Opinion,
Mr. Justice Green:
The question principally discussed in this case is a novel one. It does not appear to have ever been determined or even presented in this court before. Briefly stated it is this: whether a defendant in a criminal ease who alleges his insanity at the time of arraignment is entitled, as a matter of legal right, to have a separate, independent and preliminary trial of that question by a jury specially impaneled for the purpose.
It is certainly the fact that the 66th and 67th sections of our criminal code of 1860 are substantially, almost literally, taken from the English statute of 39 and 40 Geo. III., c. 94, and that under that statute the English criminal courts do, not infrequently, award preliminary issues to determine the sanity of prisoners by the verdict of a jury. The same is true of the practice in several of our sister states. We have examined with much care the various authorities cited in the very able and exhaustive argument of the learned counsel for the plaintiff in error, and we find that in all of them the inquest was directed, generally by the court of its own motion, sometimes at the instance of the attorney general, but always in cases where the appearance and actions of the prisoner were such as to manifestly indicate a condition of insanity, either real or [237]*237simulated. In point of fact the purpose of the inquiry was to inform the conscience of the court as to the prisoner’s real condition at the time of the trial, but before the trial proceeded. There was an obvious propriety in directing an inquiry by the verdict of a jury in all such cases, because the fact itself required determination before any further proceedings were had, if there was probable ground for belief that a condition of insanity existed. If upon an examination of the prisoner there was no apparent reason to suppose him insane, but on the contrary he seemed quite capable of pleading to the indictment, there was no necessity for a preliminary trial; because every right to set up insanity, either when the offence is committed, or at the time of the trial, still remained, and could be thoroughly tried by the jury who were to try the indictment. The existence of the doubt as to the prisoner’s present insanity, is a matter which by the very necessity of the case could only be determined by the court itself. Up to the time of pleading there is no other tribunal which has the prisoner in charge, and there is no other which can say whether there is a doubt upon that subject. It is one of the functions which must be intrusted to the court, and it is not to be presumed that it will in any case be abused. If it should be, there is still the remedy available in all cases where abuse of discretion has taken place.
In the cases in which this subject has received consideration, the doctrine has been expressed in accordance with these views. In Whart. Crim. Law, 8th edition, vol. 1, § 58, it is thus said: “ By the common law if it be doubtful whether a criminal who, at his trial, in appearance is a lunatic, be such in truth or not, the issue shall be tried by the jury who are charged to try the indictment; or, being a collateral issue, the fact may be pleaded and replied to ore tenus and a venire awarded, returnable instanter, in the nature of an inquest of office. If it be found by the jury that the party only feigns himself a lunatic and he still refuse to answer, he was, before the act of Geo. IV., c. 28, § 2, dealt with as one who stood mute and as if he had confessed the indictment. The principal point to be considered by the jury would be whether the defendant has a sufficient intellect to comprehend the course of the proceedings on the trial so as to be able to make a proper defence. Whether the prisoner was sane or insane at the time the act was committed, is a question [238]*238of fact triable by the jury and depending upon the previous and contemporaneous acts of the party.” That is to say, the defence of insanity at the time the crime was committed must be tried by the jury charged with the' trial of the indictment, and if the question of sanity at the time of the trial is raised, it may be tried either by a special jury impaneled for that purpose or by the jury who are to try the indictment. This is the undoubted meaning of the text and it expresses the rule as it was at the common law, and also as it was changed by the act of Geo. IV.
In the case of Freeman v. The People, 4 Den. 9, cited for the plaintiff in error, the question arose upon a section of the Code which provides, “No insane person can be tried, sentenced to any punishment, or punished for any crime while he continues in that state.” The court said, “ The statute is explicit that no insane person can be tried, but it does not state in what manner the fact of insanity shall be ascertained. That is left as at common law and, although in the discretion of the court, other modes than that of trial by jury may be resorted to, still in important cases that is regarded as the most discreet and proper course to be adopted.” In the case of Jones v. The State, 13 Ala. 157, the court said: “ But in the case before us the judge did not see proper to test the prisoner’s sanity by a preliminary inquiry to ascertain whether he was capable of pleading to the indictment or not; he did plead and a trial and conviction was the result, 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 below.”
