Burnard Whitten was convicted of murder in the first degree for the homicide of his wife and capital punishment was adjudged. A writ of error was taken.
The accused was shown to be under the age of twenty-one years. The provisions of Chapter 6221, Acts of 1911, were not complied with as to giving notice to parents or guardians of minors who are charged with crime. Without deciding whether the failure to give thé notice to parents or guardians, prior to the trial, as required by the' statute, was rendered immaterial by Chapter 7364, Acts', of 1917, *182removing the disabilities of male minors who have been married, or whether such failure to notify the parent or guardian constituted harmless error under Chapter 6223, Acts of 1911, and without determining whether the admission of evidence as to a confession of the accused was erroneous or whether such error, if any, was rendered immaterial by the defendant’s own testimony, the court is of the opinion that upon a consideration of the entire record, and in view of the extreme penalty imposed, justice requires a new trial. When the defendant took the stand to testify, he was asked: “Q. You know what you are charged with here, don’t you? A. Yes, sir. Q. What is it ? A. Charged with murder. Q. All right, tell this jury here, these twelve men, all about this affair. Tell them in your own language. ’ ’ The defendant’s testimony indicates that he is perhaps not of normal mentality, which makes it important that he should have the assistance of his parent or guardian, if he has one, and the aid of careful counsel to conserve his defense to the extent at least of fully developing the mental responsibility of the accused and of showing mitigating circumstances, if any.
Eeversed for a new trial.
Browne, C. J., and Taylor, Whitfield and Ellis, J. J., concur. West, J., dissents.