It is certain that, in ordering the issuance of a writ of mandamus absolute, requiring the judge below to certify the bill of exceptions, this court did not pass upon, or intend to pass upon, the questions therein raised. It was simply decided that the bill of exceptions should come to this court duly verified, in order that the assignments of error might be taken up and dealt with in the regular way. See Sears v. Candler, reported supra. "This being so, the case was, when it did reach here, open for con*388sideration and determination upon its merits; and being unable to concur in tbe correctness of the conclusions announced by the majority, I will, as briefly as I can, state my reasons for dissenting.
1. It is a fundamental principle of pleading and practice that he who seeks to set in motion the powers of any court of record for the purpose of obtaining relief of any lend must present a suitable motion or a proper petition, or else proceed as some particular statute may provide. The act of 1897 (Acts of 1897, p. 41), amending section 1047 of the Penal Code, gives a remedy in the cases-for which it provides. It does not in terms declare that there must he a petition, but this does not, I think, afford any ground whatever for holding that this essential thing may be dispensed with. The legislative grant of authority to administer the specified relief implies, necessarily, that the party seeking it must do so in the right way; and as no other way is expressly pointed out, the only proper way is by petition to the court. It could not, I am sure, have been intended that the “practicing physician” whose oath is to be the foundation of the proceeding is to be regarded as a party thereto, or that the mere making of the oath would place him in the attitude of appearing as the next friend of the convict. Certainly the statute does not so declare. Indeed, the physician figures mainly as a prehminary witness. The proceeding for which the law as amended provides is a case in the superior court. This court so held when it directed the judge to certify the bill of exceptions. It could not have held otherwise without deciding that an inquisition under this law was not a judicial proceeding. I fully acquiesce in all that was laid down in disposing of the application for mandamus, but it is to my mind inconceivable how a case like the present could lawfully originate in the superior court without a petition for its foundation. The holding of the majority, that a mere affidavit, sworn to by one who need not even profess to be interested, either as next friend of the convict or as a citizen, in the matter to which it relates, and who is not required to pray for anything and in point of fact does not, is sufficient to set in motion the powers of the superior court and be made the basis of a judicial investigation, is, I earnestly but with the utmost respect submit, an unwarranted innovation upon the established rules of pleading and practice. But I do not rest my dissent to the judgment rendered in this case solely upon the position just stated, for I think the *389very statute under consideration shows upon its face that a petition to the court is essential. It declares that the convict, if found sane, “shall be entitled to have no other trial as to his insanity upon any new application for a trial thereof.” The word “ application,” as here used, is synonymous with “petition.” In forbidding a “new” application, reference must have been intended to an original application, for there could not be a new one if there had not been an old one. A mere affidavit is no application at all, and there is not a hint in the law that the affidavit therein mentioned •should be so regarded. For the reasons above stated, and others which will suggest themselves, I am fully satisfied that a petition to the superior court is an indispensable prerequisite to the holding of such an inquisition as that under consideration.
2. It will not, of course, be denied that if a petition is necessary, it must, to be meritorious, make a case within the statute. Did the allegations of the petition with which we are now dealing meet this requirement ? I am convinced that in at least one vitally essential respect it entirely failed to do so. It was not presented to the judge until after the imposition of the death sentence, and did not allege that Baker, the convict, became insane after sentence. It merely stated that he “is an insane person, and the condition of his mind is such that the sentence of the court, to wit, that he should be hanged, ought not to be carried into effect.” The verb “is,” as used in the petition, plainly referred to the time when the petition was signed by the attorneys for Mrs. Sears. The physicians’ affidavits are to the same effect as the petition with regard to this matter, i. e., they relate only to the mental condition of Baker at the time they were made, which was after the sentence, and do not state that he became insane after he was sentenced. The original section of the code dealt exclusively with convicts who became insane after having been sentenced to the punishment of death. The section as amended deals with this same class and no other. It begins: “ If, after any convict shall have been sentenced to the punishment of death, he shall become insane, upon the oath of a practicing physician the question of the sanity of said convict shall be tried by the ■superior court of the county in which he has been sentenced.” When, in preparing the opinion of this court in Carr’s case, 98 Ga. 89, I ventured to suggest a need of legislation with respect to inquisitions of this character, I used the following language: “If, in the *390wisdom of the General Assembly, it is deemed advisable that there should be a judicial investigation as to the mental condition of one who has been legally convicted and sentenced to death, and who-is alleged to have subsequently 'become insane, proper provision should be made for holding and conducting such an investigation under legal rules and with appropriate procedure.” See pp. 91-92.. The words, “ and who is alleged to have subsequently become insane,” were used deliberately and advisedly. If the General Assembly, as is probable, acted upon the suggestion made in that case,, it is reasonable to presume that it had in mind the idea embraced in the language last quoted, and it is undoubtedly true that nothing in the act of 1897 runs counter thereto. On the contrary, the entire-act seems to have been based upon that very idea, and it is in every particular consistent therewith.