In State v. Arnold, 12 Ia. 483, the court said: “The court is to inquire into the prisoner’s mental condition at the time he appears for arraignment. In determining whether a reasonable doubt exists as to his sanity before impaneling a jury, the judge is not confined alone to the case made by the counsel .....but may in his discretion investigate the whole matter and determine whether the necessity exists for the inquiry. But the inquiry should not be allowed, if from all the circumstances he has no reason to doubt his sanity.” The foregoing was said in construing a statute of the state of Iowa, which [239]*239provided that there should be no trial if there was a doubt whether or not the prisoner be insane. In Hawkins’ Pleas of the Crown, p. 3, the writer says: “And by the common law if it be doubtful whether a criminal who at his trial is in appearance a lunatic, be such in truth or not, it shall be tried by an inquest of office, to be returned by the sheriff of the county wherein the court sits.”
The foregoing are the only text books and reports of cases which we have met with, in which the subject we are considering has been discussed or decided, and they all concur substantially in the proposition that it is only in cases of doubt as to the sanity of the prisoner upon arraignment, that a preliminary inquiry is to be ordered. This being so, it is manifest that neither the assertion of the prisoner or his counsel, nor the production of affidavits, nor the entering of a plea of present insanity upon the record, can of themselves alone suffice to produce the state of doubt which is a necessary prerequisite to the ordering of the inquiry. They are all necessarily addressed to the court, as there is no other tribunal to entertain them; and it is the court, after all, which must be affected by the various considerations which are supposed to, or in fact do, produce the doubt which must precede any order for an inquiry.
It follows of course, that other considerations than those stated may affect the judicial mind and induce the existence of a doubt.
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Opinion,
Mr. Justice Green:
The question principally discussed in this case is a novel one. It does not appear to have ever been determined or even presented in this court before. Briefly stated it is this: whether a defendant in a criminal ease who alleges his insanity at the time of arraignment is entitled, as a matter of legal right, to have a separate, independent and preliminary trial of that question by a jury specially impaneled for the purpose.
It is certainly the fact that the 66th and 67th sections of our criminal code of 1860 are substantially, almost literally, taken from the English statute of 39 and 40 Geo. III., c. 94, and that under that statute the English criminal courts do, not infrequently, award preliminary issues to determine the sanity of prisoners by the verdict of a jury. The same is true of the practice in several of our sister states. We have examined with much care the various authorities cited in the very able and exhaustive argument of the learned counsel for the plaintiff in error, and we find that in all of them the inquest was directed, generally by the court of its own motion, sometimes at the instance of the attorney general, but always in cases where the appearance and actions of the prisoner were such as to manifestly indicate a condition of insanity, either real or [237]*237simulated. In point of fact the purpose of the inquiry was to inform the conscience of the court as to the prisoner’s real condition at the time of the trial, but before the trial proceeded. There was an obvious propriety in directing an inquiry by the verdict of a jury in all such cases, because the fact itself required determination before any further proceedings were had, if there was probable ground for belief that a condition of insanity existed. If upon an examination of the prisoner there was no apparent reason to suppose him insane, but on the contrary he seemed quite capable of pleading to the indictment, there was no necessity for a preliminary trial; because every right to set up insanity, either when the offence is committed, or at the time of the trial, still remained, and could be thoroughly tried by the jury who were to try the indictment. The existence of the doubt as to the prisoner’s present insanity, is a matter which by the very necessity of the case could only be determined by the court itself. Up to the time of pleading there is no other tribunal which has the prisoner in charge, and there is no other which can say whether there is a doubt upon that subject. It is one of the functions which must be intrusted to the court, and it is not to be presumed that it will in any case be abused. If it should be, there is still the remedy available in all cases where abuse of discretion has taken place.
In the cases in which this subject has received consideration, the doctrine has been expressed in accordance with these views. In Whart. Crim. Law, 8th edition, vol. 1, § 58, it is thus said: “ By the common law if it be doubtful whether a criminal who, at his trial, in appearance is a lunatic, be such in truth or not, the issue shall be tried by the jury who are charged to try the indictment; or, being a collateral issue, the fact may be pleaded and replied to ore tenus and a venire awarded, returnable instanter, in the nature of an inquest of office. If it be found by the jury that the party only feigns himself a lunatic and he still refuse to answer, he was, before the act of Geo. IV., c. 28, § 2, dealt with as one who stood mute and as if he had confessed the indictment. The principal point to be considered by the jury would be whether the defendant has a sufficient intellect to comprehend the course of the proceedings on the trial so as to be able to make a proper defence. Whether the prisoner was sane or insane at the time the act was committed, is a question [238]*238of fact triable by the jury and depending upon the previous and contemporaneous acts of the party.” That is to say, the defence of insanity at the time the crime was committed must be tried by the jury charged with the' trial of the indictment, and if the question of sanity at the time of the trial is raised, it may be tried either by a special jury impaneled for that purpose or by the jury who are to try the indictment. This is the undoubted meaning of the text and it expresses the rule as it was at the common law, and also as it was changed by the act of Geo. IV.
