dissenting:
Being in accord with the majority of my brethren, except as to certain specifications of error which, in my humble opinion, imperatively demand a reversal of the judgment, I propose to address myself, as briefly as possible, to the general question involved in those specifications, viz.: Did the learned judge of the Oyer and Terminer err in either of his rulings relating to the application of prisoner’s counsel for a preliminary inquiry, such as is contemplated by the first clause of the 67th section of our criminal procedure act, to determine, “by a jury lawfully impaneled for the purpose,” whether the prisoner was, at the time of his arraignment a lunatic or not ?
If it were not for what I conceive to be manifest error in the rulings of the learned judge in that regard, especially his refusal to even hear any evidence in support of the application, I would be in favor of affirming the judgment; but, with these radical errors patent upon the face of the record, resulting as I believe, in an improper conviction of the prisoner who, according to the weight of the evidence, was insane when he was compelled to plead to the indictment, and probably in the same condition of mind when he committed the homicide, I am constrained to dissent and put on record my reasons for so doing.
I have no sympathy whatever with the pettifogging and groundless defences of insanity that are too often interposed to shield the guilty from merited punishment; but the case at bar is not one of that class, as the evidence which the learned counsel by their diligence, unaided by the prisoner, were able to adduce on the trial, will show. That evidence tends to prove that, before the marked change in his mental condition occurred and he became the victim of delusions, he was peaceable, industrious and thrifty; a kind and affectionate son, husband and father, exemplary in all the relations of life. But let the testimony-of a few witnesses speak for itself.
George P. Mueller: “ I knew the prisoner. Got acquainted with him in 1877. He was not then in my employ. I engaged him in 1878. He was recommended to me as an industrious man; engaged him as engineer and machinist. He was 'a good workman, the kind .of man I was looking for, and was steady in his work. In the fall of 1885, I noticed disturb*244anees. He complained of not feeling well; had to consult a physician and got medicine. In October, 1885, he asked to be let off for a few days for recreation and I let him off. Then I said, ‘Oscar, I let you off for a few days.’ On Monday morning he did not come, but came in the afternoon, and said nothing, but laughed and said he wanted to say something private to me, and I took him into my room, and he spoke about his wife being untrue to him, having men in the house, that they jumped the fence and he had seen them. I said,
■ Oscar, aint you mistaken ? ’ He said, no, I saw them and that proves it. I talked to him for an hour and tried to get the idea out of his head, but he said ‘ no.’ He went away and came the following day, and staid in my place till towards evening. I said to him, go and see the doctor. I noticed his expression and whole conversation were like that of a man who was suspicious. I told him ■ to go see Dr. Schrotz; see what he says, etc. I told him, ‘ Oscar, go round 6th street where I get my dinners and get a good supper.’.....I went home at 7 o’clock, took supper and all at once heard my name called......I saw it was Oscar Webber. I said, ‘Oscar, what’s the matter?’ He said, ‘Mr. Mueller, I had to do it. While I was at supper three men followed me, and when I ate supper they looked at me.’ He said he did not eat supper in the restaurant, as he did not want to be poisoned. He said, ‘ I left there and the men followed me, while I was going to Dr. Schrotz.’ He said he was afraid the men would catch him. He said he went over different streets to escape them, until he got to Sixth and Berks streets. I took him in. My wife and sister-in-law pitied him. His condition was like, I don’t know what. I said, ‘Oscar, sit down and eat some supper.’ My wife said to me, ‘go down and see Dr. Schrotz.’ Dr. Schrotz came up at 9 o’clock, called Webber into the parlor, and he talked to him. I don’t know what he said. I got a prescription made for him. Dr. Schrotz went away. We took Webber to bed, and thought all was right.' After midnight some one came down and knocked at our door. I got up, opened the door, and Oscar was there. I said, ‘why, Oscar, what do you want ? ’ He said, ‘ some one got in the window, and it was the men who followed me.’ I said to him, he was wrong, there was no one there I’m sure. I went down *245stairs, lit the gas, searched the whole house, and found no one. I said, ‘ Now, you’re satisfied.’ At four he came down again. He said, ‘ let me in your room; These men are after me, and I can’t rest.’ I told him no one was in the house, and made him go up again. At six o’clock he came down again, and said the same thing. He staid until breakfast, and went down town with me. I told him to follow the doctor’s advice. He came round the whole week and complained. I couldn’t persuade him to change his mind as to his wife. He didn’t work the whole week. The next week I didn’t know whether to engage him or not, on account of his acting. Still, I had pity on the man, and got a man to see if he tended to business right. Nothing occurred then until about December. One morning, while tending to machine he said, could you make me a partner. He had given me $1,500 or $1,600 to keep, and on that he wanted to be a partner. I told him I had a partner, and I wanted to consider; it was worth while to consider and I couldn’t give him an answer at once. He left on January 6, 1886. Saw him next when he came in now and then, and I returned him his $1,600. I next saw him in January, 1887, after his arrest, at Moyamensing prison. When I went there he would have nothing to do with me. At Moyamensing prison I went in and shook hands, and said, how goes it. He said, pretty well. I could get no answer to the different questions as to why he was arrested. I went again in February; he was the same way again. I asked him a great many questions about the occurrence, but he would not say anything. Took him oranges, and he refused them. He said, don’t want anything. He said he didn’t want to see his wife, or his mother; didn’t want to see anybody. Then I spoke to him about lawyers. I said, the court has appointed them. He said, well, I don’t need a lawyer. The district attorney has to take my part. I said, you are wrong. He can’t take your case. He said, it is all right. I went down again just before the case was fixed for trial last June, and he refused to see me. I went down again last Friday. I went up and talked to him for a half hour about his case, and the jury. He was as before, would not talk to me. He did not seem to understand. He said he’d tell all when he got on the stand. 1 could not make him understand about the trial. I knew *246him at home. I saw him there once in a while.....He was a good husband before the occurrence, and a faithful son, and good brother.”
Dr. Julius Schrotz: “I have practiced medicine 31 years. My office is 808 North Eighth street. That is the man referred to by Mr. Mueller (pointing to prisoner). I knew the prisoner. Never knew him before that night when I was called. I got there at 8 o’clock. Was in the parlor with Webber. He was very much excited, and said he feared persecution by men who followed him all the time. I tried to have him go home, but he wouldn’t do it. I gave a prescription for him ; told Mrs. Mueller he might be noisy at night. Two months afterward he came in again, and asked for a certificate of sound mind. I referred him to his family physician. At that time he was out of his mind, suffering from hallucinations. When I saw him he undoubtedly was not in his right mind.”
Dr. Eugene Lamparter: “ Have been practicing since 1866. I know the prisoner for 9 or 10 years. He used to come to me to consult me for himself and family.....I remember meeting the prisoner on 13th street during 1866, about August. He was disturbed and excited. I asked him where he was going. He said his brother was in his house with his wife; he had caught him. He told me if he found him again he would try and shoot him. I told him I did not believe him. He had but one brother at home. I tried to persuade him not to believe such a thing. He said he would have shot' him then, but his brother got out of the key-hole. He said his brother was a gifted boy and could get in or out of cracks.
R. F. S. Heath: “ I was a manufacturer of straw goods, and formerly in the firm of Mueller & Co. I knew the prisoner.' He came to us in 1878 and remained as long as I was a member of the firm, which was up to January, 1885. I always found him gentlemanly, and quiet, and industrious, and we never had any difficulty with him. He came to my store afterwards, in 1886; he talked strangely about a physician, and his own family; that they conspired to get him away, and he left with me three or four kinds of medicine. He said they were poison, and I destroyed them. He had a vacant look and talked strangely. He frightened my daughter. I say he *247was insane from October, 1885, till placed in prison last December. He mentioned tbe fact of his being pursued by strangers to till him, and that his family had conspired against him.”
Mrs. Parvin: “ Know the prisoner. Lived next to him for three years up to 1886. He lived in a three story brick house. For the three years that I saw him he was a quiet man, devoted to his family. Question: Did you notice any change in him ? Answer: All at once he became very noisy. He would come home making excitement all the time. This was in the latter part of 1885. He accused his wife of doing things I don’t think she had done. He came out of the house with a wild look, as if some one was following him. His wife came and told me what he said of her. One Sunday I sent my daughter up for his wife’s father, I thought he would kill her. He came up Thirteenth street on a street-car, and jumped in the parlor window, without trying to open the door. It was in the middle of the day.”
