
    BAUGHN, next friend, v. THE STATE.
    1. There is no law of force in this State which makes it incumupon a judge of the superior court, at the time when judgment is to be entered or after it has been entered, to allow or order a judicial investigation concerning the mental-condition of one against whom a lawful verdict of guilty has been rendered in a capital case and who has thereby become subject to the penalty of death; nor in either instance is a refusal by such judge to enter upon an investigation of this kind, with or without the aid of a jury, a denial to the prisoner of “due process of law.”
    2. The provisions of the code relating to inquisitions in such matters are sufficiently comprehensive to cover all cases where-the alleged insanity begins at any time after the rendition of the verdict of guilty.
    Argued November 30, 1896.
    Reargued January 29,
    Decided March 12, 1897.
    Petition. Before Judge Smith. Twiggs superior court. April term, 1896.
    
      Marion Harris and 'Q-lmn & Rountree, for plaintiff m error. J. M. Terrell, attorney-general, and Tom Easonr solicitor-general, confería.
   Cobb, Justice.

At a special term of the superior court of Twiggs county in July, 1895, Elizabeth Robles was tried for the -offense of murder, and upon conviction was sentenced to death. The sentence “having been legally suspended and superseded by order of the court, the case came on to be heard before-the court” on June 23/1896, “for the purpose of passing sentence of death in accordance with the verdict of guilty rendered.” At this term Baughn, the plaintiff in error, as the next friend of the condemned woman, appeared, and in her behalf objected to the sentence of death being passed,, on the ground that she was then insane, and in his application prayed the count for a trial by jury of the said question of insanity; that the court cause jurors to be regularly summoned and impaneled to try said issue, and that such other proceedings be had in that regard as -are usually incident to -trials in said court; that petitioner have the right to the-court’s process to- compel the attendance of witnesses, and to snch other process as may be right and necessary; and that-said sentence be- postponed and superseded until the final adjudication of the question.” The court declined to- entertain the -application and refused “each and every prayer” thereof, -and fixed the -time for the execution of the sentence ■on August 7, 1896. Thereupon Baughn, in the same capacity as above stated, by petition alleged that Elizabeth Nobles was them insane, and that it was contrary to the policy of the law and illegal that the sentence of death should he exe■cuted; and prayed “that the court cause jurors to be regularly summoned and impaneled to try said issue, and that .such other proceedings be had in that regard as are usually incident to trials in said court, and that petitioner have the right to the court’s process to compel the attendance of witnesses, and such other process as may he right and necessary, .and that said sentence of death be suspended and superseded until the final adjudication of the question.” The count refused to' entertain the petition .and denied “each and every prayer” of the same. The error complained of is the refusal of the judge to' entertain these petitions and grant the prayers therein contained; it being claimed that the question of the insanity of 'the convicted woman should he inquired •of by a jury in the superior court according t'o the forms of procedure usually incident to trials in that court, that the refusal of the judge to- submit this question to a jury is a ■denial to the prisoner of the due process of law, and that there is no proceeding authorized by any statute law of Georgia which amounts to due process of law in such cases, the procedure provided in Penal Code, §1047, not being judicial in its nature.

“A lunatic or person insane, without lucid intervals, shall not be found guilty of any crime or misdemeanor with which ho may be charged: provided, the act so charged as criminal was committed in the condition of such lunacy or insanity; but if a lunatic has lucid intervals of understanding, he shall answer for what he does in those intervals as if he had no deficiency.” Penal Code, §35. The section quoted clearly shows that under the law of this State no person can he legally convicted of a crime committed while in a moment of irresponsibility growing out of an unsound mind. If the person charged with the crime desires to avail himself of the provisions of this law and urge his insanity as a defense to-a crime for which he stands indicted, no special plea of any character is necessary, as this defense will 'he allowed under-the plea of not guilty. Danforth v. The State, 75 Ga. 614.

“Whenever the plea of insanity is filed, it shall be the-duty of the court to cause the issue on "that plea to he first tried by a special jury, and if found to he true, the court shall order the defendant to be delivered to the superintendent of the asylum, there to remain until discharged in the-manner prescribed by law.” Penal Code, §-951. This section secures to a person charged with a crime the right to' have the question of his mental -condition at the -time of tire trial inquired into before being required to plead to the in-' dictment. Long v. The State, 38 Ga. 491.

