dissenting. Although the defendant at the beginning of the trial sought to rely, in addition to the defense of insanity at the time of the commission of the act, on the further defense of justification, because, according to her contention, at the time of the commission of the act a common-law marriage existed between John Drewry and herself, and because the shooting was necessary to prevent an act of adultery from being committed between him and the prosecutrix in violation of their common-law marital relationship—it developed subsequently that, because there was no evidence, including the statement of the defendant, that any act of adultery was about to be committed, this defense became unavailable to her. It follows that the only defense she has is that of insanity at the time of the commission of the act, whether general or delusional in character. Therefore, her defense of insanity, being her only one, should have been treated with legal precision and reasonable exactitude. There was some evidence that would have authorized the jury to have found that the defendant was suffering from some form of insanity, whether. general or delusional, at the time she prócured the -pistol, got in the automobile, and proceeded to the home of the prosecutrix and fired the shots for which she was on trial, which affected her to the extent that she did not have sufficient mind and understanding to distinguish between right and wrong as to the consequences of her acts and conduct, or that the mind of the defendant was so affected by mental disease at the time that her will power *361was impaired, and that she was thus robbed of the power to. choose between right and wrong, or that the defendant committed the act in consequence of some delusion by which her will was overmastered. The trial judge recognized that these elements of law were authorized by the evidence because he gave these principles in charge.
Special ground 5 complains that the trial court erred in failing to declare a mistrial, because of his remark in the presence of the jury to the effect that he had never heard of temporary insanity. The proceedings leading up to this remark were as follows: Mrs. Heery, a witness for the defense, was on the stand, and to the question of counsel for the defendant on direct examination, that “You mean she was practically temporarily insane at that time—is that what you mean?” the solicitor-general remarked, “Now, Your Honor, I submit that there is no such thing as temporary insanity in- Georgia,” to which the court replied: “I have never heard of it. But I am not an expert. Is there any definition of law as to temporary insanity?”
At this point counsel for the defendant requested that the jury retire and, upon this being done, moved for a mistrial on the ground that the court, in expressing an opinion on this issue, had become a witness before the jury. The court then stated: “Mr. Cobb, I am going to instruct this jury that there is no such thing as temporary insanity under the laws of Georgia, and that they cannot consider any such as a defense.” Upon further colloquy, counsel for the defendant contended that insanity at the time of the commission of the act is the test laid down, and that such insanity might well be temporary. Upon the return of the jury the court then stated, “Before taking up the testimony, that remark about 'under the laws of Georgia temporary insanity was not recognized’—I again state to you that it is not recognized as a defense under our Georgia laws. I want it to be very carefully understood that it was not any attempt on the part of the court to express an opinion of the defendant’s mind. If you have any idea of that, simply erase it from your mind. The court wasn’t attempting to express any opinion of the condition of this defendant’s mind, but simply telling counsel as a defense there is no defense of temporary - insanity. Now, if any question of a defense of insanity or delusional in*362sanity comes up in this case, then I will properly charge you when the time comes to do that.”
Thereafter, the court charged the jury as complained of in special ground 7 as follows: The laws of Georgia do not recognize what is called temporary or emotional insanity. The insanity which the law recognizes as an excuse for crime must be such as dethrones reason and incapacitates an individual from distinguishing between right and wrong as to the consequence of his or her conduct, or where a person has sufficient reason to distinguish between right and wrong as to a particular act about to be committed, yet, in consequence of some delusion, his or her will is overmastered and there is no criminal intent, provided the act itself is connected with the peculiar delusion •under which the accused is laboring. Now, if you find from the testimony submitted on the trial of this case, by a preponderance of evidence, that the defendant, at the time the act was committed, in consequence of some delusion in connection with the act, her will was overmastered you should acquit the defendant; provided the delusion, if true, would justify the act.”
Again, when the jury after deliberating for some time returned to the courtroom and asked for an additional charge on the subject of delusional insanity, the court repeated the charge above set out.
The evidence is undisputed: that John Drewry had, for most of the time since the divorce between the defendant and himself, been visiting in the home of the defendant; that he had spent some nights there, and that he spent the previous Thanksgiving weekend there; that he was in the home of the defendant the evening of the shooting; that he took her and their son to dinner at some roadside restaurant that evening; that, upon returning to the home of the defendant, Drewry l§ft early because of the defendant’s illness; that on this evening he kissed the defendant both on arriving at her home and upon leaving it; that in walking away he waved to her; that, upon arriving at his apartment, he telephoned to thank her for a “lovely evening,” and told her he was going to bed; and that immediately thereafter he went to the home of the prosecutrix. According to the statement of •the defendant—after he left, she took some medicine and a bath; then, feeling better, called him to tell him she had improved; *363she was informed that her former husband had gone to a certain drug store; she knew that this drug store was closed and he knew it, they having passed it earlier in the evening; thereupon, overcome by the,certainty that his entire course of action with her. was false and deceitful, and that he had left her for the purpose of going to see the prosecutrix, she procured the pistol and the automobile and went to the latter’s home, where she in fact found her former husband sitting in the living room with the prosecutrix on a footstool at his feet. The evidence is also undisputed: that several years previous to this occasion the prosecutrix was employed as the secretary of Drewry, who was and is Dean of the School of Journalism at the University of Georgia; that the defendant became suspicious that improper conduct and relationship existed between them; that after great difficulty she succeeded in getting the prosecutrix removed from her husband’s office; that Dean Drewry thereafter on several occasions sought to bring about an 'agreement on the part of the defendant to allow him to- return the prosecutrix to his office as his secretary;' that these efforts were made by Drewry not only in discussions about the matter with his wife but with several other people; but that the defendant steadfastly refused to agree to the return of the prosecutrix to the office of her husband.