J. H. Lloyd, M. D.: “Live at 40th and Walnut streets; have been practicing for ten years; am connected with the nervous department of the University Hospital.....I have heard testimony in this case. I make up my opinion from the observation and history of the case. I have examined prisoner five times. Question: Assuming the facts to be true that were presented by defendant, what is your opinion of hi3 mental condition ? Answer: I believe him to be insane. I base my opinion, first, on his change of character and habits; second, the formation by him of delusions of persecutions; these delusions were that his food was being poisoned, that his wife was unfaithful, that his fellow workmen were false to him, the instance of his being followed by night. Those are some of the main persecutions and delusions testified to which I now recall. I remember also he suspected the use of chloroform, and he believed that his wife could transform men into lower animals. I remember also the delusion as to putting of poison in his food. I cannot give the exact date of the four examinations of prisoner I have made. I have not my note books here. The last time I examined him was on Wednesday. In examining him I can state in general terms that I received evasive answers. There were few direct answers to' *248my questions. He seemed suspicious that I was not his friend; all his remarks were in a rambling and indirect way, saying he would see about it, that it was all right, etc. He said if I i came from his lawyer I ought to understand all about it. On last Wednesday, Dr. Mills, Dr. Butcher, the prison physician, Mr. Carr, one of his counsel, and a gentleman whom I do not know, were present. Mr. Carr told him about the day for the trial being fixed, and asked him to tell us something about the affair, that we might get his defence ready. He only said that it was all right. His counsel also showed him a printed list of names, and said that they would be the jury who would try him, and wanted to know if Webber knew any of them. He did not appear to understand, he would not say anything about the jury list. He gave a deaf ear to anything that was said and appeared not to realize the gravity of his position. I have come to the conclusion that he is insane, both from the examination and the testimony.”
Dr. Charles K. Mills: “ Office 1909 Chestnut street; have been practicing since .1869; practice in Episcopal Hospital, University Hospital and the Norristown Hospital for Insane; have given special attention to nervous and mental diseases; have a very large experience with nervous diseases and the insaiie; see such cases every day in hospitals and private cases. During the testimony here I have been present a large part of the time. Once I went out of court to send a telegram, and one morning I was a few minutes late in getting to court. I have made examinations of the prisoner in Moyamensing prison four or five times. I examined him in January, February, May and June, and a few days ago, last week on Wednesday.....It was impossible to get a direct, explicit reply to any question; he would make but few direct answers. His manner and tone were very peculiar.....His answers were not sensible, he would occasionálly utter a sentiment that would be sensible.....He impressed me as a man who was suspicious, restless, and whose mind was unhinged. My opinion is that this man is a very insane man, from the evidence and as a result of these examinations. In forming my opinion upon the evidence, I considered his suspicions of chloroform being given him, and of unfaithfulness of his wife. The scene about the revolver, that he broke a hole in door by which latch *249was lifted, the change in his manner of acting towards his relatives, what he said happened in the restaurant, and of powder being put in his food to poison him, that the same parties followed him to Mr. Mueller’s house. Then, again, the change in his habits and disposition. They were different from what they ought to have been if he were sane. Then, as to having given up work; he had saved sixteen hundred dollars and then ceased to work; he gave up his habit of saving. He had been affectionate to his wife and then had ceased, and had begun to suspect her without cause. Also the change of habit in treating his parents. They testified he had given money to his parents in the old country; his brother testified to his kindness, and that he believed in him, and then had ceased to believe. I have carefully thought over it, and I have made up my mind and believe this man to be insane.”
On cross-examination Dr. Mills said: “In the facts I have heard testified to of the shooting of Mr. Martin, it might have been either the result of Webber’s delusion or of revenge. It might be either. If his mind was obscured by its general delusional condition, relative to suspicion, I do not think it would be revenge, but would be the act of an insane man. The explanation I have heard here of putting Webber out of the store would not clear it of the delusion.....In' my judgment this man was not simulating. I believé this man is a case of delusional insanity. He suffers from delusions of suspicions, persecutions, etc. I believe there is a general delusional condition. He believes he was poisoned, was chloroformed and followed; that his wife was unfaithful, etc.”
