Lewis, J.
It appears from the record that on April 17,1900, James L. Baker was indicted by the grand jury of Fulton county for the murder of Ms wife, alleged to have occurred on the 13th of that month, and that on April 19,1900, he was tried, convicted, and sentenced to be hanged for the crime. No plea of Msanity was filed on the trial. A new trial was moved for in Baker’s behalf, and one of the grounds of the motion was that Baker was Msane at the time he did the killing. Evidence was presented pro and con upon this •question, and the trial judge overruled the motion. A writ of error was taken to this court, and the judgment overruhng the motion was here affirmed. Baker v. State, 111 Ga. 141. After tMs, Mrs. M. J. Sears, as the next friend of James L. Baker, on September 4, 1900, presented to Hon. John S. Candler, judge of the superior courts of the Stone Mountain circuit, presiding M the criminal branch of Fulton superior court, her petition allegmg that James L. Baker is Msane, “and the condition of his mind is such that the sentence of the court, to wit, that he should be hanged, ought not to be carried Mto effect.” To the petition was attached the affidavit of Dr. W. M. Curtis, who made oath that he was a practicing physician of Atlanta, Ga., that he had seen and examined Baker, [384]*384and that in his opinion Baker was at that time of unsound mind, and in such mental condition that the question of his sanity should be tried before a jury under the terms of the law. This petition was amended by adding thereto the affidavit of Dr. Marion Hull, also a practicing physician of Atlanta, Ga., who made oath that since the trial, conviction, and sentence of Baker in the superior court of Fulton county for the offense of murder, he had examined said Baker, and that he (Baker) was, at the time of making said affidavit (September 4, 1900), an insane person. Affiant further swore that he was a practicing physician of Atlanta, Ga., and that because of the unsoundness of mind of Baker he should be tried upon the question of sanity before a jury. Mrs. Sears verified her petition under oath, and stated that she was the aunt of Baker. The petition prayed for an order directing a trial before a jury upon the question of sanity or insanity of Baker, and for all other proceedings that may he necessary or proper to determine the matter in accordance with the provisions of the statute in such cases. After considering the matter presented by the petition, amendment, and affidavits in support thereof, the judge below, on September 8, 1900, passed an order overruling the petition, and refusing to grant the trial asked for. Upon this judgment of the court petitioner specifically assigns error in her bill of exceptions.
1. This proceeding was instituted under the provisions of the act approved December 21, 1897 (Acts 1897, pp. 41-43). It will ..be noted from the first section of that act that it amends section 1047 of the Penal Code by striking therefrom in the third line the» clause, “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 sanity,” and in lieu thereof inserts the following clause: “Upon the oath of a practicing physician the question of sanity of said convict shall he tried by the superior court of the county in which he has been sentenced, and he shall be entitled to a jury of twenty-four men, from which the State shall be entitled to six peremptory strikes, and the convict to be entitled to six peremptory strikes, said jury to be regularly drawn from the jury box of said superior court.” Section 5 of the act prescribes that said section of the code when amended shall read as follows: “If, after any convict shall have been sentenced to the punishment of death, he shall become insane, upon the oath of a practicing physi[385]*385cian the question of the sanity of said convict shall be tried by the superior court of the county in which he has been sentenced, and he shall be entitled to a jury of twenty-four men, from which the State shall be entitled to six peremptory strikes, and the convict to be entitled to six peremptory strikes, said jury to be regularly drawn from the jury box of said superior court.” That section further prescribes the oath to be administered to the jury, and that if the jury find the convict insane, the sheriff shall suspend execution of the sentence, and the presiding judge of the circuit shall cause the same to be entered on the minutes of the superior court of the county where the conviction was had. It further provides that the presiding judge, shall charge the jury on the question submitted, as in other cases, and if the jury shall find the convict sane he shall be entitled to have no other trial as to his insanity upon any new application for a trial thereof.
