Reeves v. State , 196 Ga. 604 ( 1943 )

1. The verdict of guilty was authorized by testimony for the State that the defendant called the deceased to the front door of his home and shot him without justification. While the defendant in his statement to the jury related matters such as might have authorized them to find that, by reason of previous head injuries, his mind at the time of the homicide was a blank and unable to distinguish between right and wrong, it was the prerogative of the jury to accept or reject these statements, which were unsupported by any testimony, and which were negatived both by the legal presumption of sanity, and by testimony from several witnesses for the State, that, just before and after the shooting, his words and acts were rational and he seemed to be fully aware of what he was about to do or had done. See Code, § 38-415; Brown v. State, 148 Ga. 264 (96 S.E. 433); Rozier v. State, 185 Ga. 317, 319 (195 S.E. 172), and cit.; Willis v. State, 63 Ga. App. 262 (10 S.E.2d 763), and cit.

2. It was not erroneous or prejudicial to the defendant to charge to the jury the language of the Code, § 26-303, as to criminal responsibility in cases of lunatics or persons insane, with or without lucid intervals, in view of the contention of the defendant in his statement to the jury that at the time of the homicide and at previous times his mind was "a blank;" especially in view of the judge's note to this ground, that the instruction was given as it was "read to the court by counsel for the defendant in the beginning of the argument to the jury."

3. For reasons stated in the opinion, the charge on the subject of delusional insanity was not erroneous on the grounds assigned, or on any ground of which the defendant can complain.

No. 14525. SEPTEMBER 9, 1943. REHEARING DENIED OCTOBER 8, 1943. C. B. Reeves was found guilty, without a recommendation, of the murder of E. A. Barnett, and a new trial was refused. The defendant excepted on the general grounds, and on special grounds relating to charges on the law of insanity.

There was testimony for the State that the defendant, chief of police at Arlington, drove with his wife in his automobile from their home to Leary, where he blew his horn in front of the home where the deceased and the latter's wife had been asleep in the early morning, and called for the deceased to come out, that he wanted to see the deceased. When the deceased walked off the porch to the car and greeted the defendant, "Hello, Clem," the defendant said, "I'm going to kill you," and shot once with a pistol. After the deceased said, "What is the trouble? Let's talk," and the wife of the deceased pleaded for the defendant not to kill him, the defendant fired again several times, and remained in his car while the deceased was on the ground. There were wounds in the head and chest of the deceased, from which he died in a few minutes. When the defendant drove his car up to the home of the deceased, the wife of the defendant was seen "twisting and turning," and after the shooting she jumped out of the car, barefooted, and ran into the house of a neighbor of the deceased.

As to the mental condition of the defendant, the sheriff, at Morgan seven miles distant from the place of the homicide, testified, that after he had been informed of the homicide the defendant drove up to the sheriff's house with a pistol in hand, from which he took out four empty shells; that when the sheriff asked, "Clem, why did you shoot Ed Barnett?" the defendant replied, "Have I killed him?" and, when informed that the sheriff had been told this by telephone, said, "I have been wanting him for twenty years," and made a similar statement to two other persons; that he asked to go into the sheriff's house and wash blood from his hands, and then said he was ready to go; that he asked the sheriff to call an attorney, who was one of defendant's counsel in the trial, and this attorney came to the jail; that the defendant would not eat the breakfast brought to him, but drank two cups of coffee; that later in the day he told the sheriff at the jail that on "the day of [defendant's] wedding" the deceased and two others "came to the wedding and brought some rice and onions and sardines, and that they were very lively for some cause or other, but that he didn't think anything about it, and that after the wedding they threw some rice on him, but there were no onions or other stuff thrown;" and the defendant further said, "after he had been married a few days, he felt there was something wrong with his wife, and that was what caused his grudge at" the deceased; that "he had started to Leary about ten years ago to kill [the deceased], . . but that they got in the creek and the car drowned out, and they never did get there;" and that "if he had gotten [the deceased], he was satisfied, and they could do whatever they wanted to do with him."

The mother of the defendant's wife testified that after the shooting he came to the mother's house, not far from the home of the deceased, and asked if his wife was at the mother's house, and, when told that she was not there and that some one had shot the deceased, told her that "he did it and walked off," then drove away in his car in the direction of Morgan.