“If, after any convict shall have -been sentenced to the-punishment of death, he shall become insane, the sheriff of' the county, with the concurrence and assistance of the ordinary thereof, shall summon a jury of twelve men to inquire into such insanity. The following oath shall he administered to the jury, to wit: You, and each of you, do solemnly swear (or affirm) that you will well and truly try' this issue of insanity between the State and A. B., now condemned to die, and a true verdict give -according to the ■ evidence. • So help you God.’ If it he found, by the inquisition of such jury, that the convict is insane, the sheriff shall suspend the execution of the sentence, and make report of' the inquisition and suspension of the execution to the presiding judge of the circuit, who- shall cause the same to he ■ entered on the minutes of 'the superior court óf the county where the conviction was had.” Penal Code, §1047.

The sections aibove quoted embrace all of the law of force in this State which relate to -the subject of an inquiry into-the mental condition of a person charged with or convicted of a criminal offense. If insane at the time the act is committed, he shall noit he convicted. The section first above - quoted gives him the right to have the question of his mental condition at this time inquired of strictly in accord with procedure usual in courts of justice in this State. Whether he he sane or insane at the time of the commission of the act, the section second above quoted provides for him a trial according to the usual rules of procedure in force in this State on the question of his mental condition at the time that he is placed on trial, and guarantees to him that he shall not be tried while he is in a condition of insanity. At every stage of the trial where an accused person could raise the question of his mental condition at common law before conviction, the law of force in this State gives the defendant the right to raise such question and accords to him an opportunity to have the question tried according to the procedure usual in the courts of the State:

The question made in this record is, can the prisoner after conviction, according to law, of a capital offense, demand a trial by a jury in the superior court on the question of his mental condition, in order that the insanity, if established, may operate to suspend the execution of the judgment in the case ? The record shows that Elizabeth Nobles was convicted and sentenced to death in July, 1895, and that the sentence was not executed. She was called before the court in June, 1896, not for the purpose of being sentenced, because the .sentence had been already imposed, but for the purpose of fixing a new time for the execution of the sentence. A person convicted of a capital offense is never sentenced under the law of this State but one time; the sentence is the conclusion of the record, and once entered, the record is complete: It may be that the time fixed in the sentence expires, but the sentence stands in full force. Therefore, the life of Elizabeth Nobles was aibsblutely forfeited by -the verdict and the judgment or sentence which was rendered in July, 1895; and if execution ever takes place, it will be by virtue of this sentence, though at a different time than that originally named. "What is commonly referred to as a -resentence is only the fixing of a new time for the execution of a sentence. The language of the Penal Code, §1046, in reference to providing a time for the execution of the death sentence, seems to be conclusive of the question that one •sentence is all that is ever imposed in a capital case, and that that sentence is to be executed, either at the time fixed therein or at such other time as the judge, or other lawful authority of this State, shall fix thereafter. “Whenever, for any reason, any convict sentenced to the punishment of •death shall not have been executed pursuant to such sentence, and the same shall stand in full force, the presiding judge of the superior court where the conviction was had, on the application of the solicitor-general of the cir•cuit, or other person prosecuting for the State, shall issue a habeas corpus to bring such convict before him; or if ;such convict be at large, said judge, or any judicial officer of this State, may issue a warrant for his apprehension; and upon the convict being brought before the judge, •either by habeas corpus, or under such warrant, he shall proceed to inquire into the facts and circumstances of the case, and if no legal reason exists against the execution of the sentence, he shall sign and issue a warrant to the ■sheriff of the proper county, commanding him to do execution of such sentence at such time and place as shall be appointed therein, which the sheriff shall do accordingly; and the judge shall cause the proceedings to be entered on the minutes of the superior court of the ■counity.” In the case of Harris v. The State, 2 Ga. 290, where complaint was made that' the prisoner was improperly sentenced under the provisions of the law contained -in the section above quoted, the court say: “The sentence was suspended by the supersedeas consequent upon the first bill of exceptions, until the same was affirmed by this court by the dismissal of the case. It was then in full -force. The court below, therefore, had the right, under the code, upon habeas corpus to command the sheriff to do execution of the sentence.” If we are correct in this interpretation, then, on June 23, 1896, when the prisoner was-brought before the court for the purpose of being sentenced, she was already under sentence of death, the same-having been pronounced in July, 1895; and therefore an application for an investigation into her mental condition could have been had according to the exact terms of the law as embodied in Penal Code, §1047, providing for such investigation, that is, she was a convict who had been sentenced to the punishment of death, and her presence before-the court was simply for the purpose of fixing a time for the-execution of such sentence. This being true, it is not -necessary to decide what would be the right of a person who demanded an investigation into his mental condition in order to establish the fact that ho became insane after verdict and before sentence. If it were necessary to decide this question, it could be with propriety held that the prisoner was not entitled to be heard upon this question between verdict and sentence, because there was no necessity for such hearing. Without sentence the verdict can never be carried into effect; the moment that sentence is pronounced, the right to apply for an investigation under section 1047 of the-Penal Code is complete. We therefore treat this as the-application of a person convicted and sentenced to have the question of her mental condition tried by a jury in the superior court according to the forms of procedure incident to investigations in that court. Has a convict the right, after verdict and sentence, and his life according to “due process of law” thus forfeited to the State, to demand as “due process' of law,” that his mental condition shall be inquired into, in order to determine whether the judgment of the court shall go into execution? “Inasmuch as the stage of criminal procedure known as pleading has been passed at the time when, after conviction, the issue as to insanity in bar of sentence is asked for, the point as to a constitutional right may not be involved.” Garris Trial of Lunatics, 87. In the case of Laros v. Commonwealth, 84 Penn. St., pp. 200, 210, the court say: “The last three assignments of error raise a single question upon the power of the court to inquire by inspection and per testes into the insanity of the prisoner since verdict. We have no precedents in this State, known to us, how the inquiry shall be conducted when such a plea in bar of sentence is put in. It seems to-us, however, that no right of trial by jury is involved in the question A jury having found a verdict against the plea of insanity when set up as a defense to conviction, subsequent insanity cannot be set up in disproof of conviction. The plea at this stage is only an appeal to the humanity of the court to postpone the punishment until a recovery takes place, or as a merciful dispensation. The rights of the prisoner as an offender on trial for an offence are not involved. lie has had the benefit of a jury trial, and it is now the court only which must be satisfied on the score of humanity. If the right of trial by jury exists at all, it must exist at all times, no matter how often the plea is repeated alleging insanity occurring since the last verdict. Such a right is inconsistent with the due administration of justice. There must be a sound discretion to be exercised by the court. If a case of real doubt arise, a just judge will not fail to relieve his own conscience by submitting the fact to a jury.”

