Justice. On September 23, 1947, appellant, Floyd Lee Poole, was convicted of rape (3403, Pope's Digest), and sentenced to death. He brings *Page 747 this appeal; and 4257, Pope's Digest, prescribes the extent of the review. There were eight objections made by the defendant in the course of the trial. We find it necessary to discuss only the one objection that necessitates a reversal.
On July 19, 1945, an information was filed charging Floyd Lee Poole* (hereinafter referred to as "defendant") with the crime of rape, alleged to have been committed on April 13, 1945. On July 20, 1945, the circuit court — upon suggestion that insanity might be an issue — ordered the defendant committed to the State Hospital for examination as provided by initiated Act No. 3 of 1936 (see p. 1384, et seq., of the Acts of 1937). A report was duly made by the superintendent of the State Hospital (who, at that time, was Dr. A.C. Kolb) under date of August 21, 1945, stating that the defendant was then insane and was probably insane at the time of the alleged offense.
Thereupon — on February 18, 1946, — the circuit court made an order (hereinafter referred to as the "1946 order"), reading as follows:
"On this 18th day of February, 1946, this cause coming on for trial, comes the State of Arkansas, by James C. Hale, Prosecuting Attorney for the Second Judicial District, the defendant, Floyd Lee Poole in custody of the Sheriff of Crittenden county and by his attorney of record, Edward J. Reubens, and upon formal arraignment in open court, the defendant by his counsel entered a plea of not guilty by reason of insanity to the charge of rape as alleged in the proper information heretofore filed in this court.
"Counsel for the defendant stated in open court that the defendant had been examined by Dr. James R. Falls, a competent doctor of medicine of his own choosing, and that he was, at the time of the commission of said offense, and is now, non compos mentis; that the report of Dr. A.C. Kolb, Superintendent of the Arkansas State Hospital for Nervous Diseases, which had hereto *Page 748 fore been made a part of this record was in all respects accepted as true and relied upon by the defendant; that such report of Dr. A.C. Kolb found that the defendant was suffering from cerebrospinal syphilis, is not now legally responsible for his actions, and was not legally responsible for his actions at the time of the commission of the offense for which defendant stands charged.
"Being fully advised in the premises the court doth find that the defendant, Floyd Lee Poole, is insane and not legally responsible for his actions; that the defendant was insane and not legally responsible for his acts at the time of the commission of the felony with which he stands charged; that the defendant, Floyd Lee Poole, should be confined in the Arkansas State Hospital for Nervous Diseases as provided by law.
"It is, therefore, the order and judgment of this court that Floyd Lee Poole be taken by the Sheriff of Crittenden county and delivered to the Arkansas State Hospital for Nervous Diseases to be confined therein as provided in 16 of Act 241 of the Acts of the State of Arkansas for the year 1943.
"It is the further order and judgment of this court that all further action in this cause be stayed and held in abeyance by reason of the insanity of the defendant until the further order and direction of this court."
On January 13, 1947, the defendant (having escaped from the State Hospital) was found at large, and was taken in custody by the Sheriff of the county and brought before the Crittenden Circuit Court; and an order was made (hereinafter referred to as the "1947 order"), in part as follows:
"On this 13th day of January, 1947, this matter being brought before this court, comes the State of Arkansas by James C. Hale, Prosecuting Attorney within and for the Second Judicial District, and the Defendant, Floyd Lee Poole, in the custody of the Sheriff of Crittenden county.
"Being fully advised in the premises the court doth find: *Page 749
"That Floyd Lee Poole was properly charged with the crime of rape by information filed on the 19th day of July, 1945; that this court subsequently on the 20th day of July, 1945, entered its order directing the defendant to be delivered to the State Hospital for Nervous Diseases for observation and examination, the insanity of the defendant having been properly suggested; that thereafter on the 21st day of August, 1945, the State Hospital for Nervous Diseases by and through Dr. A. C. Kolb, the Superintendent thereof, furnished this court with a report of the examination of the defendant which report stated that the defendant, Floyd Lee Poole, was diagnosed as having psychosis with cerebrospinal syphilis and that he was not legally responsible for his acts at the time of the examination or at the time of the alleged crime. The court thereupon entered its order on February 18, 1946, committing the defendant, Floyd Lee Poole, to the State Hospital for Nervous Diseases according to the provisions of 16 of Act 241 of the Acts of Arkansas for the year 1943.
"Being further advised in the premises the court doth find . . . that the defendant was not properly confined and on two occasions thereafter departed from the institution and resumed the illegal acts . . .; that the Sheriff of Crittenden county was again advised and again took the defendant into custody.
"It is the order and judgment of this court that Floyd Lee Poole be taken by the Sheriff of Crittenden county, Arkansas, and delivered to the Keeper or Superintendent of the Arkansas State Hospital for Nervous Diseases; the Superintendent of said institution is hereby directed to keep the defendant, Floyd Lee Poole, who is by this court found to be an insane criminal, securely confined in the proper ward of said institution from this date until the further order of this court."
