¶1The defendant, a World War veteran, who has spent much of his time, since the World War, in asylums and hospitals, on account of his mental status, was tried and *639 convicted of murder in the first degree and sentenced to the penitentiary for life.
¶2The evidence is without dispute that defendant and his wife were in the City of Birmingham shopping; that she gave him money to go to another store to pay a bill, but instead he went to a restaurant where he came in contact, without prearrangement, with a young woman he had never seen before, and on her suggestion they went to the home of deceased in a taxicab, where defendant for the first time met deceased and deceased's wife and a Miss Gilly; that all went into deceased's house on invitation, and all except deceased drank whiskey out of a pint bottle of whiskey which appellant and his companion carried to the house. The deceased and Miss Gilly went on the porch and sat in the swing, deceased declining to drink, the others remaining in the kitchen. Soon thereafter, deceased's wife came out of the house on to the porch and stated to her husband that appellant had torn her dress and slapped her down. From this incident a sudden rencounter ensued, between defendant and deceased, in which defendant cut Hammett, the deceased, across the abdomen, making an incision some six inches or more in length, causing his intestines to come out into his shirt. Hammett died thirty days later from peritonitis incident to the wound.
¶3The weight of the evidence goes to show that the defendant is mentally abnormal, and much tended to show that he was suffering from a disease of the mind. The weight of the evidence goes to show that defendant was afflicted with an irresistable craving for intoxicating liquors, and when under its influence is criminally insane.
¶4The case went to the trial on the plea of not guilty, and "not guilty by reason of insanity," and while it may be conceded that the evidence afforded an inference that defendant's act in cutting Hammett was deliberate and premeditated, it would be more nearly correct to say that such finding is based on mere conjecture.
¶5The legal test of accountability, under the plea of not guilty by reason of insanity, is the mental ability, at the time of the commission of the crime, to discriminate between right and wrong in respect to the offense charged in the indictment, with the ability to refrain from doing wrong. Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am.Rep. 193; Boyle v. State, 229 Ala. 212, 154 So. 575.
¶6Ordinarily, under similar facts and circumstances attending the commission of the offense — the question of insanity aside — the trial would probably have resulted in a verdict of murder in the second degree. The severity of the punishment inflicted, is, in the opinion of the writer, attributable to the looseness with which the trial was conducted and a mass of illegal and immaterial evidence brought into the case by the state, some of which was received without objection by the defendant or his counsel.
¶7The state was allowed to show, over defendant's timely objections, that deceased's wife was dead; that she died since the rencounter between the defendant and deceased, of pneumonia. The evidence was clearly immaterial and had a tendency to engender sympathy for the deceased and excite prejudice against the defendant. Its effect on the jury can not be estimated. Blevins v. State, 204 Ala. 476, 85 So. 817.
¶8The state's expert witness, Dr. Kay, was without objections, not only allowed to give his opinion, from his examination, observation and knowledge of defendant, of the defendant's insanity in general, but was allowed to give a second-hand rendition of the conclusions of the members of the board of physicians of the Bryce Hospital to the effect that the defendant was sane. To quote: "It was the unanimous opinion ofthe medical staff that Mr. Grammer was not insane, at all conferences that discussed it. That was based on our review of the history of the case, his behavior in the hospital our examinations of him and our observations of him during the time he was in the hospital. The staff notified Dr. Partlow, or gavehim the record. Dr. Partlow is the administrative head of the hospital — the superintendent. And when we had disposed of the case and recommended his return to the court as not being insane, then Dr. Partlow wrote a letter based upon that information, to the effect that he was not insane and should be returned to the court for their further disposition. There were seven physicians and the clinical director on the staff conference. Not all are present at all times at these conferences. There were six present at the first conference; there were seven present at the last conference, the ones that finally decided, after all of our observations, that he was not insane and recommended his return to the court. … Yes, I have the letter that was written to the Judge, or the Solicitor, I am *640 not sure which. Here is the letter to the Judge. And another letter a little more descriptive. … I believe, though,like many people, that he doesn't always take into consideration the price he has to pay for the things he does, and particularly when drinking; and, according to the history, he drank often, and he was most dangerous and vicious in his reaction; and it was my feeling and the feeling of the rest ofthe medical staff that, while he was not insane, he was such acharacter that it wouldn't be safe to release him upon society;and that whenever he drank that that potential menace was stillpresent." [Italics supplied.]
¶9Much of this testimony was not only second-hand, mere hearsay, but the right to test the competency of the other persons participating in the conferences, and the right of cross-examination was denied. The utterances of the witness last above italicized, constituted the witness Judge and Jury, and no doubt went far in influencing the jury in returning a verdict of murder in the first degree.
¶10The defendant did not testify as a witness, nevertheless, the court, over timely objections, allowed the state on the cross-examination of the defendant's wife, who did testify as a witness in his behalf, to bring into the case an impossible fact — that the defendant was convicted in Montgomery, some five or six years previous to the offense for which he was on trial, for an assault with a weapon and sentenced to thepenitentiary. And it was developed before the court's final ruling on the question, that the witness's only knowledge in respect to the matter was hearsay. This testimony in no way affected the credibility of the witness's testimony and shed no light on the question at issue between the parties — whether or not defendant was sane at the time he cut Hammett. Its only effect was to prejudice the jury against the defendant, and no doubt to some degree influenced the verdict for murder in the first degree.
¶11To my mind, the verdict finding the defendant guilty of murder in the first degree is contrary to the great weight of the evidence, and the court erred in denying the motion for new trial.
¶12For the errors noted, the judgment should be reversed.