It is in the power of any person interested in the prisoner to call for an investigation under Penal Oode, §1047, or the judge himself may order the investigation. The purpose of the legislature evidently was to carry out the principle referred to in the decision above quoted, and provide a method for the trial of a question which simply involved a plea to the humanity of the court to postpone the punishment of an insane person until a recovery takes place. In the case of Jones v. The State, 13 Ala. 153, the court, in dealing with the question of insanity at the time of trial, say: “Although we are of opinion that the facts disclosed in the bill of exceptions might well have warranted the preliminary inquiry as to the prisoner’s mental condition, yet this must be left to the sound discretion of the court. If, .amid the mystery and veil which surrounds the phenomena ■of mental aberration, so difficult to penetrate, the judge should be mistaken and try an insane man (as we think has been done in the case before us), it will present a case in which there may be a strong appeal to executive clemency.” In the case of Spann v. The State, 47 Ga. 551, in referring to the law now contained in Penal Code, §1047, Judge McCay says: “The stay for insanity seems to depend on the discretion of the judge at common law. 1 Hale, 370. Pie may call in a jury if he pleases. The whole proceeding is merely a stay of execution, and is based rather upon the public will, and a sense of propriety, than on any right in the prisoner. . . The whole proceeding is rather an inquiry based on public propriety and decency than a matter of right.” While the question as to whether the section under consideration was due process of law was not involved directly in the case of Carr v. The State, 98 Ga. 91, sitdll, in passing upon the right of the superior court to review a proceeding under that section by certiorari, the majority of the court recognized the proceeding as being “rather an inquiry based on public propriety and decency, than upon any right of the defendant.” The effect of that decision was to hold that no judicial investigation was required to be given to a person as a matter of right, and that all investigations after conviction were simply to inform the court imposing sentence as to the mental condition of the prisoner, for the sole purpose of determining whether it would be consistent with public decency and propriety to take away the life of a person who had not mind enough to realize what was "being done.

There being no law of force in this State which authorizes or requires the judge of the superior court to enter into an investigation of the mental condition of Elizabeth Nobles at the time and in the manner prayed for in the petition died in her behalf, the refusal by the judge to enter into such investigation was not a denial to her of “due pro- ■ cess of law;” and there was, therefore, no error in declining to entertain such petition and in denying “each and every prayer” therein.

Judgment affirmed.

All the Justices concurring.  