It was conclusively shown that the suspicions, etc., of the prisoner, referred to by the witnesses, were wholly groundless.
This is the general character of the evidence with which prisoner’s counsel were prepared to support their application for a preliminary inquiry as to his insanity at the time he was arraigned, and the kind of evidence the learned judge resolutely refused even to hear, either in the form of affidavits or by examination of the witnesses in open court. If that was an exercise of sound judicial discretion, it would be difficult indeed to say what, in a legal sense, constitutes abuse of discretion.
The 66th section of the act referred to, provides for cases in *250which the jury by their verdict finds specially that the prisoner was insane when he committed the crime charged in the indictment and is acquitted by them on the ground of such insanity, and empowers the court to order him to be kept in close custody so long as he shall continue to be of unsound mind.
The first clause of the next section, under which the application in question was made, provides: “ The same proceedings may be had, if any person indicted for an offence shall upon arraignment be found to be a lunatic by a jury lawfully impaneled for the purpose.” The last clause of the same section provides for the case of a prisoner who has gone to trial without such preliminary inquiry as is contemplated by the first clause. “ If the jury find by their verdict that he is then insane, the court shall direct such finding to be recorded and order him to be kept in close custody,” etc.
These provisions, substantially copied from the English act, 39 and 40 Geo. III., c. 94, were first enacted by our legislature in 1836 and afterwards embodied in our criminal code of 1860. It is conceded the. English courts frequently award preliminary issues to determine, by the verdict of a jury, the sanity of prisoners when arraigned on indictment, and the same practice prevails in several of our sister states whose legislation on the subject is similar to our own.
Our learned brother, who speaks for the majority, after reviewing the authorities on the subject, comes to the conclusion “ that they all concur in the proposition that it is only in cases of doubt as to the sanity of the prisoner upon arraignment, that a preliminary inquiry is to be ordered. This being so, it is manifest that neither the assertion of the prisoner or his counsel, nor the production of affidavits, nor the entering of a plea of present insanity upon the record, can of themselves alone suffice to produce the state of doubt which is the necessary prerequisite to the ordering of the inquiry. They are all necessarily addressed to the court, as there is no other tribunal to entertain them; and it is the court, after all, that must be affected by the various considerations which are supposed to, or in fact do, produce the doubt which must precede any order for an inquiry.....It is the judicial conscience alone which can determine this question and it is that conscience only ■which must be informed so that it may act intelligently.” He *251therefore concludes that it rests in the sound discretion of the trial judge whether in any given case a preliminary issue shall he awarded to determine the then sanity of the prisoner.
This construction of the act is quite as favorable as the commonwealth can possibly ask, and I agree with the majority in saying it is the proper construction; but, in the practical application of the law, as thus construed, to the undisputed and indisputable facts of this case, we reach entirely opposite conclusions as to the legality of the court’s action in this case.
Granting that it is discretionary with the trial judge to award or refuse the preliminary inquiry contemplated by the first clause of the 67th section, above quoted, it must of course be understood to mean a sound legal discretion, not an arbitrary or unreasonable exercise of judicial power; nor can it be the preconceived opinion, however strong, of a judge who refuses to hear evidence tending to show that the application is meritorious and not frivolous. If it is the “ judicial conscience alone ” that must be enlightened so that it can act intelligently, it would seem to follow that affidavits and oral testimony of witnesses in open court, calculated to shed light on the subject, should not be waived aside as unworthy even of being heard. That is substantially what was done in this case, as abundantly appears by the bill of exceptions.
