ON REHEARING.
McCulloch, J.Learned counsel for appellant, in a peti tion for rehearing, insist that the trial judge, in telling the jury, when the conditional verdict was brought into court, that the defendant could not be executed within thirty days, “and the supposition is that defendant’s attorneys will look after his interest in all proper ways,” committed error to the prejudice of the defendant, which was not removed by the subsequent withdrawal of the remarks. Counsel argue with much force that the jury, from this statement, notwithstanding the subsequent withdrawal of the statement, were led to believe that the question of the defendant’s mental capacity to commit the crime would be taken care of later by counsel, and that the verdict of conviction would not be conclusive of that question. They argue that the condition attached to the verdict offered had reference to the mental capacity of the defendant at the time the homicide was committed, and not to his present mental capacity, and that the jury, by attaching the condition, expressed a doubt as to his mental capacity when he committed the homicide.
We adhere to the conclusion, formerly rendered, that the remarks of the court, taken as a whole, were not calculated to prejudice the rights of the defendant before the jury. Still, after a careful examination of the record, we are impressed with the belief that the jury, in attaching the condition to this verdict, meant- to express a doubt as to the mental capacity of the defendant to commit the crime, and to require a further investigation of that question, and we do not feel sure that, when this unconditional verdict was subsequently returned, the jury had been made to understand that such verdict was conclusive of that question. There is considerable testimony tending to sustain the plea of insanity. The peculiar atrocity of the act, its inexcusability, the total absence of provocation or motive, the conduct of the accused for a few weeks before the homicide, the fact that his father was shown to be afflicted with the homicidal mania, and the opinions of several physicians and an expert of great experience in the treatment of diseases of the mind, all tend with much force to show that it was not the 'act of a sane man. We do not mean to say that the evidence is insufficient to sustain the verdict of the jury on this question of the defendant’s mental capacity to commit the crime; but the evidence in support of the plea is of such persuasive force, taken in connection with the condition attached to the verdict, implying a doubt of defendant’s sanity, that we are not content to allow the verdict and death sentence to stand. No harm can result from the delay of another trial, and we are constrained to believe that a due regard to justice demands it. The defendant made full confession of the homicide, and there is no probability of the evidence being lost on account of the delay of another trial. The case rests solely upon the question of the defendant’s sanity.
The petition for rehearing is granted, and the cause is reversed and remanded for a new trial.
Riddick, J.,- concurs.