These witnesses testified that when they saw the defendant after the homicide he appeared to be calm, steady, and rational. When one witness asked, "What in the world was the matter?" the defendant replied, "Oh, just a little trouble;" and when told, "You ought not to have killed" the deceased, he asked, "Did I kill him?" and when informed that he had done so, said, "Okay, that is what I meant to do." Another witness testified to like effect. One witness said that he had greeted the defendant in Leary just before the shooting, and was greeted with a reply calling his name, and testified that "there did not seem to be anything irrational about his conduct."

The defendant offered no testimony. Essential portions of his statement to the jury are as follows: that he was then forty-three years old; that at the age of five he fell from a pony, knocked his head on the ground, lay unconscious for a day or two, and afterwards "things that happened in the past were not clear to me, it would take several days to come back bit by bit, and I eventually got my past life together;" that at about the age of eleven he was riding in a buggy, the horses became frightened and threw the buggy against a tree; that they carried him to a doctor, and "the next day I didn't remember a thing that happened;" that at the age of sixteen, after he enlisted in the army in 1916, he "commenced suffering from headaches, . . and it got worse and worse," and he became unconscious; that a doctor in Macon operated on him "for double mastoids," after which he returned to his company in the army; that he went to France with the Rainbow Division, where there was severe fighting and heavy casualties, and one morning "was blown up two or three times;" that later while "sitting at the edge of a fox hole, a German shell burst overhead, and shrapnel hit me right there [indicating], and when I came to, my nose was bleeding and my ears were bleeding;" that he "was sent to the hospital, and soon returned to duty;" that in the army of occupation in Germany he "began to have those headaches again;" that after the armistice, when he was sent back to the United States, "they examined me and gave me my discharge and gave me a disability rating on account of this head trouble;" that when he came home, while working at the depot where buggies were being unloaded, he was thrown by a buggy "off the platform on the track, and the rail struck me just above the ear there, and . . the agent, I afterwards learned, carried me home;" that the doctor said there was "a concussion," and that it was dangerous to get up, as he was "liable to have a stroke;" that "shortly after that, I don't know what happened to me, one morning about one o'clock I waked up in Atlanta, and after I checked up I found out I had been gone from home several days. I didn't tell [the railroad agent] I was leaving. I liked to work for him, and it was a good job, and I don't know why I left or anything about it." Afterwards, the defendant said, he joined the Merchant Marines, but "continued having headaches" while on a ship, and obtained his discharge in about six weeks, returned home, and started to farming. When examined by Government order in 1921, "they told me I had t.b. started in both lungs, and they sent me to Johnson City, Tennessee," where he remained until discharged in April, 1922. As to his wife, Thelma, he said that he started going with her before he worked for the railroad; that during such work they became engaged, and on November 9 were married at Leary. "We were out on the porch, Thelma, her mother, and I, and Mr. Barnett [the deceased] came up laughing and talking. I never met him. I knew him, but had never met him. He presented Thelma with a sack of sardines and onions and had lots of fun over it. After a while the preacher came in, and it looked like Barnett took an unusual interest in the wedding. I just thought that he was a special friend of the family, and didn't pay any attention to it at all." His first child, he said, was born in August; and when this child "was about three months old, Thelma came to visit her mother, and was gone about three weeks. She came back to Athens," where the defendant was taking training at the University, "and in a day or two she told me she did something that possibly I would not like, and I said, ``What was it?' and she said, ``While I was at home [her father] got Ed Barnett [the deceased] to take me over to my mother's,' and I said, ``What did you say?' and she said, ``While I was at home [he] got Ed Barnett to take me over to mother's,' and I told her that was all right."