It is the contention of the defendant that the continued association of her husband with the prosecutrix, after she left his office as his secretary, resulted in the breaking up of her home and brought about their. divorce; but that; after the divorce became final, the attentions showered upon her by her former husband caused her to feel secure in her conviction that she had won him back; that ’phoning his apartment on the night of the shooting and finding that he had misrepresented his whereabouts caused the loss of that security; and that this brought about such a distinct shock to her that she became temporarily dethroned of her reason to the extent that either she could not distinguish between right and wrong or that she was shorn of her will power to choose between right and wrong in her actions; and that therefore she was suffering from insanity at the time, of the commission of the act.
In charging that Georgia does not recognize “temporary or *364emotional insanity,” the court was obviously confused by technical terminology, and meant to indicate that Georgia does not recognize the doctrine sometimes also referred to as “partial insanity,” or “irresistible impulse” (analogous to that heat of passion necessary in manslaughter cases) recognized in some jurisdictions. See 22 C. J. S., Criminal Law, §§ 60, 61; Boyle v. State, 229 Ala. 212 (154 So. 575); People v. Varecha, 353 Ill. 52 (186 N. E. 607); People v. Geary, 298 Ill. 236 (131 N. E. 652); Morgan v. State, 190 Ind. 411 (130 N. E. 528); State v. Green, 78 Utah 580 (6 Pac. 2d, 177). This line of decisions is not followed in Georgia. See Barker v. State, 188 Ga. 332 (3) (4 S. E. 2d, 31); Rozier v. State, 185 Ga. 317. The latter case contains the statement, “In this and most of the States, no cognizance is taken of what has been termed 'impulsive' or 'emotional' insanity, where a criminal act is done under some overwhelming and irresistible impulse.” It appears to be on the basis of this case that the judge worded .the charges and instructions as he did; and had he followed the context and said “impulsive or emotional insanity,” it would have been a correct charge. What he actually said, and re-emphasized at four different stages during the trial, was “temporary or emotional insanity” or just “temporary insanity”, which, to the jurors at least, was a very different thing. Temporary, as defined in Webster’s International Dictionary, means “lasting for a time only, existing or continuing for a limited time; not permanent; ephemeral; transitory.” Code § 26-303 requires only that the defendant prove insanity at the time the act was committed. It is not necessary that the insanity continue to the time of the trial. Murphy v. State, 70 Ga. App. 387 (1) (28 S. E. 2d, 198). Nor is it necessary that it have had any particular duration prior to or subsequently to the act. Therefore, in the usual and well-defined meaning of the word, the insanity which will prove a valid defense may or may not be temporary, but the fact that it is temporary does not lessen its value as a defense. It is true that, except in certain psychotic conditions, the “emotional or impulsive insanity” is usually temporary, but this is not to say. that all insanity which is temporary is of this nature. If that were true, there would be no need for the entire field of mental and psychiatric therapy, which we have seen work *365amazing results during and since the last war, in all types of shock cases resulting in mental derangement. As early as 1847, at a time not known for its understanding or care of mental abnormalities, Judge Nisbet, in Roberts v. State, 3 Ga. 310, 328, stated: “Whether a man is sane or not, whether partially or totally deranged, and if only in part deranged, where accountability to the laws shall begin, and where end, are questions of great and embarrassing subtlety. The laws of the sane mind are but little understood; much less are the laws, if indeed such phraseology is predicable of it, of the unsound mind understood. We can judge of the one by external developments and by our own consciousness; of the other, only by external indicia.”
By his charge the judge planted in the jury’s mind the external indicia by which they were to determine the issue of insanity—that is, that it could not be temporary in character. From this the jury could only conclude that, unless it was permanent, there was no insanity. This is not what our Code says, nor is it the meaning of the law. By ruling in effect that the insanity could not be temporary in character, the court stripped the defendant of her only defense, for the evidence demanded a finding by the jury that from whatever insanity she was suffering, if any, whether general or delusional, it was temporary.
While the law of Georgia does not define any particular insanity as “temporary,” and while the appellate courts of this State seem not to have ever referred to any insanity by this term, nevertheless, if a defendant at the time of the commission of an act, otherwise criminal, is suffering from a form of insanity that .meets the requirements of law as a defense, the fact that it is “temporary” in no way minimizes its value as such. The fact, therefore, that counsel for the defendant so referred to the alleged insanity of his client, and the fact that the witness for the defendant so characterized it, in no way rob it of its validity.
I do not think that the trial court erred in refusing to declare a mistrial, as complained of in ground 5 of the amended motion for a new trial; but, taking into consideration what transpired as set out in this amended motion, I think that the charge of the court on temporary insanity,' as set out in ground 7, con*366stitutes harmful error. Nor does the fact that the court otherwise properly and fully charged on the defense of insanity correct it, because in my opinion the jury was probably confused by the erroneous part in its effort to do the impossible and reconcile that part with the correct part of the court’s charge on this subject. I therefore think that the trial court erred in overruling the motion for a new trial.
Felton, J., concurs in this dissent.