If this case could be sustained at all on the facts, it would be on the testimony of appellant himself. All the other witnesses, as I understand the record, testify that he is crazy. Walker, the nonexpert, states, that while he believes appellant knew right from wrong, further states, on the hypothetical case put to him, that a man troubled with such delusions would not be responsible for his actions. Costley, the jailer, says that he noticed him closely while in jail; that he did not consider him crazy, but "nutty" on the subject of religion; that he was continually preaching and shouting, and seemed to be laboring under the delusion that he was converting large numbers of people all the time. He did not know whether appellant fasted twenty days or not, except what was told him by the other prisoners. Dr. Howard testified, as a physician and expert, that he had made a personal examination of the defendant; had observed his actions, saw him and talked with him, and heard his testimony delivered in court, and that in his opinion appellant was insane; that his insanity was of such a kind that he would not be able to distinguish between right and wrong with regard to the crime of bigamy; that he did not think at the present time, nor at the time he saw him in the county jail, that appellant was capable of judging between right and wrong in marrying his second wife while his first wife was still alive, or of knowing that such action was illegal. A man whose mind was in such a diseased condition that he believed he had personal revelations from God in visions, directing him in all of his important undertakings, and such delusions continued in his waking hours as well as in his sleeping state, and were real to him, and such conditions continued *Page 168 through a space of years, would not be capable of judging between right and wrong in regard to any action closely connected with such delusions. As stated above, all the witnesses tend to show that appellant was suffering under a diseased state of mind, and that Dr. Walker, who was the most reliable because he knew what he was testifying about, shows beyond any reasonable doubt, that appellant was suffering under a delusion which rendered him irresponsible and incapable of distinguishing between right and wrong in regard to the crime of bigamy. But, as stated, if we are to rely on appellant's testimony, to the exclusion of the other sane witnesses, this case may be affirmed, because he declared he was not crazy, but had as much sense as any man in the courtroom. However, it occurs to me that his testimony would suggest that the defense here set up was not a pretext or subterfuge. I do not believe that it was a question of emotional insanity, though Dr. Walker called his delusions religious or emotional insanity. As testified by him, appellant did not know the difference between right and wrong with regard to the crime of bigamy, and this was the result of a delusion caused by an insane mind. This comes within the strict test as laid down by our own authorities on the subject of insanity. Of course, appellant says he knew it was wrong to marry the second time; that he knew it was a violation of law to marry without a divorce, but if there is any meaning in the testimony of the other witnesses, especially of Dr. Walker, this is simply the raving of a crazy man. Nor do I believe, if the views here insisted on become the law of the land, there is any danger of mormonizing the people of this State. The Mormons seem to have derived their religion from the Old Testament, in part at least, and plural marriages is, or was, a part of their creed, but has never been considered the result of insane delusions. Nor do I know that any one has ever charged Brigham Young or Joseph Smith with being lunatics. The simple question here presented from the evidence is, was appellant, at the time of his second marriage, laboring under such a delusion as not to know the difference between the right and wrong of the act of bigamy, and was this delusion caused by a diseased mind, which unsettled his faculties to such an extent that he did not know it was wrong, both according to the laws of God and man to marry, having another wife then living? That the evidence established that such was his condition of mind I do not entertain any doubt. I do not believe the penitentiary is the place for him, but rather the lunatic asylum. *Page 169