In the following year, 1924, at Arlington, the defendant said that he "began to have those headaches again, and when I had time I would go to sleep. That was the only relief that I could get. They would practically run me crazy; and when I would go to sleep and wake up, I would be nervous and exhausted. Along in March I felt something drop in my head. I didn't feel bad or good. I went to the house and lay down, and it was not but a little while before my head began to hurt." The doctor said that the defendant would have to be "operated on at once; unless it was relieved I would die." The doctor at the Veterans' Hospital in Atlanta "found it was an old place . . that had not healed from the other operation . . it was a sort of pocket, and he tried to heal it . . but he could not, and I began taking ultraviolet ray treatments." During this time the doctor "had that pocket filled full of gauze, and every other day he would pull it out and irrigate the pocket with water," which had to be the same temperature as the body or "it would knock me out." When discharged from the hospital in July and engaged in farming at home, "I would go with those headaches which occurred at intervals, or may be I would go two or three months without one, and then may be they would occur almost daily. During the time I was in the hospital, Thelma had a sister that lived in Leary, and she visited her frequently. Also, I went to the hospital in 1925, and was treated down at Lake City two or three weeks. I had always believed that Thelma and Barnett were just acquainted; so along in 1938 I found out that they were more than acquainted, and I resented it, and I looked back in things that had happened before that, him coming over there, and not being hardly acquainted, with his sardines and things, it looked like he was making fun of me, and took everything in life away from me. I felt that I was being robbed of everything that meant anything to me. That morbid condition I would fight it off and work to get rid of it; it was all that was on my mind, and I could not sleep. It would sometimes disappear, and I would go for six months or a year; and if I thought of it, it would not be of any consequence at all. So along in December of last year, there was about four or five years that I didn't think of it. I was just as happy as any man could be, and then in December it got to worrying me, and I could not get rid of it. When I was at work it would bother me, and I could not sleep at night. I would lie awake all night, but I would always manage to get rid of that morbid sensation, and I would go ahead; and if the thoughts I had been having occurred to me, it would not make an impression; and at other times when it returned, I could not fight it off. I was about the most miserable human being that ever lived. It had been several years since I had felt that way, and in December I got to thinking about it, and it ran on up into this year; and so the day before Barnett was killed, the mayor there in Arlington told me to lay some piping, . . and I got some negroes to lay it off, and went up to Edison and borrowed a tapping machine and went into the main and tapped it and laid the pipe. I knocked off that night and the next morning, the 14th [of May]. I had been worrying about that for the last three or four days; and so Thelma and I had an argument, and I accused her of her and Barnett being intimate before we were married, and I felt like all of my unhappiness was caused by Barnett, and I just blowed my top, and the next thing I knew Sheriff Adams was down here at the jail, and he come in there and asked me if I wanted a cup of coffee, and I drank it and laid back down and went to sleep, and the next thing I knew I woke up the next morning in the Macon jail. It felt like a dream, and I could not believe it."

In the motion for new trial, excepting to charges to the jury relative to insanity, ground 4 complained of an instruction giving the language of the Code, § 26-303, as to lunatics or persons insane, with and without lucid intervals, and acts committed during or outside of such intervals of understanding. In a note to this ground the judge stated that this charge was the same as the language "read to the court by counsel for defendant in the beginning of the argument to the jury."

While counsel for the defendant do not abandon the general grounds or other special grounds, they state that they stress only grounds 5 to 8 inclusive. All of these relate to similar instructions, giving in charge the law of delusional insanity. In these grounds they contend that there was nothing in the evidence or in the defendant's statement to the jury on which to base such charges; that the only defense which he presented was general insanity, and that his mind was a blank at the time of the homicide; that although the judge correctly charged the law of general insanity with the "good and evil" test applicable thereto, he should have stopped there; and that the instructions as to an irresistible impulse by reason of "mental disease" or an overmastering of the will by a "delusion," commingled the principles of delusional insanity with general insanity, confused the jury, placed on the defendant a greater burden than that required by law in showing general insanity, and were prejudicial in causing the jury not to recommend mercy.

After charging as to the presumption of sanity, the test of sanity that a person "knows the distinction between good and evil," and the language of the Code, § 26-303, as to lunatics or insane persons, as above stated, the instructions to which exception was taken and those unexpected to, in consecutive order, were as follows:

"Generally, gentlemen, with regard to the question of sanity or insanity at the time of the alleged act, or an act alleged to be criminal, the true test of sanity or insanity is as follows: the insanity which renders the perpetrator of a particular act, which would ordinarily be criminal, incapable of committing a crime by its perpetration is such as to deprive him of the capacity to distinguish between right and wrong relative to such act. This, gentlemen, is a question of fact to be determined by you." To this there was no exception.