The judge of the court below, in his order refusing the prayer of the petition, seems to rely mainly upon the fact that neither of the affidavits of the two physicians, which were attached to the petition, nor the petition itself charged that this alleged insanity arose after the conviction and sentence of Baker; and that no effort whatever was made to show that Baker had become insane since his trial, conviction, and sentence. It is a fact, we think, worthy of notice in this connection, that it does not appear from the record before us that the State’s counsel, or any one in behalf of the State, presented any demurrer to the petition or affidavits. The solicitor-general in his brief says: “ If the affidavit of the physician, in this case, is a compliance with the requirements of the act of 1897, it seems to me that the sanity of James L! Baker should be submitted to and passed upon by a jury. While the affidavits do not say that Baker has become insane since his trial and conviction, they do say that he is now insane, and there having been no plea of insanity on his trial for murder, the law presuming every man to be of sound mind, if he is now insane, it follows as a corollary that he must have become insane since his conviction.” The above seems to furnish a very potent reason why the solicitor-general did not see fit to demur to the sufficiency of the affidavits. The truth is, the argument strikes us as being unanswerable. Even if the act requires that the physician’s affidavit on its face should show that the convict had become insane after Iris sentence, this is the logical and [386]*386legal conclusion necessarily deducible from the facts stated in the affidavits of the two physicians in the present case. A verdict of guilty and sentence of the court thereon establishes beyond doubt, from a legal point of view, that the accused was sane when the crime was committed, and at the time of his trial and sentence. The two physicians swore positively to his insane condition at the time their oaths were made, which was after this sentence. They further swore that he is a fit subject to have the question of Iris sanity or insanity tested before a jury according to the statute in such cases made and provided; and it necessarily follows that he must have become insane since his conviction and sentence. We do not think, upon an examination of the act in question, that it by any means necessarily follows that the legislature did not intend that the judge should pay any respect to the affidavit of a physician unless he positively swore the convict became insane after bis sentence.
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Lewis, J.
It appears from the record that on April 17,1900, James L. Baker was indicted by the grand jury of Fulton county for the murder of Ms wife, alleged to have occurred on the 13th of that month, and that on April 19,1900, he was tried, convicted, and sentenced to be hanged for the crime. No plea of Msanity was filed on the trial. A new trial was moved for in Baker’s behalf, and one of the grounds of the motion was that Baker was Msane at the time he did the killing. Evidence was presented pro and con upon this •question, and the trial judge overruled the motion. A writ of error was taken to this court, and the judgment overruhng the motion was here affirmed. Baker v. State, 111 Ga. 141. After tMs, Mrs. M. J. Sears, as the next friend of James L. Baker, on September 4, 1900, presented to Hon. John S. Candler, judge of the superior courts of the Stone Mountain circuit, presiding M the criminal branch of Fulton superior court, her petition allegmg that James L. Baker is Msane, “and the condition of his mind is such that the sentence of the court, to wit, that he should be hanged, ought not to be carried Mto effect.” To the petition was attached the affidavit of Dr. W. M. Curtis, who made oath that he was a practicing physician of Atlanta, Ga., that he had seen and examined Baker, [384]*384and that in his opinion Baker was at that time of unsound mind, and in such mental condition that the question of his sanity should be tried before a jury under the terms of the law. This petition was amended by adding thereto the affidavit of Dr. Marion Hull, also a practicing physician of Atlanta, Ga., who made oath that since the trial, conviction, and sentence of Baker in the superior court of Fulton county for the offense of murder, he had examined said Baker, and that he (Baker) was, at the time of making said affidavit (September 4, 1900), an insane person. Affiant further swore that he was a practicing physician of Atlanta, Ga., and that because of the unsoundness of mind of Baker he should be tried upon the question of sanity before a jury. Mrs. Sears verified her petition under oath, and stated that she was the aunt of Baker. The petition prayed for an order directing a trial before a jury upon the question of sanity or insanity of Baker, and for all other proceedings that may he necessary or proper to determine the matter in accordance with the provisions of the statute in such cases. After considering the matter presented by the petition, amendment, and affidavits in support thereof, the judge below, on September 8, 1900, passed an order overruling the petition, and refusing to grant the trial asked for. Upon this judgment of the court petitioner specifically assigns error in her bill of exceptions.
1. This proceeding was instituted under the provisions of the act approved December 21, 1897 (Acts 1897, pp. 41-43). It will ..be noted from the first section of that act that it amends section 1047 of the Penal Code by striking therefrom in the third line the» clause, “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 sanity,” and in lieu thereof inserts the following clause: “Upon the oath of a practicing physician the question of sanity of said convict shall he tried by the superior court of the county in which he has been sentenced, and he shall be entitled to a jury of twenty-four men, from which the State shall be entitled to six peremptory strikes, and the convict to be entitled to six peremptory strikes, said jury to be regularly drawn from the jury box of said superior court.” Section 5 of the act prescribes that said section of the code when amended shall read as follows: “If, after any convict shall have been sentenced to the punishment of death, he shall become insane, upon the oath of a practicing physi[385]*385cian the question of the sanity of said convict shall be tried by the superior court of the county in which he has been sentenced, and he shall be entitled to a jury of twenty-four men, from which the State shall be entitled to six peremptory strikes, and the convict to be entitled to six peremptory strikes, said jury to be regularly drawn from the jury box of said superior court.” That section further prescribes the oath to be administered to the jury, and that if the jury find the convict insane, the sheriff shall suspend execution of the sentence, and the presiding judge of the circuit shall cause the same to be entered on the minutes of the superior court of the county where the conviction was had. It further provides that the presiding judge, shall charge the jury on the question submitted, as in other cases, and if the jury shall find the convict sane he shall be entitled to have no other trial as to his insanity upon any new application for a trial thereof.