Later in 1947, Dr. G. W. Jackson, then superintendent of the State Hospital, reported that the defendant was sane; so the defendant was returned to the Crittenden Circuit Court, and on September 23, 1947, he was placed on trial on the original information filed on July *Page 750 19, 1945, as heretofore mentioned. At that trial — from which comes this appeal — the defense was insanity. The trial court first admitted in evidence on behalf of the defendant the 1946 and 1947 orders; but at the conclusion of the evidence, and after the defendant had rested his case, the court excluded both of the said orders. This appears in the record:
"The Court: Gentlemen of the jury, during the progress of the trial of this case an order dated the 18th of February, 1946, made by Judge Killough, committing the defendant to the Hospital for Nervous Diseases, and an order made by this court on the 13th day of January, 1947, committing the defendant to the State Hospital for Nervous Diseases, was admitted in evidence. It has now been determined that these two orders were not properly admitted in evidence before you, and you are told in arriving at your verdict in this case that you are not to consider these orders for any purpose."
The defendant duly excepted to the above ruling; and the exclusion of these orders is one of the points argued for reversal.
It is a rule of almost universal recognition that in criminal cases, when insanity is relied on as a defense, an adjudication declaring the defendant to be an insane person is competent to go to the jury as evidence on that issue. The adjudication may be prior to the alleged offense or reasonably subsequent to the alleged offense, for which the defendant is being tried. Such adjudication is not conclusive of the insanity of the defendant, but is admissible in evidence for consideration by the jury with all the other evidence bearing on the question of the defendant's insanity. Our own case of McCully v. State, 141 Ark. 450, 217 S.W. 453, is directly in point. In that case the defendant was being tried for incest, and offered an adjudication of the probate court committing the defendant to an insane asylum.* The trial court refused to admit the probate record in evidence, *Page 751 but this court reversed the trial court, and held that the record of commitment to an asylum was admissible on the issue of insanity. Mr. Justice WOOD, speaking for this court, said:
"To determine the issue as to whether the appellant was insane at the time of the alleged commission of the offense, testimony tending to show the mental condition of the accused both before and after the commission of the act was competent. 1st McClain on Criminal Law, p. 136.
. . . . .
"In criminal cases the record of inquisitions of lunacy or insanity is competent to go to the jury as evidence on that issue, but the weight of such evidence is for the jury."
Cases from other jurisdictions are in accord with our holding, that an adjudication of insanity is competent evidence to be offered upon the defendant's trial for the commission of a crime alleged to have been committed either prior or subsequent to the adjudication of insanity. Some such cases are: Davidson v. Commonwealth,171 Ky. 488, 188 S.W. 631; State v. McMurry,61 Kan. 87, 58 P. 961; Wheeler v. State, 34 Ohio St. 394, 32 Am.Rep. 372; Hempton v. State, 111 Wis. 127,86 N.W. 596; People v. Farrell, 31 Cal. 576; State v. Glindemann,34 Wash, 221, 75 P. 800, 101 A.S.R. 1001; Bond v. State, 129 Tenn. 75, 165 S.W. 229; and Smedley v. Commonwealth, 139 Ky. 767, 127 S.W. 485. See also 16 C.J. 558 and 23 C.J.S. 203, and annotations in 7 A.L.R. 568 and 68 A.L.R. 1390 on the topic, "Admissibility and probative force, on issue as to mental condition, of evidence that one had been adjudged incompetent or insane, or had been confined in insane asylum."
The excluded orders of the circuit court — as heretofore mentioned — had a direct bearing on the issue of the defendant's insanity. It was under the 1946 order that the defendant was confined in the State Hospital *Page 752 under the provisions of 9, et seq., of Act 241 of 1943,* which provides that such an order of the circuit court is authority for the superintendent of the State Hospital to receive and hold a defendant until his restoration to sanity. The 1947 order directed the recommitment of the defendant because there was no showing that he had been restored to sanity. Certainly, these court orders made in 1946 and 1947 had a direct bearing on the question of the defendant's insanity and were admissible in evidence under the authorities previously cited.
Two contentions are urged against reversing this case because of the exclusion of these orders. We discuss these arguments.