"If you believe the defendant committed the act charged against him in this bill of indictment, but that at the time of its commission he was mentally incapable of distinguishing between right and wrong, relative to such act, then you should acquit him. Likewise, if you have a reasonable doubt as to this, you should give the defendant the benefit of such doubt and acquit him." To this there was no exception.

"Likewise, gentlemen, a person may be sane as to everything else, and yet be insane as to a particular act, or thing; and if he is insane as to that act, and does not know that it is wrong — is not mentally capable of distinguishing between right and wrong as to that act, then he would not be legally responsible as to such act, and could not be legally convicted of a crime on account of the same." To this there was no exception.

"If you should believe that at the time of the alleged crime the mind of the defendant was diseased, and that by reason of such mental disease his will power was then impaired, and that by reason of such impairment he did not then have sufficient will power to restrain from committing the act, or that by reason of such mental infirmity he was irresistibly impelled to the commission of the act in question, and that the act was the product of such mental disease, but for which he would not have committed it, then he could not be held legally responsible for the act, and it would be your duty to acquit him." Ground 5 excepted to this instruction, with the contentions above stated.

"Criminal intent being an essential element in every crime, it is a question of fact, to be determined by the jury, whether such criminal intent was present in the mind of the defendant at the time of the alleged crime, whether the defendant was mentally capable of possessing such criminal intent, whether the defendant acted with such intent at the time of the alleged act, or was mentally capable of distinguishing between right and wrong with reference to that act." To this there was no exception.

"If you find the defendant committed the act charged against him in the bill of indictment, and in the manner therein charged, but that at the time of its commission he was not mentally capable of distinguishing between right and wrong with reference to such act, under the instructions given you, then you should acquit him. Likewise, if you have a reasonable doubt as to this, you would give him the benefit of such doubt and acquit him." Ground 9 excepted to this instruction as "contradictory, misleading, and confusing" to the jury, "in that the words ``and in the manner charged therein' are wholly contradictory to the remaining portion of the quoted charge with reference to mental ability and capability, as the ``manner' referred to was with malice aforethought — something the defendant could not have if he were mentally incapable of distinguishing between right and wrong with reference to the particular act."

"If on the contrary, gentlemen, you should believe that the defendant committed the act charged against him in this bill of indictment, in the manner alleged, and that at the time of its commission he was not mentally incapable of distinguishing between right and wrong with reference to such act, but that at the time of the commission of the act he was mentally capable of distinguishing between right and wrong with reference to such act, and was not irresistibly impelled to its commission by reason of any mental disease, he would not be excusable for it on the ground of mental disease or insanity." Ground 6 excepted to this instruction, with contentions as to the law of delusional insanity and general insanity as above indicated.

"The rule of law in force in this State, which relieves one from criminal responsibility for the commission of an unlawful act on account of mental disease is: if a man has reason sufficient to distinguish between right and wrong in relation to a particular act about to be committed, he is criminally responsible. An exception to this rule is, where a man has reason sufficient to distinguish between right and wrong as to a particular act about to be committed, yet, in consequence of some delusion, his will is overmastered, and there is no criminal intention, provided that the act itself is connected with the particular delusion under which the prisoner is laboring." In ground 7 exception was taken to this instruction, with contentions as above indicated.

"This, gentlemen, is a question of fact to be determined by you. If you should believe that the defendant had reason sufficient to distinguish between right and wrong relative to the particular act charged against him in the indictment, and that he actually committed the act, but that at the time of its commission, in consequence of some delusion with which the act was connected, his will was overmastered, and there was no criminal intention on the part of the defendant with reference to such act, then you should acquit him." Ground 8 excepted to this instruction, with contentions as stated.

