The appellant was convicted of second degree burglary, and sentenced to the Indiana Reformatory for a period of not less than two (2) years nor more than five (5) years.
*457The appellant raises two main points for consideration on this appeal. The first contention is that he was entitled to a trial separate from his co-defendant for the reason that there was some question as to the sanity of the defendant. The mere fact alone that there may be an issue of insanity raised by the petitioning defendant would not necessarily compel a separate trial. There is no showing or suggestion of any injury or prejudice to the appellant which would result from the trial with his co-defendant. The granting of a motion for a separate trial where the defendants are jointly indicted rests within the sound judicial discretion of the trial court. It is only where there is a plain and arbitrary abuse of such discretion that a denial of separation will be reversed. The appellant fails to point out any abuse of such discretion in this case by the trial court. We therefore find no grounds for declaring any abuse of discretion on the part of the trial court in denying the petition. Acts 1935, ch. 92, §1, p. 286, being §9-1804 Burns’ 1956 Replacement; Neal v. State (1938), 214 Ind. 328, 14 N. E. 2d 590, 15 N. E. 2d 950.
The second contention of the appellant is that the appellant at the time of the commission of the alleged crime, and at the time of the trial, was under a commitment to the Central State Hospital, under an order issued by Judge Lloyd Claycombe of the Marion Circuit Court, as a result of an insanity inquest; that with such commitment outstanding the trial court (Criminal Court of Marion County, Division No. 1) had no jurisdiction to try the appellant for a crime as charged.
The record shows that the attorney for appellant suggested to the court prior to trial, the facts regarding the possibility of the insanity of the appellant. This was done by the submission of a letter presented to the court addressed to appellant’s attorney from Dr. *458C. L. Williams, Superintendent of the Central State Hospital. This letter stated, among other things, that the appellant had been committed to that hospital by the Marion Circuit Court on November 4, 1953, and after showing improvement, he was released from the hospital in the custody of his mother. It was while released from the hospital the alleged crime was committed. There was no court record introduced showing any formal restoration of sanity.
The trial court (Criminal Court of Marion County Division No. 1) thereupon, pursuant to Acts 1951, ch. 238, §2, p. 682, being §9-1706a Burns’ 1956 Replacement, appointed two physicians to examine the defendant, and report upon his sanity. This statute, in part, says:
“If the court shall find that the defendant has comprehension sufficient to understand the nature of the criminal action against him and the proceedings thereon and to make his defense, the trial shall not be delayed or continued on the ground of the alleged insanity of the defendant.”
At the preliminary hearing following the testimony of the physicians so appointed, the court found that the defendant had sufficient comprehension to understand the nature of the criminal action against him and the proceedings, and to make his defense. This finding was amply supported by the testimony of the medical experts. Thereafter, the appellant was tried on the pending criminal charge, and found guilty by the court.
It is to be observed that the appellant made no special plea of insanity to the crime charged, as must be done to raise such issue under Acts 1905, ch. 169, §198, p. 584, being §9-1132, and Acts 1913, ch. 298, §1, p. 774, being §9-1701, Burns’ 1956 Replacement, and no evidence was introduced on such an issue at the trial proper. It should likewise be pointed out that no ques*459tion is raised on this appeal as to the sufficiency of the evidence. There is no specification in the motion for a new trial on that point, nor on the point that the verdict was contrary to law. The only point urged relative to the insanity question is the lack of jurisdiction of the trial court to try the case. This issue was raised by a motion to dismiss on the ground that the trial court had no jurisdiction by reason of the fact that defendant “was ordered committed as an insane person, to the Central State Hospital on November 4th, 1953”; and the trial court in entertaining the criminal charge against the appellant was permitting “a collateral attack” upon the order of commitment of the Circuit Court.
The state points out that there is no evidence in the record showing the “appellant was ordered committed as an insane person.” This may be technically true; however, we prefer to place our decision upon more substantial grounds.
We are concerned here with the power of a court to assume jurisdiction to try a defendant charged with a crime, who at the time was under a commitment to a mental institution as a result of an insanity hearing or inquest other than that resulting from a criminal prosecution. This jurisdictional question appears to be one of first impression in this state; however, there are certain guiding principles which should not be overlooked.
An insanity inquest without a commitment being involved, may be used to determine the necessity for the appointment of a guardian on the showing that the subjected person does not have the ability or capacity to manage his personal affairs and business.
