dissent">Candler, Justice,

dissenting. As shown by the record in this

case, the court charged the jury as follows: “A person shall be considered of sound mind who is neither an idiot, a lunatic, nor afflicted by insanity, or who has arrived at the age of 14 years or before that age if such person knows the distinction between good and evil.” The exception to the quoted portion of the charge was on the ground that it was confusing and misleading and in effect withdrew the defendant’s defense of insanity from the consideration of the jury since it substituted the word “or” for “and” and was therefore a misstatement of the provisions of Code § 26-301. In Douberly v. State, 184 Ga. 573 (3), supra, where the accused was indicted, tried and convicted for the offense of murder, the judge gave a charge identically like the one here complained about and it was excepted to on the ground that it “was calculated to mislead and did mislead the jury into believing that a person fourteen years of age was to be considered of sound mind as a matter of law.” On this exception the trial judge refused to grant Douberly a new trial and this court on April 14, 1937, unanimously affirmed that ruling. The charge complained of in Douberly’s case was given and unanimously approved by this court after the Code of 1933 was adopted and the ruling made by this court in his case necessarily construed § 26-301 of the 1933 Code. Since the decision rendered in Douberly’s case, insofar as it deals with the *424question here involved, has never been overruled or materially modified, it has the force and effect of a statute (Code § 6-1611; Calhoun v. Cawley, 104 Ga. 335, 30 SE 773), and is an applicable and binding precedent which this court ought to apply and follow in the instant case. The failure of the majority to apply and follow the ruling in Douberly’s case is not justified or authorized by the suggested supposition that the members of this court were unaware of the exact provisions of § 26-301 of the official Code of 1933 when they decided that case in 1937.

I am authorized to say that Chief Justice Duckworth and Justice Almand fully concur in this dissent.

Citation profile

Relationships

How this case has been treated — in progress