Following these instructions, the court charged as to the law of murder and malice, the presumption of the law as to a person being "of sound mind until the contrary appears," the burden on the State to prove all material allegations in the indictment, the duty of the jury to acquit the defendant in case of a reasonable doubt as to his guilt, and the forms of the verdict, with the right of the jury, with or without reason, arbitrarily to recommend the defendant to mercy, as they saw fit. While the grounds of the motion for new trial, covered by divisions 1 and 2 of the syllabus, were not abandoned, the entire stress of the argument, both oral and by brief, has been made upon the alleged error of the judge in charging on the law of delusional insanity. This contention was made and argued both in the original brief and more especially and much more elaborately on motion for rehearing. The contentions on this phase of the case may be stated as follows: (a) That the instant case is controlled by what was held inCaison v. State, 171 Ga. 1 (4), 8 (154 S.E. 337), where this court, in a case which did not involve the defense of delusional insanity, held that it was error to charge on that defense in language identical with the charge in the instant case, in that it tended to mislead and confuse the jury. (b) That in order to constitute a good defense with respect to delusional insanity, the act itself must have been connected with such a delusion. (c) That in order for such a defense to be good, the delusion must have related to a fact which, if true, would have justified the act. And (d) That the defense of delusional insanity was not in fact raised by the defendant's statement to the jury, for the reason that the belief under which the defendant acted was not an unfounded belief, springing spontaneously from a diseased mind, without any foundation of fact. These contentions, especially the first and last, were elaborated and argued at length, with much authority cited on motion for rehearing.

(a) The original opinion treated the charge in the Caison case and the charge in the instant case as substantially identical, and dealt with it on the basis that the charges were identical. On motion for rehearing much stress is laid upon the fact that they were not only substantially identical, but actually identical. The two charges have been again compared, and as originally stated, we find that, while not Verbatim etliteratim absolutely the same, they are "substantially" so, and vary only in some fifteen or more small particulars of no materiality; and therefore we treat the charges now, as we did then, just as if they were absolutely identical in all respects.

Taking up the four contentions outlined in the order stated, we deal first with the ruling made in the Caison case. In the original opinion this court differentiated that case from the instant case, on the theory that, whereas here the defense of delusional insanity was made by the defendant's statement to the jury, the reasoning and the ruling in the Caison decision, where such a defense was not made or involved, were inapplicable. While the instant case was pending, the case of Smith v.State, 196 Ga. 595 (27 S.E.2d 369), reached this court. In the Smith case, as in the Caison case, the defense of delusional insanity was not involved; and although the charges in the Caison case and in the Smith case were not substantially identical, as in the instant case, it was thought proper to defer the decision in the instant case in order that this case and the Smith case might be considered contemporaneously.

It is the general rule that a judge is not required, without a request, to charge on a defense made only by the defendant's statement, but that it is proper to so charge; and where either a request based on the statement is made, or such a defense is made by the evidence, a charge upon such a defense becomes obligatory.Leary v. State, 187 Ga. 445 (200 S.E. 779); Shafer v.State, 191 Ga. 722 (3) (13 S.E.2d 798), and cit.; Irwin v. State, 194 Ga. 690, 698 (4) (22 S.E.2d 499). It is also the general rule that instructions, even though abstractly correct, should not be given unless authorized by the evidence, or in criminal cases by the evidence or by the statement of the defendant; and when such an unauthorized instruction is given, if it should be confusing or misleading to the jury, a new trial will be required. Davis v. State, 190 Ga. 100 (4) (8 S.E.2d 394), and cit.

The rules governing excusability for a homicide on account of general insanity and on account of delusional insanity are separate and distinct. Where the defense relates to general insanity, the rule is that if a man has reason sufficient to distinguish between right and wrong, he is responsible; but the rule as to delusional insanity constitutes an exception to this general rule; and where general insanity and delusional insanity are both relied on, or where delusional insanity alone is relied on, the rule is, that even if one has reason sufficient to distinguish between right and wrong, yet if in consequence of some delusion the will is overmastered, and there is no criminal intent, he is not responsible, provided that the act itself is connected with the peculiar delusion under which the defendant is laboring. Rozier v. State, 185 Ga. 317 (2), 320 (195 S.E. 172).

Where the defense of delusional insanity is not involved, if the charge to the jury on delusional insanity be given not plainly and distinctly as a separate and independent defense, constituting an exception to the rule governing general insanity, but "be given as a part of an instruction upon insanity generally," without clear differentiation, such a commingling of an instruction on delusional insanity with an otherwise correct charge on general insanity may tend to confuse the jury, especially where the defense of delusional insanity is not involved, since in such a case, where the defense of delusional insanity is in no wise involved, such a commingling of the two somewhat analogous defenses would require the jury to apply the charge to the evidence dealing only with the defense of general insanity, and thus impose upon the defendant an additional and unauthorized burden in sustaining that defense.

