Appellant was charged by information with murder in the first degree for the shooting and killing of J. B. Keller, a guard who attempted to prevent his escape from the State Hospital for Nervous Diseases, in which he was confined for observation on another charge. On his motion for a continuance, suggesting his insanity, the court made an order committing him to the said State Hospital for Nervous Diseases for observation and report. At his own suggestion and on his own motion, the court later made an order removing him from said hospital and recommitting him to the county jail. He also moved the court for a separate sanity hearing and that his trial for murder be postponed until a jury should determine his sanity. This motion was overruled. He was put to trial September 19, 1938, and the jury returned a verdict that he was insane at the time of trial. The court, on further consideration, determined that error had been committed in submitting to the jury *Page 114 the question of appellant's sanity at the time of the trial, declared a mistrial, and, acting under the provisions of 12555-12558 of Pope's Digest, recommitted him to said State Hospital to be there confined as an insane person until declared by the physicians thereof to be restored to reason, when he should be, on demand, returned to the sheriff of Pulaski county to be again confined in the county jail.
On October 31, 1938, after the hospital authorities had again reported appellant sane, he entered his plea of guilty to murder in the first degree, and the court made the following docket entry: "10/31/38 Plea of guilty by Joel Carson, alias Jewell Carson, to murder in the first degree. Death penalty waived by prosecuting attorney. By agreement and by consent of court the jury is waived. Case passed for judgment defendant to be returned immediately to the state of Oklahoma to complete his unexpired sentence in the Oklahoma state penitentiary, with the understanding that this record shall show defendant is to be held and delivered to Arkansas authorities upon expiration of his sentence in Oklahoma or upon his release therefrom for any reason, thereupon he is to be returned to the court and sentenced to life imprisonment upon the above indictment and plea of guilty."
On November 22, 1938, appellant filed another motion for a separate sanity hearing, alleging he was then insane. Also a motion to set aside his plea of guilty on the ground he was insane at the time of entering said plea. Also a plea of former jeopardy was interposed. These motions and plea were overruled. The court found that the plea of guilty had been accepted, and that the case had been passed for judgment on certain conditions which were not fulfilled to the satisfaction of the court. Appellant was put to trial on his plea of guilt, a jury impaneled to hear evidence and determine the degree of the offense charged. Such trial resulted in a verdict of guilty of murder in the first degree, with the death penalty, on which judgment was accordingly entered. *Page 115
To reverse this judgment, appellant first contends that the court erred in denying him the right to withdraw his plea of guilty. The statute provides, 3901, Pope's Digest, that: "The plea of guilty can only be put in by the defendant himself in open court." The next section, 3902, says: "At any time before judgment the court may permit the plea of guilty to be withdrawn and a plea of not guilty substituted."
It has long been the rule, construing the statute, that the right to withdraw a plea of guilty rests in the sound discretion of the trial court and that its action in this regard will be reversed only when it clearly appears that its discretion has been abused. Green v. State, 88 Ark. 290,114 S.W. 477; Joiner v. State, 94 Ark. 198,126 S.W. 723; Estes v. State, 180 Ark. 633, 22 S.W.2d 36. The discretion of the trial court to permit the withdrawal of the plea of guilty will be indulged in favor of the proper exercise thereof. McLain v. State, 165 Ark. 48, 262 S.W. 987.
Appellant bases his whole argument, under this assignment, on the assumption that the plea of guilty was entered on condition and that under the law, a conditional plea cannot be made. Assuming the correctness of this conclusion, as a matter of law, still if the premise is false, the conclusion does not follow. There was no conditional plea of guilty. It appears to be unconditional, and only the suspension of sentence was conditional. The court had the right to postpone sentence on the plea. McPherson v. State, 187 Ark. 872, 63 S.W.2d 282. It did not have the right to waive the impaneling of a jury to determine the degree of the crime. Section 4041, Pope's Digest, provides: ". . . but if the accused confess his guilt, the court shall impanel a jury and examine testimony, and the degree of the crime shall be found by such jury." This statute has many times been held to be mandatory. Banks v. State, 143 Ark. 154,219 S.W. 1015; Wells v. State, 193 Ark. 1092, 104 S.W.2d 451. So, neither the prosecuting attorney nor the court could waive the impaneling of a jury and the jury alone could fix the degree of the crime. Section 3912 of the digest provides: "In all criminal cases except where a sentence *Page 116 of death may be imposed, trial by a jury may be waived by the defendant, provided the prosecuting attorney gives his assent to such waiver. Such waiver and the assent thereto shall be made in open court and entered of record. . . ." So it will be seen that in this case not even appellant could waive the jury. The prosecuting attorney could make a recommendation to the jury, as he did in this case, but the jury could and did in this case disregard same. We, therefore, conclude that the court did not err in refusing to permit appellant to withdraw his plea, or at least we cannot say that such refusal was an abuse of discretion.
It is next urged that the court erred in holding that the question of present sanity was not an issue and in denying him a separate trial on such issue. We cannot agree. Insanity is a defense, and, if we are correct in holding that appellant properly entered his plea of guilt and that no error was committed in refusing permission to withdraw same, of course, the question of his present sanity was not an issue.
It is finally argued that the court erred in refusing his plea of former jeopardy. At the first trial, the court submitted three issues: (1) Whether appellant was guilty of some degree of murder; (2) whether he was insane at the time the crime was alleged to have been committed; and (3) whether he was insane at the time of trial. The jury found him insane at the time of trial and nothing more, and thereafter the court declared a mistrial. This was not sufficient to support the plea of former jeopardy. The rule is stated in 15 Am.Jur., p. 51, as follows: "One found by the jury to be insane at time of trial cannot plead former jeopardy when arraigned a second time on the same charge, although the jury at the same time returned a verdict of guilty which was set aside by the court." Our statute, 3881 of Pope's Digest, is persuasive to this same effect.
No error appearing, the judgment is affirmed.
SMITH, HUMPHREYS, and HOLT, JJ., dissent.