The learned assistant district attorney, with commendable frankness, stated on the argument before us that the defendant was insane when he did the act for the commission of which he has been convicted of the crime of murder in the first degree and sentenced to the punishment of death. With like frankness he suggested that the governor should commute the sentence to a milder punishment, and the prevailing opinion states that the court itself would make such commutation if it had the power to do so. However probable it may be that the executive will act on these suggestions, this does not relieve us of full responsibility for pronouncing a judgment which may result in the infliction of the extreme penalty of the law upon a man admitted *Page 209 by the prosecution to be insane. Under the circumstances, fairly stated by Judge HAIGHT in his opinion, I think the facts should be further investigated before a final judgment is made, and, hence, I vote for reversal and a new trial.
CULLEN, Ch. J., WERNER, WILLARD BARTLETT and CHASE, JJ., concur with HAIGHT, J.; VANN, J., reads dissenting memorandum; GRAY, J., absent.
Judgment of conviction affirmed.