x999-1" type="majority"> HENDERS OH, Judge.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty years, and prosecutes this appeal. Appellant is a deaf mute; and it was claimed he was non compos,— that is, he did not have- sufficient capacity to commit crime,—and that he did not have sufficient capacity to be placed on trial after the commission of the offense. It appears the judge of the District Court, prior to the trial of this case, was induced to impanel a jury to try defendant as to his mental capacity to commit crime or to be tried therefor, and that the jury so impaneled held appellant was of unsound mind, and he was then released by the judge on bail. Subsequently the learned judge set aside this order, and appellant was placed on trial for the offense. The court appointed two able lawyers for his defense. On his arraignment, being deaf and dumb, he stood mute. Whereupon the court ordered the plea of not guilty to be entered on his behalf. Appellant, by his attorneys, objected to the trial of appellant, saving exceptions thereto at every stage of the proceeding. The court, however, proceeded with the trial, and submitted the case to the jury; and, among other things, the question of appellant’s sanity—that is, his capacity to commit crime—was also presented to the jury, both by evidence and in the charge of the court. The trial resulted in a verdict, as above stated, as against defendant of murder in the second degree.

The only question necessary to be considered is the action of the court trying defendant under the circumstances above stated. It is urgently insisted by counsel for appellant that, the court having sub *562 mitted the issue of his sanity to a trial jury prior, to the trial, their verdict was final and binding. We are referred by appellant, in support of this contention, to the case of State v. Harris, 78 American Decisions, 272; and, also, Kinloch’s ease, cited in note to Baughm v. State (Georgia), 38 Lawyers’ Reports Annotated, 586 (same ease, 28 Southeastern Reporter, 68). In the first named case, it appears Harris, like appellant in this case, was deaf and dumb; but it was shown he could be made to understand certain arbitrary signs. The procedure was adopted in that case of trying the issue of insanity in the first instance. The jury found in favor of appellant,—that he was not capable of committing crime. His ease was appealed by the State to the Supreme Court of Horth Carolina; it being contended that, notwithstanding the verdict of the jury, appellant could be put on trial. The action of the lower court, however, was upheld. In discussing the question, the court refers with approval to two English cases: Rex v. Tyson, reported in Russ. & R., 523, and Rex v. Pritchard, 7 Car. & P., 303. If we had a rule of procedure in cases of this character marked out by statute, authorizing this method of trying such issue, then it should be pursued. Our statute authorizes, where a defendant becomes insane after conviction, and same is made known to the court, etc., that a jury shall be impaneled to try the issue. But this is after conviction, and evidently where the party becomes insane after the trial and before he is sentenced. This issue, it appears, is to be tried in the same court by a jury impaneled for that purpose. See Code Crim. Proc., arts. 982-995, inclusive. Our statute (article 39, Penal Code) provides as follows: “Ho act done in a state of insanity can be punished as an offense. Ho person who becomes insane after he committed an offense, shall be tried for the same while in such condition. Ho person who becomes insane after he is found guilty, shall be punished for the offense while in such condition.” So far as we are advised, however, the statute does not mark out any course of procedure as to a person who becomes insane after he commits an offense, except it says he shall not be tried for the same while in such condition. We might, by analogy to the procedure adopted with reference to the trial of this question of insanity after conviction and before sentence, deem it proper to pursue that method of trial. And it seems the court in this instance undertook to pursue that method. But this would not be the sole method of the trial. This issue could be submitted to the jury under the plea of not guilty (Code of Criminal Procedure, article 974), and the jury instructed to determine the issue of insanity in the first instance, and, if they determine defendant was insane at the time of the trial, to return such special verdict; and in such case appellant could not be tried until he had become sane, or at least put on trial again. This issue would have to be passed on by the jury again. We understand in this case, that it is not claimed appellant became insane after the commission of the offense; but the contention is he has always been insane. It *563 is not urged that, because he was deaf and dumb merely, he could not be punished for crime; but it is urged the impairment of his intellect must be such as that he is insane,—that is, not possessed of a sufficient capacity to know right from wrong. Now, if we concede appellant had formerly been put on trial on the issue that he had become insane after he committed the offense, and could not be tried, this would not operate as a final judgment on the status of appellant, but he could be put on trial again on this issue. And this is what we understand was the course which the court pursued in this matter. By this action he was not deprived of any right to which he was entitled under the law. But like any other- prisoner, when he stood mute, his plea of not guilty was entered for him, which is provided for by statute. He was also furnished by the court with counsel, learned in the law, for the protection of his rights, not as was anciently the practice; and they were authorized to interpose for him, under his general plea of not guilty, his defense of insanity. This defense was relied on, and evidence on this matter was adduced. There was no question as to the commission of the homicide, and under the circumstances it- was murder of either the first or second degree; and the only real inquiry in the case was as to the sanity of appellant. It was shown by him that he had been deaf and dumb all his life, and by some witnesses that he.was of weak understanding. One or two went so far as to say that he did not know the difference between right and wrong. On the other hand, the State showed for one incapacitated as he was, not being able to hear or talk, he was exceedingly bright; that he could make all his ordinary wants understood by means of the rude arbitrary signs to which he was accustomed, and that he could understand others by such signs, who were familiar with him. He had a wife and family, and seemed to be able to care for them; attending to his ordinary business affairs about the farm. These witnesses not only testify to facts, but give their opinion to the effect, that he knew it was wrong to kill a man. This issue was directly presented to the jury and submitted by the court in his charge, and they found against appellant; and we hold, even if it be conceded that he had formerly been properly tried by a jury on the question of his insanity, under the orders of the court, that this was not a bar to his subsequent prosecution for the offense; and that it was entirely competent for the court to do what it did in bringing him to trial and guaranteeing him, as was done, Ms full defense of insanity under his plea of not guilty. We find no error in the record, and the judgment is affirmed.

[Note.—Appellant’s motion for rehearing was overruled March 14, 1900, without a written opinion.—Reporter.]

Affirmed.

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