¶1(dissenting).
¶2The majority opinion Correctly states'the ' facts and likewise the law. Its, error, in my judgment, is in applying these undisputed facts to a simple rule of law and then reaching an unsound and illogical conclusion. To me the error is so manifest that I 'cannot let it . pass without registering. the' reasons for. my inability to agree with my, learned brethren.
¶3I cannot state1 the law more clearly or móre concisely than does the-majority opin-'-ion. Nor can I make the fácts stand up and cry'out in any louder tones for the correct' application of the rule than does the majority opinion. I will forego the strong temptation to repeat the rule and to restate the facts,' which so' convincingly show fhat in applying them to the rule the court should have submitted to the jury under an appropriate instruction the question of whether or not accused at the time of the killing was mentally unbalanced to the extent that he did not know the nature and quality of his act, or had not sufficient reason to,.know right from wrong.
¶4As strange '¿s it' may seem in the face of the testimony,' the majority of the court say there is not' a shred of evidence in the record that at > the time the offence was committed ■ accused ‘ was without sufficient reason to know the 'nature and quality of his act, or had not sufficient reason to know right from ‘wrong. '
¶5It- is difficult to see how the majority could have overlooked - the rule that proof' of insanity of accused a reasonable length of time before or after the crime is competent evidence to submit to the jury to enable it. to determine whether ,or not the same condition of mind existed at the time the crime was committed. I say this because their attention was called to Sharp v. Com., 308 Ky. 765, 215 S.W.2d 983, where the rule is plainly stated, as well as o.ther authorities to the same effect. Unfortunately, the majority do not appear to understand that the question of whether or not accused was of ..unsound mind at the time of the killing was for the jury’s determination under a proper instruction and not a question of law for this court to determine.
¶6If the majority opinion should be followed in the future, and I sincerely hope it will not be, I cannot understand how ' in any criminal case a question of an accused’s sanity can be submitted to a jury, unless he is examined by a score of physicians either a few minutes preceding or a few minutes succeeding the -crime and' such physicians pronounce him insane. According to the majority opinión, the testimony of one physician who examined accused five days after the crime and found him irrational from" a diabetic condition which had existed for several months and in the most advanced stage the doctor had ever encountered without being accompanied by a complete unconsciousness, was not sufficient to require an insanity instruction; even though fortified by lay testimony that accused was lost in his own community immediately after the shooting, and the next day said he had’ shot a friend, when his victim was a complete stranger.
¶7For the reasons given I most respectfully dissent.