The purpose of the normal proceedings for the commitment of an insane person to a mental hospital is for his treatment, and the protection of society against *460his violence. The proceedings are, for the most part, ex parte in nature, and may be based upon a voluntary petition in some instances. Acts 1929, ch. 89, §1, p. 288, being §22-1201 et seq., Burns’ 1950 Replacement. A defendant may also be ordered committed to the Dr. Norman M. Beatty Memorial Hospital under §9-1706a supra, at a preliminary hearing prior to a criminal trial when it is found the defendant is not mentally fit to stand trial at the time. However, even in such a case, the trial court does not lose jurisdiction, but under the statute may reconsider the matter any time.
We are not, however, here concerned with a commitment to the Dr. Norman M. Beatty Memorial Hospital. We do not believe that it is the purpose or intent of the law that a commitment to a mental institution shall be a defense to any criminal prosecution, or deprives a court of jurisdiction to try one so committed for a criminal offense under the circumstances here. Such a rule would create an immunity against prosecution so long as such a commitment is outstanding. We are all aware that there are various types of insanity and mental disorders. Some are curable and some are not. There are also various degrees of such illness. Some of these types and degrees do not meet the legal test of insanity sufficiently to be a defense to a law violation. In other words, medical insanity is not the same as legal insanity as a bar to criminal prosecution. Not every mental aberration or disorder will excuse the commission of a crime. There is criminal responsibility where there is sufficient mentality to fully comprehend the nature and consequences of one’s acts coupled with a will power capable of controlling the acts, regardless of other abnormal mental characteristics. An insanity inquest does not adjudicate such an issue. Kallas v. State (1949), 227 Ind. 103, 83 N. E. 2d 769 (Cert. Denied *461336 U. S. 940, 93 L. Ed. 1098, 69 S. Ct. 744); Foster v. State (1944), 222 Ind. 133, 52 N. E. 2d 358; Swain v. State (1939), 215 Ind. 259, 18 N. E. 2d 921; Cert. Denied 306 U. S. 660, 59 S. Ct. 791, 83 L. Ed. 1057; 7 Notre Dame L. J. 390; 30 Ind. L. J. 194.
In Goodwin v. The State (1884), 96 Ind. 550, this court held the finding of insanity at an insanity inquest was not conclusive on the state in a criminal prosecution, and the state may introduce evidence to rebut the finding.
There are possible situations in which a person might be a proper subject for commitment and treatment in a mental institution, and yet have sufficient mental capacity to make a will, transact business, be a witness, and be legally responsible for the commission of a crime, depending upon the degree and nature of the mental disorder. Emry v. Beaver (1922), 192 Ind. 471, 137 N. E. 55; Breedlove et al v. Bundy (1884), 96 Ind. 319; Hicks v. State (1905), 165 Ind. 440, 75 N. E. 641.
Moreover, a commitment for insanity to a mental institution may be outstanding where there has been improvement or complete recovery. A delay or failure to have a decree entered adjudicating a restoration of sanity, should not prevent a court from assuming jurisdiction of a case in which such a person is charged with a crime. Where a crime is charged the proper manner for settling a question of existing mental condition is that provided under Burns’ §9-1706a, supra, and where that of legal responsibility for criminal acts is involved, by pleading specially insanity as a defense to the crime charged as provided by statute (Burns’ §9-1132 and §9-1701, supra). The courts have been given jurisdiction to determine these questions in criminal cases.
The Supreme Court of Ohio has held that one sub*462ject to confinement in an insane asylum was not immune from prosecution for his crimes. State ex rel. v. Owen (1937), 133 Ohio St. 96, 12 N. E. 2d 144, 114 A. L. R. 686.
It is our opinion that the trial court had jurisdiction to try the appellant for the crime charged, although there was at the time of the alleged commission of the crime, and at the time of the trial outstanding a commitment for insanity to Central State Hospital.
Appellant did not enter a plea of insanity as a defense following a report of the physicians appointed by the court. On this appeal appellant was represented by counsel different from that which he retained at the trial. No question has been raised here or suggested by such counsel as to any incompetency of trial counsel in failing to make a defense of insanity at the trial. We have no right to make such an assumption. Suffice it to say, that there are many factors to consider in making a plea of insanity, one of these is that it often opens the door quite widely to all kinds of evidence as to the experience and activities of the defendant. It is not for us to pass judgment upon the appellant or the appellant’s trial counsel as to the wisdom of the course he takes to defend himself. These are matters for their determination, not ours.
The judgment is affirmed.
Bobbitt and Landis, JJ., concur. Achor, C. J., concurs with opinion. Emmert, J., dissents with opinion.