ON REHEARING. [En Banc, January 29, 1926.] The facts in this case are fully set out in the opinion of the department of the court which first heard it. After the opinion was filed, a petition for rehearing was presented and granted and the case was reheard En Banc.
The controlling question, as we now view it, is whether the defendant, not having plead insanity at the time of the trial, but having expressly plead sanity at that time, can now have his then sanity determined.
Section 2174, Rem. Comp Stat., provides:
"When it is desired to interpose the defense of insanity or mental irresponsibility on behalf of one charged with a crime, the defendant, his counsel or other person authorized by law to appear and act for him, shall at the time of pleading to the information or indictment file a plea in writing in addition to the plea or pleas required or permitted by other laws than this, setting up (1) his insanity or mental irresponsibility at the time of the commission of the crime charged, and (2) whether the insanity or mental irresponsibility still exists, or (3) whether the defendant has become sane or mentally responsible between the time of the commission of the crime and the time of the trial. The plea may be interposed at any time thereafter, before the submission of the cause to the jury, if it be proven that the insanity or mental irresponsibility of the defendant at the time of the crime was not before known to any person authorized to interpose a plea."
It will be observed that by this statute, when it is desired to interpose the defense of insanity, the defendant, *Page 662 his counsel or other person authorized by law to appear and act for him, shall, at the time of pleading to the information or indictment, file a plea in writing, in addition to the plea or pleas required or permitted by other laws than this, setting up "(1) his insanity or mental irresponsibility at the time of the commission of the crime charged, and (2) whether the insanity or mental irresponsibility still exists . . ."
By the statute, the counsel for the defendant is expressly authorized to enter the plea. In the present case, the plea was in writing that the defendant was insane at the time of the commission of the offense, but that, at the time of the trial, was mentally responsible and sane. Some time subsequent to the time when the jury, by its verdict, had found the defendant guilty of the offense with which he was charged, which was, in effect, holding that he was sane at the time it was committed, he sought, by his application, to have the question of his sanity at the time of the trial and the rendition of the verdict inquired into, and that is the question now presented for review. It must be kept in mind that the plea was expressly made, under authority given by the statute, that the defendant was sane at the time of the trial. Having plead his sanity at the time of the trial and taken the verdict of the jury on his guilt, he thereby waived the right to subsequently have the question of his sanity inquired into at that time. This is distinctly held in the case of Statev. Wilson, 69 Wash. 235, 124 P. 1125. It was there said:
"Counsel relies upon the elementary principle that an insane person shall not be put to trial for his life or liberty, and now contends that, if he can show the defendant was insane at the time of the trial, his liberty, subject of course to incarceration for present insanity, can be obtained by order of the court. The case of State ex rel. Mackintosh v. SuperiorCourt, 45 Wash. 248, *Page 663 88 P. 207, is relied on, but that case can have no controlling force here, because the application for a commission was made before the trial, and for the further reason that, since that decision was rendered, the legislature has taken notice of the lack of any statute defining a procedure in such cases, and by express enactment has provided for the manner of trying the question of insanity at the time of the trial. Rem. Bal. Code, § 2174, provides that this may be determined by the jury under a special plea. Succeeding sections point the proper procedure in the event that the jury finds mental irresponsibility at such time. These statutes are ample to protect the rights of a defendant, and the fact that such plea was not interposed warrants us in holding that the question was waived. In our judgment, this holding does no violence to the rule that an insane person shall not be put to trial; for, as we read the statutes, although that fact were proven, it would not operate to discharge the defendant, but only work a continuance until such time as, in the judgment of the prosecuting officers, his reason became restored. We think the plain inference to be drawn from a reading of § 2174 is that such plea must be interposed before the case is submitted to the jury; and that, if it comes thereafter, it is too late."
What the procedure would be, where a defendant pleads insanity at the time of the commission of the offense and also at the time of the trial, and the jury finds him sane at the time of the commission of the offense, it is not necessary here to determine, for that question is not involved in this case because, as stated, there was no such plea. Had defendant, either before or during the trial, through his counsel or other person authorized to act for him, requested that the court appoint a commission to inquire into his then insanity, and the court had refused, a different question would be presented. Defendant was ably represented by *Page 664 counsel. He had a fair trial, and his legal rights have been fully protected.
It follows that the judgment must be affirmed.
TOLMAN, C.J., MITCHELL, FULLERTON, HOLCOMB, and MACKINTOSH, JJ., concur.