Irvine, C.
Otto Snider was convicted of the statutory offense of placing, an obstruction on a railway track, and brings the proceeding's here for review.
One group of assignments of error relates to the admission in evidence of certain confessions. The objection to this evidence ivas, in effect, that it ivas not sufficiently shown that the confessions were voluntary. Ballard v. State, 19 Neb. 609" court="Neb." date_filed="1886-01-15" href="https://app.midpage.ai/document/ballard-v-state-6644849?utm_source=webapp" opinion_id="6644849">19 Neb. 609, is relied on in support of the objection. It was there held that an officer may testify to statements made to him by the defendant while in custody if it is shown that they were made voluntarily and without inducements of hope or fear having been made or offered by the officer or any other person. It is said that the evidence was here insufficient to satisfy the condition, because it was only shown what ivas said; that menaces were not excluded nor were inducements by others. It would be useless to set out the evidence at length. It was shown that while others were in sight, no other persons than the defendant and those to whom the confessions Avere made took part in the conversation, or probably heard it. The witnesses narrated all that occurred, and this affirmative eAddeuce excluded any hypothesis of inducements of any character. By showing what the witnesses did say, and all that they said, it was shoAvn as AArell ais by direct negative evidence that neither promises nor menaces existed. It is hardly ever possible to abso*311lately exclude the possibility of the influence of some previous inducement held out by a 'Stranger and not known to the witness by whom it is sought to prove the confession. H’ere circumstances were proved rendering it highly improbable that there had been such previous inducements, and there was no evidence that there were or might have been such. This was sufficient.
By another group of assignments certain rulings are challenged whereby the court struck out answers of witnesses relating to defendant’s mental condition. These witnesses were not experts. Counsel were endeavoring to elicit from them facts throwing light on the question of defendant’s sanity. The answers stricken out were in the nature of opinions or inferences from observed facts not previously narrated; for instance, “he appeared not to understand things.” In each instance the court struck out such answers, but permitted further questions to be asked calling out the facts which gave rise to such opinions, and finally, after the facts were so narrated, permitted answers to categorical questions eliciting the opinion of witnesses, derived from those facts, as to defendant’s sanity. In so doing the court pursued strictly and correctly the rule established by several decisions of this court Which have been recently reviewed and the rules thereby established again enforced in Lamb v. Lynch, 56 Neb. 135" court="Neb." date_filed="1898-09-23" href="https://app.midpage.ai/document/lamb-v-lynch-6652272?utm_source=webapp" opinion_id="6652272">56 Neb. 135.
The following instruction was given: “You are instructed that the law presumes every one to be sane and responsible for his acts until the contrary appears from the evidence; but if there is evidence in the case tending to rebut this presumption. and sufficient to raise a reasonable doubt on the issue of insanity, then the burden of proof is upon the state to show by the evidence, beyond a reasonable doubt, that the defendant was sane, as explained in these instructions, at the time the alleged offense was committed.” This instruction was erroneous in that it shifted the burden of proof until such point as the evidence should be sufficient to raise a reasonable *312doubt. The rule is that the burden does not shift in a criminal case. In the absence of any evidence tending to show insanity, the presumption of sanity satisfies the requirements of the law; but as soon as there is any evidence tending to show insanity, then the state must convince the jury of sanity, as of every other element of guilt. It is not necessary t'h'at there must first • be evidence sufficient to raise a reasonable doubt. The attorney general calls attention to the fact that the instruction assailed appears in a work on Instructions to Juries as applicable to those states where, as here, the rule is that the burden does not shift. This fact only serves to show with what caution resort must be had to this, perhaps the most dangerous, class of text-books. It does appear in the work referred to and in the connection stated, but the only case cited as sustaining it is Commonwealth v. McKie, 1 Gray [Mass.] 61. In that case there was no issue of insanity. It was a prosecution for assault and battery, and the trial judge had instructed that- if the bare fact of the battery had been proved, the burden was upon the defendant to show justification. This was held bad because it shifted the burden, the court adding to its discussion: “There may be cases where a defendant relies on some distinct, substantive ground of defense to a criminal charge, not necessarily connected Avith the transaction on which the indictment is founded (such as insanity, for instance), in which the burden of proof is shifted upon the defendant. But in cases like the present (and we do not intend to express an opinion beyond the precise case before us) * * * the burden of proof does not change.” It will be.seen that this is not even an oliter dictum in support of such an instruction; it is only an effort by the court to prevent an inference to be drawn either way. Nevertheless, the same court a little later (Commonwealth v. Eddy, 7 Gray [Mass.] 583) did hold that while the burden is throughout on the commonwealth, it is satisfied as to sanity by the presumption thereof, and if insanity be a defense the defendant must *313prove it by a preponderance of the evidence—a conclusion directly opposed to the uniform rule in this state. The court by such an instruction in effect says that the jury is not to look constantly to see if the state has proved guilt, but, if insanity is a question, it must first look at the case from the standpoint of guilt, and see if there is affirmative evidence of insanity sufficient to acquit, and only then recur to the proper point of view. That it is erroneous is shown by many of our decisions. They are reviewed in Peyton v. State, 54 Neb. 188" court="Neb." date_filed="1898-03-17" href="https://app.midpage.ai/document/peyton-v-state-6651788?utm_source=webapp" opinion_id="6651788">54 Neb. 188. In that case an instruction contained a similar vice, and While it related to an alibi, it is in point, because, as shown by the cases there cited, this court has always refused its assent to the doctrine that as to the burden of proof there is a distinction between essential elements of the offense and what the Massachusetts court styles a “distinct, substantive ground of defense.”
Reversed and rebianded.