McFarland, J.
The appellant was convicted of murder, and appeals from the judgment on the judgment roll, and a short bill of exceptions which shows certain proceedings had on a motion to set aside the indictment.
1. Appellant, upon his arraignment, moved to set aside the indictment, upon the ground that he had not been held to answer when the grand jury which indicted him was in session, and that the grand jurors were prejudiced against him, and had unqualified opinions that he was guilty. He introduced on the motion an affidavit made by the county clerk and one made by himself, which showed that he had not been held to answer when he was indicted, and had no opportunity to challenge the grand jury. No other evidence was introduced. The bill of exceptions states that “defendant then offered to leave the challenge to the said grand jurors who indicted him to prove the challenge good, and moved the court for reasonable time and opportunity to examine each juror on his voir dire in support of said challenge. The court overruled said motion and challenge, and defendant excepted.” The first part .of the language above quoted is obscure. It probably was intended to state that defendant moved for leave to challenge the grand jurors, and thus “prove the challenge good.” At all events, the idea of appellant seems to have been that he had the right to have the discharged grand jurors reassembled in court, and to proceed to challenge them formally, and to examine them on their *235voir dire, just as he might have done before the indictment was found. But this is evidently a mistaken notion of the law. A challenge to a grand juror is a preliminary objection to the qualification of the juror, and its purpose is to prohibit the juror from sitting and inquiring into the charge against the party interposing the challenge; and if the challenge be allowed, the juror “ cannot be present or take part in the consideration of the charge against the defendant who interposed the challenge, or the deliberation of the grand jury thereon." (Pen. Code, sec. 900.) It is clear that after a grand jury has completed its work and been discharged, the conditions which make a challenge possible no longer exist. But a defendant who has been indicted without an opportunity to challenge the grand jury is not without remedy. Section 995 of the Penal Code provides that an indictment may be set aside “when the defendant has not been held to answer, before the finding of the indictment, on any ground which would have been good ground for challenge, either to the panel or to any individual grand juror." This language clearly contemplates that the time for challenges has passed, and provides that a defendant may still prove any fact which “would have been good ground for challenge” if he had had an opportunity to interpose it at a time when a challenge was possible. But the fact which would have been good ground for challenge must be proven in the ordinary way in which other facts are proven, by the introduction of evidence, either by the examination of the jurors, or by other competent evidence. For this purpose, of course, defendant is entitled to the process of subpoena to compel the attendance of his witnesses; but there is no process by which discharged grand jurors can be reassembled in their official character, and subjected to the original process of challenging. For the purpose of producing this evidence, a defendant would, no doubt, upon a proper showing, be entitled to a con*236tinuance; but in the case at bar there was no such showing. The appellant did not make any affidavit of merits or diligence; nor did he, by affidavit or otherwise, show that he could produce a single item of evidence tending to show the disqualification of any grand juror. Indeed, he did not make a regular motion for continuance, but seemed to rely upon the supposed right to have the court reassemble the jury.
In People v. Beatty, 14 Cal. 567, relied on by appellant on this point, the only question was, whether a grand jury could indict at all for a crime committed during their session, and after they had been impaneled; and the remark of the justice who delivered the opinion about the right of challenge upon arraignment was evidently mere dictum, used in the progress of his reasoning, and was not intended as the grave determination of a question not before him. There is nothing in the other two cases cited (People v. Turner, 39 Cal. 376, and People v. Geiger, 49 Cal. 650) which determines anything adversely to the views above stated. We therefore think that the court below did not commit any error in the matter of the motion to set aside the indictment.
2. The other points made by appellant relate to instructions given to the jury, and the first one objected to is as follows:— *237This instruction was clearly erroneous. In the first place, it is objectionable—although perhaps not fatally so—on account of its apparent hostility to the defendant. The jury would be very apt to get the impression from it that the court considered the defendant as one of the “criminals” alluded to, and feared that the jury would fail to convict him on account of “ sympathy or prejudice.” In the second place, it is objectionable as an argument in favor of the prosecution on the weight of evidence, and thus was an invasion of the province of the jury; for “to weigh the evidence and find the facts is in this state the exclusive province of the jury; and with the peformance of that duty the judge cannot interfere without a palpable violation of the organic law.” (People v. Dick, 34 Cal. 666; People v. Fong Ching, 78 Cal. 173.) In the third place, if it can be considered as a direction about law, and not an argument about facts, it is still clearly erroneous. It was probably founded on People v. Cronin, 34 Cal. 191; but the instruction which was approved in that case, although itself somewhat extreme, was far different from the one given in the case at bar. In the Cronin case, the court, in its instruction on this point, after stating the fact that counsel for defendant had—as in the case at bar—alluded to cases where upon circumstantial evidence innocent men had been convicted, told the jury, among other things, that “the quotation of such cases is proper, in order to make the jury careful in arriving at a proper conclusion from such (circumstantial) evidence.” But in the case at bar the court told the jury “you are not justified in considering such matters.” But the jury had the right to consider that innocent men had been convicted; for the difference in the weight of evidence required in civil and criminal cases, and the doctrine of reasonable doubt itself, are founded upon the danger of destroying life or liberty upon evidence that does not produce thorough conviction, and that danger is based, in great part, upon human experience.
*236“Fourth. During the argument of this case, your attention has been called to a number of cases in which it was claimed that juries had improperly convicted the defendants. While it is true that innocent persons have been convicted in the past, there is no proof in this case of any such fact, and you are not justified in considering such matters in determining -the guilt or innocence of this defendant; the guilt or innocence of this defendant must be determined from the evidence admitted in the case, and not from sympathy or prejudice. If all criminals must go free because there is a possibility of jurors making mistakes, society might as well disband.”.