1. It is claimed that the 1946 order was based on the report of Dr. A.C. Kolb, then superintendent of the State Hospital, and that the report itself was introduced in evidence, and that Dr. Kolb was a witness at the present trial, so — it is insisted — that there was no error in the court's refusal to admit the 1946 order based on Dr. Kolb's report. To that contention the answer is twofold: (a) The judgment shows that other matters were before the court in 1946 besides Dr. Kolb's report. One such matter was the statement in open court that the defendant had been examined by Dr. James R. Falls, who found the defendant to be non compos mentis. This statement in the 1946 order stands as a stipulation of what Dr. Falls' testimony would be; and Dr. Falls was not shown to be present at the trial from whence comes this appeal. (b) Furthermore, the court, when it made the 1946 order, was not bound to accept Dr. Kolb's report, even though substantiated by Dr. Falls' testimony. The 1946 order gave judicial approval to the report, and constituted an adjudication by the court that the defendant was then insane. Section 9 of Act 241 of 1943 provides for such an adjudication to be made as the basis for committing the defendant to the State Hospital. The adjudication is much stronger than the report of the superintendent and the testimony of witnesses; and the *Page 753 adjudication itself is what is admissible. In McCully v. State, supra, the circuit court, in refusing to admit the adjudication, said that the "best evidence is to bring in witnesses before the jury and let them testify as to his sanity or insanity." As previously stated, we reversed the trial court in the McCully case, and rejected the same argument as is here advanced. The 1947 order does not recite upon what evidence the court acted, but considerable factual matters are contained in the order, which recites — inter alia — that the defendant "is by this court found to be an insane criminal." So, certainly, the 1947 order, constituting an adjudication and recommitment to the State Hospital, was admissible in evidence for the reasons heretofore stated.
2. The second argument urged against the admissibility of the court orders of 1946 and 1947 is, that they were merely preliminary steps in the same case, and — as such — were only interlocutory orders and do not come within the general rule first stated herein. The answer to that argument is, that the 1946 and 1947 orders were adjudications of insanity, authorized and required to be made as the legal .foundation for committing the defendant to the State Hospital. They were made under the authority of 9, et seq., of Act 241 of 1943, and were as final as any adjudication of insanity. In Carson v. State, 198 Ark. 112, 128 S.W.2d 373, the defendant was determined to be insane and was committed to the State Hospital; and later, upon restoration to sanity, was returned for trial. That is exactly the procedure here followed. A well-considered case on the question here at issue, and involving facts somewhat similar to those in the case at bar, is that of Bond v. State, 129 Tenn. 75,165 S.W. 229. Bond was indicted in January, 1909, for obtaining money under false pretenses, the offense alleged to have been committed in November, 1908. In November, 1909, he was adjudged insane. In 1910, he was arraigned on the indictment, but found insane and ordered committed to the hospital for the insane. Then in September, 1913, upon apparent restoration to sanity, he was tried on the original indictment. At this trial Bond's defense was continued insanity; and he sought *Page 754 to introduce in evidence the adjudication of insanity made in 1909, and the commitment order of 1910. The trial court refused to admit the adjudication order and the commitment order; and the Supreme Court of Tennessee reversed the conviction because of such error by the trial court.
Another well-considered case on the point at issue, and involving a somewhat similar state of facts, is that of Smedley v. Commonwealth, 139 Ky. 767, 127 S.W. 485. Smedley was charged with embezzlement. After indictment, he was adjudged insane and committed to the asylum by the trial court, and his case continued. Later, the superintendent of the asylum certified that Smedley was sane, and he was then placed on trial on the original indictment. At his trial he sought to introduce in evidence the adjudication of insanity. The lower court ruled the adjudication to be inadmissible, but the Court of Appeals of Kentucky reversed the trial court, saying:
"We are further of the opinion that appellant's complaint of the exclusion by the court from the consideration of the jury of the record containing the writ, judgment, and other proceedings in the inquisition of lunacy offered in evidence by appellant to show that he had properly been found and adjudged of unsound mind shortly before his trial is well founded, for the exclusion of this evidence was error.
"It appears that the inquest was held at the same term of the court at which appellant's trial under the indictment occurred, and that from the time of the inquest until within a few days of his trial he was confined in the lunatic asylum at Hopkinsville; his return to the custody of the jailer of McCracken county having been ordered by the court upon a written statement from the superintendent of the asylum that his mind had been restored. His principal defense was that he was of unsound mind at the time of committing the crime charged in the indictment, and much of the evidence introduced in his behalf tended to show that throughout his term of office as county clerk, and down to the time of the trial, he was greatly addicted to the use of morphine or *Page 755 other drugs by which his mind was much impaired, it not destroyed. Thus it will be seen that the inquest of lunacy furnished an important link in the chain of evidence upon which rested his main defense."
We conclude that the trial court in the case at bar erred in excluding the 1946 and 1947 orders from being considered by the jury, on the question of the insanity of the defendant. That such error was prejudicial is settled by our case of McCully v. State, supra, where — for a similar error — we reversed the judgment of the trial court and remanded the cause for a new trial; and such is our order in the present case.
* In some instances in the record the name is spelled Pool; in others, Poole. The person is the same.
* The original Transcript on McCully v. State shows (1) that the indictment charged the offense to have been committed on January 15, 1915, and (2) that the defendant was committed to the asylum on July 14, 1915.
* Sections 9 to 12, inclusive, of said Act 241 of 1943 are substantial reenactments of 12555 to 12558, inclusive, Pope's Digest, which are taken from Act 174 of the Acts of 1893, and were construed by this court in ex parte Baker, 121 Ark. 537, 182 S.W. 279.