The judge of the court below, in his order refusing the prayer of the petition, seems to rely mainly upon the fact that neither of the affidavits of the two physicians, which were attached to the petition, nor the petition itself charged that this alleged insanity arose after the conviction and sentence of Baker; and that no effort whatever was made to show that Baker had become insane since his trial, conviction, and sentence. It is a fact, we think, worthy of notice in this connection, that it does not appear from the record before us that the State’s counsel, or any one in behalf of the State, presented any demurrer to the petition or affidavits. The solicitor-general in his brief says: “ If the affidavit of the physician, in this case, is a compliance with the requirements of the act of 1897, it seems to me that the sanity of James L! Baker should be submitted to and passed upon by a jury. While the affidavits do not say that Baker has become insane since his trial and conviction, they do say that he is now insane, and there having been no plea of insanity on his trial for murder, the law presuming every man to be of sound mind, if he is now insane, it follows as a corollary that he must have become insane since his conviction.” The above seems to furnish a very potent reason why the solicitor-general did not see fit to demur to the sufficiency of the affidavits. The truth is, the argument strikes us as being unanswerable. Even if the act requires that the physician’s affidavit on its face should show that the convict had become insane after Iris sentence, this is the logical and [386]*386legal conclusion necessarily deducible from the facts stated in the affidavits of the two physicians in the present case. A verdict of guilty and sentence of the court thereon establishes beyond doubt, from a legal point of view, that the accused was sane when the crime was committed, and at the time of his trial and sentence. The two physicians swore positively to his insane condition at the time their oaths were made, which was after this sentence. They further swore that he is a fit subject to have the question of Iris sanity or insanity tested before a jury according to the statute in such cases made and provided; and it necessarily follows that he must have become insane since his conviction and sentence. We do not think, upon an examination of the act in question, that it by any means necessarily follows that the legislature did not intend that the judge should pay any respect to the affidavit of a physician unless he positively swore the convict became insane after bis sentence. We think it is entirely consistent for the judge to act upon the testimony of a physician who may never have had any acquaintance with the convict prior to his conviction, and the very fact of the physician swearing that Baker was insane at a time since the sentence is certainly sufficient for the judge to infer that the oath means that he became insane since.his trial, and there is enough in such an oath to at least have the investigation made by jury trial as prescribed by the statute. ' Nowhere in the act, from beginning to end, does it appear that any petition was contemplated, and hence nothing is said with reference to what such a petition should allege. We do not mean to say that a next friend of an alleged insane convict would not have the right to present affidavits of physicians showing insanity after sentence, and also file, in the interest of the convict, a petition praying for the trial of his sanity or insanity before, a jury. As the act, however, makes no provision about a petition, and does not seem to contemplate such a proceeding, but does require the physician’s affidavit, without undertaking to prescribe any particular form for such an affidavit, we think the judge should be governed by its contents, regardless of any informalities that might appear in the petition by next friend, even if any should ■exist in this case; and when the affidavits are sufficient, as in the present instance, we do- not think the law leaves it discretionary with the judge as to whether he shall give the convict a trial before the jury on the issue of his sanity or insanity. The act itself [387]*387■does not seem to leave but one thing discretionary with the judge, ■and that is the right to appoint a special term for such a trial. We enter into no discussion or decision on the sufficiency of the petition filed hy the next friend of the convict. Under the statute, what the judge has to look to are the affidavits of these practicing physicians; and they would have been as effective in law, if they had heen presented by this next friend, or any other person in behalf of the convict, without being accompanied by a written petition.
2. The judge further says, in his order refusing to grant the prayer of the petition, that even if the allegations in the petition and the affidavits were sufficient, the defendant, in his motion for .a new trial, having insisted upon his insanity previous to the commission of the act and at its commission, should now be estopped from claiming that he has become insane since the conviction. The trial to which the judge refers is the motion for a new trial the accused made after his conviction above mentioned. That was an entirely different proceeding from the one at present instituted. There does not seem to have been any attempt at all in that motion to go into an investigation as to whether insanity had developed in the mind of this convict after his conviction. In fact that would not have been a proper ground in a motion for a new trial; for where the insanity overcomes the accused after the termination of his trial and sentence thereunder, the act of 1897, above cited, provides that the issue shall be tried before a jury, and how it shall be tried.
3. We think the affidavits in this case are sufficient to require the judge to grant the prayer of this petition, and to summon a jury for the purpose of trying the question as to whether the accused has become insane since his conviction and sentence. His judgment, therefore, dismissing the petition, should be reversed.
Judgment reversed.
All the Justices conctorring, except Lumplcin, P. J., and Fish, J., who dissent.