Where, however, both the defense of general insanity and the defense of delusional insanity are involved, it is not only the right but the duty of the judge to give to the defendant by his charge the benefit of both defenses; and a correct charge upon both defenses, as actually made, could not be misleading or confusing, nor does it impose upon the defendant any additional burden in making out either defense relied on, but it merely gives him the benefit of instructions applicable to each.

In the Caison case, where, as stated, the defense related solely to general insanity, and the defense of delusional insanity was in no wise involved, the court first charged correctly on the defense of general insanity, then and in immediate connection instructed the jury as follows: "If on the contrary, gentlemen, you should believe the defendant committed the act charged against him in this bill of indictment, and in the manner therein alleged, and that at the time of its commission he was not mentally incapable of distinguishing between right and wrong with reference to such act, but at the time of the commission of said act was mentally capable of distinguishing between right and wrong with reference to such act, and was not irresistibly impelled to its commission by reason of any mental disease, he would not be excusable for the same on the ground of mental disease or insanity." This latter charge, while immediately following the law of general insanity, related solely to the defense of delusional insanity which was in no wise involved, and, while sound and not contradictory if standing alone, might possibly have been confusing to one unlearned in the law as not being clearly differentiated from the defense actually made. But this latter excerpt, complained of in the Caison decision, did not stand alone; but immediately following it the court elaborated this charge on delusional insanity by explaining exactly wherein it differed from the defense of general insanity, and plainly stated that such a defense constituted "an exception" to the rule on general insanity. This elaboration, immediately following the excerpt just quoted, was as follows: "The rule of law of force in this State, which relieves one from criminal responsibility for the commission of an unlawful act on account of mental disease is: If a man has reason sufficient to distinguish between right and wrong in relation to a particular act about to be committed, he is criminally responsible. An exception to this rule is, where a man has reason sufficient to distinguish between right and wrong as to a particular act about to be committed, yet, in consequence of some delusion, his will is overmastered, and there is no criminal intention, provided, that the act itself is connected with the particular delusion under which the defendant is laboring." Accordingly, it is our opinion that the plain and specific clarification made by the immediate context in theCaison case would prevent any misconception or commingling in the minds of the jury of the two rules, so that the Caison case must be disapproved, as was this day decided in Smith v.State, supra, in which the four-judge ruling in the Caison case is in terms disapproved. This is true even though there was no evidence in the Caison case raising the defense of delusional insanity. The charge on delusional insanity being thus explained as a separate and independent defense, constituting an "exception" to the general rule governing general insanity, the charge on delusional insanity even in the Caison case, where delusional insanity was not involved, merely gave to the defendant a defense to which he was not entitled, and as to which he could not complain. A fortiori, in the instant case, where the same clarifying explanation was made, and where, as will be shown, the defendant relied not only on general insanity but delusional insanity as well, the ruling in the Caison case, even if sound, would not afford ground for reversal.

In Davis v. State, 190 Ga. 100 (supra), a full-bench decision, where it was held that the charge on delusional insanity had properly been given, an examination of the record shows that the charge there given, with the same clarifying explanation in the same connection with the instruction complained of, was, as in the instant case, substantially identical with the charge in the Caison case.

(b) With regard to the second contention by counsel for the defendant, that in order to constitute a good defense with respect to delusional insanity the act itself must have been connected with such a delusion, no elaboration seems necessary, since it manifestly appears from a portion of the defendant's statement to the jury that he not only referred to such a belief, but urged that his act was brought about by what he himself termed a "morbid sensation" under which be claimed he was laboring. The defendant introduced no evidence, but it is apparent that his statement was given, not in justification of the homicide, but to convince the jury that it was caused by a diseased mind brought about by accidents, shell-shock, and a surgical operation for "double mastoids," which did not properly heal and later gave trouble; and by what he designated as a "morbid condition" following the sardine and onion incident, related in the statement of facts, twenty years before the homicide, which condition he could sometimes shake off and sometimes could not, until such "morbid condition" caused him to "blow his top" at the time of the homicide.

