I agree with the principles of law stated in the opinion of the Court, but I cannot concur in the conclusion reached. A careful examination of the Record does not, in my opinion, justify the finding that the appellant was in the slightest degree injured by the action of the trial Court. The defense of insanity was not withdrawn from the consideration of the jury, and it is not shown that that defense was not fully presented and argued to the jury, as the counsel for the appellant had a perfect right to do under the form of the verdict given by the Court. Under that form the jury were at liberty to acquit the appellant upon the ground of insanity, if they found him to be insane at the time of the commission of the crime. Again, there are no facts to warrant the Court, in my judgment, in suspending Rule 36, and the judgment should be affirmed for the failure to comply with that rule.
Upon both grounds indicated the judgment, in my opinion, should be affirmed. I am authorized by JUDGE STOCKBRIDGE to say that he concurs in the views herein expressed. *Page 632