In the case of Freeman v. The People, 4 Den. 9, cited for the plaintiff in error, the question arose upon a section of the Code which provides, “No insane person can be tried, sentenced to any punishment, or punished for any crime while he continues in that state.” The court said, “ The statute is explicit that no insane person can be tried, but it does not state in what manner the fact of insanity shall be ascertained. That is left as at common law and, although in the discretion of the court, other modes than that of trial by jury may be resorted to, still in important cases that is regarded as the most discreet and proper course to be adopted.” In the case of Jones v. The State, 13 Ala. 157, the court said: “ But in the case before us the judge did not see proper to test the prisoner’s sanity by a preliminary inquiry to ascertain whether he was capable of pleading to the indictment or not; he did plead and a trial and conviction was the result, 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 below.”
In State v. Arnold, 12 Ia. 483, the court said: “The court is to inquire into the prisoner’s mental condition at the time he appears for arraignment. In determining whether a reasonable doubt exists as to his sanity before impaneling a jury, the judge is not confined alone to the case made by the counsel .....but may in his discretion investigate the whole matter and determine whether the necessity exists for the inquiry. But the inquiry should not be allowed, if from all the circumstances he has no reason to doubt his sanity.” The foregoing was said in construing a statute of the state of Iowa, which [239]*239provided that there should be no trial if there was a doubt whether or not the prisoner be insane. In Hawkins’ Pleas of the Crown, p. 3, the writer says: “And by the common law if it be doubtful whether a criminal who at his trial is in appearance a lunatic, be such in truth or not, it shall be tried by an inquest of office, to be returned by the sheriff of the county wherein the court sits.”
The foregoing are the only text books and reports of cases which we have met with, in which the subject we are considering has been discussed or decided, and they all concur substantially in the proposition that it is only in cases of doubt as to the sanity of the prisoner upon arraignment, that a preliminary inquiry is to be ordered. This being so, it is manifest that neither the assertion of the prisoner or his counsel, nor the production of affidavits, nor the entering of a plea of present insanity upon the record, can of themselves alone suffice to produce the state of doubt which is a necessary prerequisite to the ordering of the inquiry. They are all necessarily addressed to the court, as there is no other tribunal to entertain them; and it is the court, after all, which must be affected by the various considerations which are supposed to, or in fact do, produce the doubt which must precede any order for an inquiry.
It follows of course, that other considerations than those stated may affect the judicial mind and induce the existence of a doubt. A personal inspection of the prisoner, an examination of him whether public or private, inquiry from an attending physician or from those around the prisoner who have means of knowledge, all of these, and, doubtless, other facts or testimony, may contribute to the creation of doubt in the mind of the judge and for that reason all may be resorted to ; but, if after all have transpired, the judge has no doubt of the prisoner’s sanity, he is neither bound, nor would he be justified in ordering an inquest. It is the judicial conscience alone which can determine this question, and it is that conscience only which must be informed so that it may act intelligently.
These views dispose of the question.
The absolute right of the prisoner to have the question of his sanity tried by a jury is not at all affected. Nor was it in any manner denied to the prisoner in this case. The question [240]*240of his sanity both at the commission of the offence and at the time of the trial was fairly and fully submitted to the jury who tried the indictment. After hearing all the testimony, they found against him, and a careful reading of the testimony fails to convince us that the finding was wrong.
There is nothing in the 66th and 67th sections of our criminal code of 1860 which requires a different conclusion from the one we have reached. The 66th section directs, that if upon the trial the prisoner shall be acquitted by the jury upon the ground that he was insane at the time of the commission of the offence, they shall so declare specially, and thereupon the court shall order him to be kept in strict custody so long as he shall continue of unsound mind. The 67th section merely provides that if upon arraignment he shall be found to be a lunatic by a jury lawfully impaneled for the purpose, the same proceedings shall be had. Certainly this ought to be so, for if the fact of insanity be found by a jury whether before the trial or on the trial, the same power to hold him in custody during the continuance of the insanity ought to be exercised. The court cannot find the prisoner to be insane, for that is matter of fact to be found by a jury. But if the court has, upon arraignment, reason to think him insane, or even has doubt upon that subject, they may order an inquest for the purpose of trying that question; and then, if the inquest should find him insane, the order for custody may be made, and this is the whole meaning of the act. There is nothing in its letter or spirit which makes it obligatory upon the court to order a preliminary inquest.