A verdict of guilty and sentence of death, unless set aside, conclude the convict finally upon two propositions, i. e., (1) that he was sane when the act was committed, and (2) that he was sane at-the trial. This is so whether the defense of insanity was made at-the trial or not; and irrespective of whether insanity was set up in a ground of a motion for a new trial based on newly discovered evidence. From these premises the majority conclude that an affidavit of a physician (which they treat as the equivalent of a petition), made after sentence, that the convict "is now” insane, necessarily means that he became so after the sentence was imposed. To this I am unable to agree. If a petition dr affidavit averring-only a present state of insanity, with no reference to the time it originated, means what my brethren assert it does, why could not-the petitioner or the affiant say so in plain terms % It will be readily seen that the ruling of the majority forces one to read into the petition or affidavits now before us something that a conscientious next •friend or physician might not have been willing to allege or depose. Alleging or swearing that a man is to-day insane is not alleging- or swearing anything as to when he became so. The General Assembly must have known as well as we what was concluded by the verdict and sentence in a criminal case, and therefore must have legislated upon the theory that if at any time a convict under sentence of death should be found to be insane, it was to be absolutely assumed that he became so after sentence. Accordingly, it-did not, in passing the act of 1897, undertake to provide for any *391other contingency. In order, then, to bring a case within the act, the pleadings must affirmatively aver that the alleged insanity arose after sentence. An erroneous process of reasoning resulting in a like conclusion that a particular averment must necessarily mean so and so, when it plainly does not, will not dispense with what the law, as I understand it, requires shall be alleged fully and unequivocally.
I also think the petition should set forth the fact that the requisite affidavit by a practicing physician has been made. It would be good practice, perhaps indispensably necessary, to attach a copy of it as an exhibit.
In reply to the suggestion that it would be a hardship to require that the physician’s affidavit must aver positively that the insanity arose after sentence, for the reason that it might be difficult or impossible to find a physician who could so depose, the reply is that the law so demands, and the hardship, if it exists at all, is simply that of an unfortunate person who can not get the needed proof. Again, this suggestion is hardly consistent with the view that an affidavit, like either of those now before us meets the legal requirement on the idea that it really means the insanity did not arise till after sentence; for, as remarked above, if it does so mean and the affiant so understands it (which ought to be so if it is to be given that interpretation), he would willingly say in plain English the insanity did arise after sentence, and there would not be so much difficulty in finding a physician ready to make the requisite oath. Moreover, such a hardship will rarely arise where a sane convict actually becomes insane after sentence, and I verily believe it is the purpose of the law to cut off investigation into alleged insanity which has to be traced back to a date prior to the trial or the commission of the crime. The effect of the ruling of the majority is to practically grant a new trial upon issues that are conclusively and forever settled by the verdict. If an insane man is unfortunately convicted of a capital offense and sentenced to die, and in his particular case either of the legal presumptions, viz., that he was sane when he did the act, or sane when he was tried, is in fact contrary to the real truth of the matter, the remedy is with the Governor.