concurring specially.
The law in effect at the time of the crimes and the time of trial was Ga. L. 1977, p. 1295 (Ga. Code § 27-1503, now substantially the same, in OCGA § 17-7-131).1 In pertinent part it read: “Plea of insanity or mental incompetency at the time of the crime. — (a) In all criminal trials in any of the courts of this state wherein an accused shall contend that he was insane or mentally incompetent under the law at the time of the act or acts charged against him were committed, the trial judge shall instruct the jury that, in case of acquittal on such contention, the jury shall specify in their verdict that the accused person was acquitted because of mental incompetence or insanity at the time of the commission of the act. . . .”
Defendant filed what was designated “Special Plea of Insanity,” but it confused or embraced two pleas recognized by the law at the time. His plea stated: “Now comes the Defendant by his counsel and without waiving his general plea of not guilty hertofore entered, enters this his special plea to the Indictment and says that at the time of the acts charged in the Indictment against him he was suffering under a delusional compulsion within the definition of Section 703 of the Criminal Code of Georgia, that at the times charged he did not have the mental capacity to distinguish between right and wrong as defined in Section 702 of said Code and for the aforementioned reasons he is entitled to an acquittal.”
The defense of delusional compulsion invoked by defendant was governed by Ga. Code § 26-703 “Delusional compulsion. A person shall not be found guilty of a crime when at the time of the act, omission, or negligence constituting the crime, such person, because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.” Ga. L. 1968, pp. 1249, 1270. (Emphasis supplied.)
The law with respect to insanity was in Ga. Code § 26-702, and provided: “Mental capacity; insanity. A person shall not be found guilty of a crime, if at the time of the act, omission, or negligence constituting the crime, such person did not have mental capacity to distinguish between right and wrong in relation to such act, omission, or negligence.” Ga. L. 1968, pp. 1249, 1270. (Emphasis supplied.)
In addition to the usual charges with respect to verdicts of guilty or not guilty, the court continued to charge on the verdict and carefully outlined the special plea as being an additional defense, quoting the two Code sections 702 and 703 and describing what the jury must *326find “in order for you to find that the defendant was not guilty by reason of insanity. . . Then, after assuring the jury that it was the sole judge and should discount any perceived opinion of the court, and briefly summarizing the jury’s duty, the court instructed that the verdict should be in writing, on the back of the indictment, and that it should be unanimous.
Counsel was satisfied with the charge and stated that it was “clear and distinct.” This was in keeping with the charge conference earlier, wherein Code section 27-1503 (a) was discussed and the court indicated that it would give the charge in substance.
This case is in the same category as the situation in Johnston v. State, 232 Ga. 268, 272 (5) (206 SE2d 468) (1974): “The appellant also complains that the trial court erred in not charging Code Ann. § 27-1503 involving acquittal because of insanity. The substance of Code Ann. § 27-1503 was sufficiently charged and where this is done it is not necessary to charge the statute in haec verba. [Cits.]”
Moreover, the jury by its verdict found defendant guilty beyond a reasonable doubt of the two crimes on which he was indicted. By the court’s charge, the jury clearly had the defenses of insanity and delusional compulsion to weigh as well as the general defense of not guilty, and appellant does not contend otherwise. It was therefore harmless error, if any, not to expressly state that in case of acquittal because of mental incompetency or insanity, the jury should specify in the verdict that that was the basis for acquittal. If the jury had acquitted defendant for this reason, failing to understand that they had to so specify expressly on the verdict form, the defendant would have been released unconditionally rather than be subject to confinement in a mental hospital and possible civil commitment. The obvious requirement for the specificity is so that, if the jury accepts the defendant’s defense of insanity or delusional compulsion, which it did not here, the result is not outright and immediate release but rather the state’s continued jurisdiction of the person to assure mental treatment if necessary. Defendant’s argument is one that befits the state instead, when a “not guilty” verdict is returned.
I am authorized to state that Chief Judge Banke, Presiding Judge McMurray, Judge Carley, and Judge Pope join in this special concurrence.
The crimes were committed and defendant was tried in 1979. This case comes up at this time because in 1984, defendant filed a pro se motion for out-of-time appeal, which was granted.