I specially concur in the conclusion, reached by a majority of this court, that the statute here under review is in violation of section 14 of the state Constitution, 1890.
I also concur in the conclusions reached by Judge ETHRIDGE in his separate opinion, except that part of the opinion which invokes section 32 of the state constitution. I am firmly of the opinion that section 32 should not be construed to protect the rights of any citizen unless and until the subject-matter under review is not enumerated within the other sections of the constitution as written. It cannot be that section 32 is violated if and when it is ascertained that section 14 strikes down the given statute.
My fixed conviction is that the statute here considered by this court violates section 28. I am of opinion further that the trial court correctly interpreted the statute as shown by his action when he consented to the verdict returned in this case. In other words, if the statute could be upheld it means that an insane man, as heretofore defined by this court, could not only be convicted of murder, but that the trial court would be authorized to put him on trial while he was so insane.
Entertaining these views, I am content to forego the temptation of elaborating my views on this important question.
I am directed by Judge COOK to say that he concurs in the views herein expressed. *Page 155