The prisoner being without counsel, the court, sometime • before the case was cálled for trial, appointed two reputable gentlemen of the bar to represent him, and they are entitled to great credit for the marked ability and energy with which they have performed their duty. Having obtained such information as was within their reach, as to the mental condition of the prisoner, etc., when the case was called' for trial on October 17, 1887, they moved a stay of proceedings for the purpose of having the question of the prisoner’s insanity determined in the Common Pleas. That being denied, they then asked leave to file a special plea, setting forth his then insanity in order that an issue might be formed to determine that question. That also being refused, they then signed and presented to the court a suggestion setting forth that the prisoner then in court “ is a lunatic of non-sane mind, and has not sufficient intelligence to comprehend the course of proceedings on the trial so as to make a proper defence, nor conduct it with discretion, and *252before the court should compel him to plead to the bill of indictment a jury be lawfully impaneled to find whether such facts be true or not, so that the court may take action in the case, as in the act of March 31, 1860, is provided.” In connection therewith they offered to support their motion and “inform the discretion of the court, by producing affidavits or ■ witnesses viva voce that the prisoner is now insane and therefore incompetent to plead or conduct his defence.” That was also refused, the learned judge saying: “ I consider that it is a matter in my discretion.” Thereupon, the prisoner was arraigned and in answer to the question “whether he was guilty or not guilty*” said: “ I do not think it necessary for me to do so; I do not consider myself guilty of anything at all.” The learned judge pronounced his answer a plea of not guilty and by his' direction it was so entered of record. Counsel for the prisoner then renewed their suggestion that he “ is insane upon arraignment,” moved that that issue be first tried, and again offered “to accompany their motion with affidavits or witnesses viva voce that the prisoner is incompetent to plead or conduct his defence.” The motion being denied, a jury was impaneled and the trial proceeded. The foregoing and other rulings of the court were duly excepted to and form the first nineteen specifications of error.
That the application for a preliminary inquiry as to the insanity of the prisoner was prompted by a sense of duty to the unfortunate prisoner and made in perfect good faith, cannot be doubted. The evidence which the learned counsel were able to adduce on the trial is convincing proof that they were prepared to sustain their application by affidavits or witnesses viva voce; and if the court had not persistently turned a deaf ear to both, facts would have been presented, which, in the exercise of a sound judicial discretion, would not only have justified but demanded a preliminary inquiry as to the then mental condition of the prisoner.
The learned judge having refused to hear the evidence offered by prisoner’s counsel, in what way, it may be asked, was the “ judicial conscience ” enlightened, and upon what did he base his judgment in refusing the application ? The only answer that can be given is what he himself says in his opinion overruling motion in arrest of judgment and for new trial, viz.: *253“ the prisoner was about to be arraigned when a suggestion was filed by counsel that the prisoner was insane at the time. An elaborate and learned argument was made by the counsel of the prisoner in his hearing. Nearly two hours were occupied in arguing and considering the motion, during which time I had the opportunity of observing the appearance and conduct of the prisoner, and the attention he gave to the proceedings. I had also the benefit of the information of the physician of the prison and others to assist me in coming to that sound judgment which it was my duty to exercise. Giving the matter the due consideration to which it was entitled, I came to the conclusion that the prisoner knew where he was, what he was here for, and what was being done.”
As to the information acquired by “ observing the appearance and conduct of the prisoner,” etc., it is perhaps all well enough so far as it goes, but it should not have been permitted to exclude the evidence of competent experts and others at hand. As to the information of the jail physician “ and others,” we are not informed how or when it was communicated. It does not appear, however, to have been in the shape of testimony in open court, and for aught we know it may have been mere hearsay. At best, neither of the sources of information referred to should ever be accepted as a substitute for competent evidence adduced in open court in the regular qnd orderly way. It would be a most dangerous precedent to sanction such a course of proceeding in any case.
It has been suggested that the jurors, impaneled to determine the guilt or innocence of the prisoner, were also authorized to pass upon the question of his insanity at the time of trial; and, inasmuch as they did not find, as part of their verdict, that he was then a lunatic, he has no right to complain that the preliminary inquiry was refused in the manner it was. That is a non sequitur. If his counsel had a right, as they undoubtedly had, to make the application in question, it was the plain duty of the court to hear the testimony they had to offer in support of it. If that had been done, it can scarcely be doubted the learned judge, in view of the evidence, would have been constrained to grant the request, and thus the prisoner would have had the benefit of the single inquiry as to whether he was then insane, and therefore incompetent to plead, *254exercise bis right of challenge and otherwise assist in conducting his defence.
I am clearly of opinion that the judgment should be reversed for manifest abuse of judicial discretion in not granting the application referred to, and especially in refusing to hear any competent evidence in support of it.*
On May 11, 1888, in Webber v. Commonwealth, writ of error to the Supreme Court of the United States allowed: per Gordon, C. J., May 30, 1888, motion of Mr. Graham, District Attorney, to revoke the order allowing said writ of error, refused: per Gordon, C. J.