Opinion by
Mr. Chief Justice Brown,
The appellant was found guilty of murder of the first degree, and judgment of death followed, The sole and *543unavailing defense made for him on his trial was insanity, and the jury were correctly instructed that, if they found, from a fair preponderance of the testimony offered in support of it, that the prisoner had not consciously committed the crime charged against him, he should be acquitted on the ground of insanity; but, under a misconception of the law, they were, in effect, instructed that, if he was sane at the time of the commission of the offense, the law presumed it to be murder of the first degree, and they should so find.
We are again called upon to repeat, strange as it may seem, that on the trial of an indictment charging felonious homicide, the law’s presumption is that the offense of the accused is no higher than murder of the second degree, and the burden is always upon the Commonwealth to rebut that presumption by proof, establishing to the satisfaction of the jury, that the crime is of the first degree. This burden never shifts, but continues to rest upon the Commonwealth throughout the entire trial, and the accused is not called upon to rebut the presumption of a degree of guilt which does not exist: Com. v. Drum, 58 Pa. 9; Murray v. Com., 79 Pa. 311; Com. v. Mika, 171 Pa. 273. There is not a line in the entire charge indicating to the jury that, though the prisoner’s guilt had been established, the presumption of the law was that it did not rise higher than murder of the second degree. On the contrary, the only conclusion the jury could have reached, under the instructions given them, was that the law presumed it to be murder of the first degree. This most clearly appears from those portions of the Charge complained of by the first and third assignments of error. After defining the different degrees of homicide and announcing in a general way to the jury that “in an indictment such as that before us, and which you will have in charge, a verdict for murder of the first degree, murder of the second degree, or voluntary manslaughter could be found and could be sustained,” the trial judge almost instantly added, “We *544have to deal in this case only with the offense of murder of the first degree.” Immediately after this utterance the jury were told that, if the prisoner’s insanity had not been established, “There is no evidence that we can discover that would lessen, that would diminish, the offense from that of murder of the first degree.” No matter what the testimony may have shown, and no matter what counsel for the prisoner may have admitted in addressing the jury, before whom they could waive no right of their client, on trial for his life, these utterances must have been understood by the jury as taking from them, to whom the law had exclusively committed it, the question of the degree of the guilt of the accused. They were, in effect, instructed, as just stated, that his offense was presumed by the law to be murder of the first degree, and that he'had not rebutted that presumption. For this error the judgment must be reversed, and the prisoner must be tried a third time before another jury, when it is to be hoped error will not be committed. For palpable error committed on his first trial the verdict was set aside: Com. v. Tompkins, 265 Pa. 97.
In Com. v. Greene, 227 Pa. 86, the only one of the numerous assignments of error sustained complained of the following from the charge of the court: “The law holds that if a man uses a deadly weapon upon the vital part of another person, it is a presumption that he intended the consequences that would follow from, as, for illustration, from his pulling the trigger and sending a bullet crashing into the brain of some human being; that is, that he intended to kill, and if he so does, it is on him to answer to the jury aught that he may have in extenuation or qualification to relieve himself from that presumption of murder of the first degree.” What was said, in holding that this was error, is here controlling, and we now repeat it: “The only inference to be drawn by the jury from this instruction was that if they found the prisoner had shot the deceased, the burden was upon him to relieve himself from the law’s *545presumption that his ofíense was murder of the first degree. He offered no testimony and was notr required to offer any to rehut a presumption that, if guilty, his guilt was murder of the first degree. The law’s humane presumption was that his offense rose no higher than murder of the second degree, and he was safe from conviction of the first degree until the Commonwealth had overcome the presumption of second degree by affirmatively showing the existence of every ingredient and element of the first degree. From this burden the Commonwealth is never relieved. Whenever it asks for conviction of murder of the first degree it must overcome the presumption of second degree after having established a felonious homicide, even if committed by the use of a deadly weapon upon a vital part of the body of the deceased......In the present case it was the statutory duty of the jury, upon finding that the prisoner was guilty of felonious homicide, to fix the degree of his guilt. Indeed, it may be fairly said that, under the evidence, the real question for their determination was the degree. The law presumed that it rose no higher than the second, but by the court’s instruction, complained of in the twenty-seventh assignment, the jury were unmistakably told that the law’s presumption was that he was guilty of murder of the first degree and that it was for him to answer aught that he might have to say to relieve himself from that presumption. He answered naught and was not called upon to say anything to rebut such a presumption, for it did not arise from the mere killing of his victim, even though he killed her with a deadly weapon directed at a vital part of her body.”
Nothing is to be found in the charge relieving it from the error disclosed .by the first and third assignments, and they are, therefore, sustained.
Judgment reversed and a venire facias de novo awarded.
See Com. v. Berkenbush, above, p. 455.