In view of the evidence offered and admitted on the trial in support of the allegation of insanity, we think the learned court below could with entire propriety have heard the testimony offered when the application for a preliminary inquiry was made. And if, after hearing it, the judge had entertained doubt as to the present sanity of the prisoner, it would have been his duty to award an inquest for the trial of that fact before any further proceedings were had. This was not done, but the jury has now found that the prisoner was not insane, either at the time of the trial or at the commission of the of-fence. The verdict was reached after a patient hearing of all the testimony relied upon by the prisoner, and after a fair and [241]*241perfectly impartial charge by the judge who said nothing tending to bias, or even to lead the mind of the jury against the prisoner. After the verdict, upon a motion for a new trial, the learned judge expressed his satisfaction with the result and refused the motion. Both his own opinion, after hearing all the testimony, and the verdict of the jury concur in the conclusion that the prisoner was not insane either when-the of-fence was committed or at the time of the trial. In consideration of this state of the record, we do not see how we could with any propriety say that the learned judge abused his discretion in refusing the preliminary inquest. His action has been justified both by the verdict and his own freedom from doubt after hearing all the testimony. It would be indecorous and without warrant for us to say, now, that the judgment should be reversed in order that a preliminary inquest should still be had before the indictment can be again tried. Whether the prisoner was insane when he was arraigned before, is no longer a practical question and could not be tried if-a reversal was granted; and it would be impossible for us now to reverse in order merely that the prisoner may be again arraigned, may plead his insanity at such arraignment and have a special inquest to try that plea. He has already been tried upon that issue and it has been found against him. We would be compelled to set aside this finding as unwarranted by the testimony, in order to give the prisoner any practical relief upon his own theory; but upon our views of the testimony, we have neither the right nor the inclination to take such a step. These views dispose of the first nineteen and the 30th, 32d and 33d assignments of error.
The 20th assignment is without merit. What happened at the previous visit of the prisoner to Martin’s store was no part of the res gestee occurring at the shooting, and there was nothing in the examination in chief of Mrs. Martin which would make it a subject of cross-examination.
The language of the court covered by the 31st assignment is fully sustained by the testimony of Mrs. Martin who testified that her husband said to the prisoner, “ Oh! you can’t frighten me that way. The pistol was then held to him. Webber fired then, in as quick succession as he could fire.”
The rejected question covered by the 21st assignment was [242]*242clearly irrelevant. It was an inquiry as to the amount of wages received by the prisoner while employed by Mueller & Co., from 1878 to 1885.
The evidence offered and rejected under the remaining assignments related to the earlier history of the prisoner, and was directed mainly to the inquiry whether he had been of a kind and affectionate disposition'. A time was stated, about 1885, when a change was noticed in his temper and in his actions. All the witnesses were allowed the fullest latitude in describing this change, and in doing so his former disposition was described. His mother testified that “he was always good to us and sent us several times money in Germany.” His brother testified, “He was always a good friend to me and we never fought together.” His wife testified, “His treatment was right good up to 1885,” and then described the change which took place in him in that year and continued afterwards. She also said, “His manner was very different than before 1885. He was always very affectionate. He always thought no one was like his family, particularly his little girl.”
Some of the offers of testimony were rejected and not fully supplied by testimony afterwards; as, for instance, that he was the principal means of support of his parents from 1873 to 1881. We cannot see the relevancy of this offer, nor how its exclusion harmed the prisoner, when it was subsequently proved that he sent money to his parents in Germany several times, and that when they came to America they lived with him. The offer to show that the prisoner’s father had been a merchant in Germany and failed, was certainly irrelevant, and so also the offer to prove that the prisoner had been the means of his brother Paul obtaining employment in 1881. Everything else covered by these assignments was in fact given in evidence, as was also everything that was offered as to his mental condition from the time the change was noticed in 1885 until the offence was committed.
We do not see any errors in this record which would warrant a reversal of the judgment.
The judgment of the Court of Oyer and Terminer of Philadelphia county is affirmed and it is ordered that the record be remitted to said court for the purpose of carrying the sentence into execution.