * *." This court reversed and in treating the instruction said:
"* * * It is also erroneous in imposing upon plaintiffs in error the burden of satisfying the jury that they came into possession of the property honestly. The law imposes no such burden upon a defendant in a criminal case. * * * If their explanation created a reasonable doubt in the minds of the jury as to that fact, it would be sufficient to rebut the presumption of guilt" (which might arise as an inference of fact from possession).
So in the case at bar if the evidence of insanity offered by the defendant created a reasonable doubt as to that fact, "it would be sufficient to rebut the presumption" of sanity which attends prior to plea raising the issue.
In Zipperian v. People, 33 Colo. 134, 79 P. 1018, we find:
"* * * It is not incumbent upon the defendant in a criminal case, either by his own evidence or that of the people, or both combined, to prove anything to the satisfaction of the jury."
The court ruled that if the defendant, "* * * by any evidence in the case, succeeds in raising a reasonable doubt in the minds of the jury of the truth of any essential element of the charge made against him," he should be acquitted. (Emphasis added.) The court held that by an instruction comparable to the burden imposed by the statute now being tested, "A burden was thus put upon the defendant which the law does not sanction."
In Shank v. People, 79 Colo. 576, 247 P. 559, this court held that on the question of insanity, if a reasonable doubt with regard thereto arose from the evidence, the defendant should be acquitted. An instruction which contained the following quoted language was approved as a correct statement of the law:
"It is not incumbent of the defendant, in order to entitle him to an acquittal on the ground of insanity, to prove to your satisfaction that he was insane when the act was committed. If upon the whole case you believe that the defendant was insane at that time, or if upon the whole case you have a reasonable doubt as to whether or not he was sane at that time, you should find him not guilty."
Shortly after the decision in the above case the 1927 Act was adopted which required the entry of a plea of not guilty by reason of insanity prior to trial, but as has already been conclusively established in the forepart of this opinion, no substantive rights were involved and only the "procedure" by which the issue is raised was changed.
In McRae v. People, 101 Colo. 155, 71 P.2d 1042, the language quoted from Zipperian v. People, supra, was set forth and reaffirmed as a correct statement of the law. Russell v. People, 125 Colo. 290, 242 P.2d 610 again applies the rule, as does Ciccarelli v. People, 147 Colo. 413, 364 P.2d 368, in which it is referred to as a "fundamental rule." In Leonard v. People, 149 Colo. 360, 369 P.2d 54, we find the following:
"* * * It is not incumbent upon the defendant to prove anything to the satisfaction of the jury; rather, it is sufficient if he, by any evidence in the case, succeeds in raising a reasonable doubt in the minds of the jury of the truth of any essential element of the charge against him."
In conclusion, at long last, we return to Becksted v. People, supra, and emphasize the holding in that case that:
"* * * If affirmative defenses such as self-defense or alibi are presented the issues thereon are tried as part of the criminal case, and if any such defense raises in the mind of a jury a reasonable doubt as to the defendant's guilt he should be acquitted. The defense of insanity stands upon the same footing. The fact that his issue has been separated from other questions for the purpose of trial does not make a civil case out of that which is tendered as a defense to an accusation of crime. * * *" (Emphasis added.)
That is exactly what the legislature tried to accomplish by the act under discussion in this case. It purported to do the very thing that was attempted by instruction in Becksted. It cannot be done either by instruction or by act of the legislature for the very simple reason that in this state our concept of due process of law prohibits it. In the instant case the trial court ruled properly.
The rule to show cause is discharged.
MR. JUSTICE McWILLIAMS and MR. JUSTICE KELLEY dissent.
ADDENDUM
On petition for rehearing it is suggested that our opinion should indicate whether the Act of 1965, which refers to the same subject, is also unconstitutional. We hold that it, too, cannot be sustained over an objection based upon a denial of due process of law.