*238The court seemed to think that the fact of former unjust convictions could not be considered, because “there is no proof in this case of any such fact”; but that such cases have occurred is a matter of common knowledge, which the court itself admitted when it said: “It is true that innocent persons have been convicted in the past.” If the court had simply told the jury that if they were satisfied, beyond a reasonable doubt, by the evidence before them, that the defendant was guilty, they should not be deferred from so finding merely because there had been some innocent men convicted, the instruction might not have been objectionable; but to tell them that in coming to their conclusion they should not consider the danger of convicting an innocent man was clearly erroneous. And it certainly does not appear that the whole instruction was not prejudicial to appellant. We think, therefore, that for the giving of this instruction the judgment should be reversed. (It may be remarked that the propriety of counsel reading to a jury from law books is not here involved. It does not appear whether that was doue, or whether counsel merely alluded to the subject orally; but if there was such reading, it occurred without objection.)
As the case must be retried, it is necessary to notice one or two other matters.
3. In the instructions given upon the subject of insanity, there was no error prejudicial to appellant. They are somewhat voluminous; but the main proposition contained in them was, that a person is presumed to be sane until the contrary is shown, and that the burden is on a defendant of showing insanity, by a preponderance of evidence. This rule has been established in this state by a long line of authorities. (People v. Myers, 20 Cal. 518; People v. Coffman, 24 Cal. 237; People v. McDonnell, 47 Cal. 134; People v. Wilson, 49 Cal. 13; People v. Messersmith, 61 Cal. 2l6; People v. Hamilton, 62 Cal. 377; People v. Kernaghan, 72 Cal. 609; People v. Eubanks, 86 *239Cal. 295.) And this long line of decisions cannot be held to have been overruled by People v. Bushton, 80 Cal. 160, where the defense was accident, and People v. Elliott, 80 Cal. 296, where the defense was self-defense. In those cases the court was dealing entirely with those “ circumstances,” referred to in section 1105 of the Penal Code, which mitigate or justify or excuse an act done by a sane man who might commit a crime; and its attention was not called in any way to that unusual and peculiar mental condition called “ insanity ” which renders a man utterly incapable of committing crime at all. In the opinion of the court in People v. Bushton, 80 Cal. 160, reference is made to People v. Smith, 59 Cal. 607, and People v. Flanagan, 60 Cal. 3, 44 Am. Rep. 52; in which the very doctrine of the Bushton case was stated; but in those cases — where the defenses were self-defense and defense of property — the court certainly did not intend to overthrow the settled rule of the court on the subject of insanity. We are clear, therefore, that the undisturbed law of this state still is, that the burden of showing insanity is upon a defendant who seeks shelter under it as a defense.
In an instruction asked by defendant, and given, there occurs these words: “ Or if you have a reasonable doubt as to his sanity, you cannot convict him of any degree of crime, but should acquit him.” This, of course, is conflicting with the other instructions on the subject of insanity; but as it was favorable to defendant, the conflict would not, of itself, be good for reversal. At another trial this conflict can be avoided.
4. We see no error in the instructions given on the subject of intoxication. As to the instructions asked by appellant on the subject of delirium tremens, etc., it is sufficient to say that settled insanity produced by along-continued intoxication affects.responsibility in the same way as insanity produced by any other cause. But it must be “settled insanity,” and not merely a temporary *240mental condition produced by recent use of intoxicating liquor. And an instruction to that effect should be given on another trial if asked, provided there be evidence to which such an instruction would apply. There are no other ¡mints necessary to be noticed.
It may be remarked, in conclusion, that in nearly every instance where this court has solved a doubtful proposition in favor of the affirmance of the judgment, the decision has been made the basis and pretext for further excursions in the same direction into the realm of unquestionable error.
The judgment is reversed, and the cause remanded for a new trial.
De Haven, J., Sharpstein, J., Beatty, C. J., and Harrison, J., concurred.
Garoutte, J., dissenting.
The practical administration of justice should not be defeated by a too rigid adherence to a close and technical analysis of the .instructions of the lower court. And conceding this instruction to be obnoxious to criticism, of which fact I have some doubt, yet its weaknesses form too slight a basis for a reversal of the judgment in this case.
I do not believe that the fact of innocent men having been convicted in the past was a matter to be considered by the jury in making up their minds as to the guilt or innocence of this defendant. Such fact could not add to or take away one jot from the weight to be given every piece of evidence in the case. It was the duty of the jury to be convinced, beyond a reasonable doubt, from all the evidence in the case, of the guilt of the defendant, before they could convict, and the fact of innocent men having been convicted in the past should not and could not have impregnated itself into the question of reasonable doubt in any way.
The jurors in this case, under their oaths, were bound to try this defendant in the same manner, under the *241same rules of law, and give him the full benefit of all the shields with which the law surrounds every defendant, whether as a matter of fact no innocent men ever had been convicted in the past, or whether such convictions by our courts of justice were an ordinary occurrence.
I see nothing in the instruction to indicate hostility toward the defendant. The words “ sympathy ” and “prejudice,” as used, applied equally as strong in his favor as against him. If all “ defendants ” must go free, I consider would have been a more appropriate expression than if all “ criminals ” must go free; yet I do not think a jury would get the impression, and am sure that it ought not to get the impression, that by the use of the word “ criminals,” as used in the instruction, the lourt intended to refer to the defendant as one of that Aass.
I think the judgment should be affirmed.