(c) The defendant contends, as a third reason why the charge on delusional insanity was erroneous, even if delusional insanity was involved, that under the rule recognized in this State (but which is in conflict with many of the adjudications in other jurisdictions) such a defense is good only when, if the delusion were true, it would have justified the killing. See Barker v.State, 188 Ga. 332 (4 S.E.2d 31), and cit.; Mars v.State, 163 Ga. 43 (4), 51, 54, 60 (135 S.E. 410); Flanagan v. State, 103 Ga. 619, 623 (30 S.E. 550); Roberts v.State, 3 Ga. 310 (3), 326; King v. Hadley, 27 Howell's State Trials, 1282, 1314, 1354. The defendant, however, cannot complain that such a ground of defense was charged, since the instruction, even in such event, merely gave to him the benefit of an additional defense to which he might not have been entitled. Davis v. State, 190 Ga. 100 (4, a) (8 S.E.2d 394). It would be a different situation were the defendant complaining that he was not given the benefit of such a defense. In that event, the decisions cited might serve as authority to nullify such a ground of exception based on a failure to charge; whereas giving to the defendant the benefit of what might not have been a good defense is not a fault of which he can complain.

(d) The fourth contention, on which authorities have been cited and which is especially stressed on motion for rehearing, is that the defense of delusional insanity was not in fact raised by the defendant's statement to the jury, for the reason that his belief was not an unfounded one, springing spontaneously from a diseased mind, without any foundation of fact. Under the ruling in the Smith case, supra, and the preceding ruling in this case, disapproving the ruling in the Caison case that the charge on delusion insanity in that case, which did not involve delusional insanity, was erroneous and confusing and therefore reversible error, it really becomes unnecessary to determine whether or not the defense of delusional insanity was raised by the defendant in the instant case. But since the opinion in this case as originally written merely distinguished, without disapproving, the Caison decision on the ground that delusional insanity had not there been raised, while it had been raised in this case, it is nevertheless thought proper to consider also this question as dealt with and elaborated in the able and learned brief of counsel, filed on motion for rehearing. It is manifest that if the charge, as in the Caison case, was not erroneous even if delusional insanity was not involved, it makes no difference whether the contention of counsel is right or wrong as to whether this defense was actually made. But even if it were to be considered that the Caison decision was right, this case would still be distinguishable if, contrary to the Caison case, delusional insanity was in fact involved in this case. As an additional reason for our decision, we therefore will determine whether the defendant by his statement to the jury did in fact invoke the defense of delusional insanity. Counsel in their brief on motion for rehearing cite a number of will cases decided by this court, in which delusional insanity was defined: Bohler v.Hicks, 120 Ga. 800 (2), 804 (48 S.E. 306); Dibble v. Currier,142 Ga. 855, 856 (83 S.E. 949, Ann. Cas. 1916C, 1); Dyar v.Dyar, 161 Ga. 615, 628 (131 S.E. 535); Stephens v.Bonner, 174 Ga. 128 (6) (162 S.E. 383).

In Bohler v. Hicks, in which one Justice did not participate, the court discussed a number of other Georgia cases, and used this language: "The delusion must spring up spontaneously in the mind of the person, and not be the result of evidence of any kind." The court further said: "The true test between a delusion, used in the sense of a mistake of fact, and a delusion which is the off-spring of a deranged mind is that the latter springs spontaneously from disordered intellect, while the former is the result of an erroneous conclusion based either upon a mistake of fact or an illogical deduction drawn from facts as they really exist. The subject-matter of an insane delusion must have no foundation of fact and must spring from a diseased condition of the intellect." In the Bohler case, it was decided on demurrer that no insane delusion on the part of a husband, who had disinherited his wife, was alleged in a mere averment as to the testator's having executed the will "under the delusion that acts of kindness on her part to a named person were prompted by or the result of improper intimacy between [the wife and such person], whereas said delusion was without any foundation in fact." There, as pointed out as the basis of the decision, it was in no wise shown what the "acts of kindness" were, or that they were not such as might reasonably have given rise to such a conception in a normal mind.

We cannot think that our court, in saying that delusional insanity must spring spontaneously from a disordered intellect without any foundation of fact, meant that the delusion must have been based on nothing whatsoever. We cannot believe that the court intended to challenge the axiomatic truth that there is no effect without a cause. Rather do we think that the court manifestly intended merely to convey the idea that delusional insanity springs from a disordered mind without any rational cause. This we think is clearly manifested by these very decisions. For example, in Dibble v. Currier, supra, while the definition of delusional insanity as given in the Bohler case was quoted with approval, it was nevertheless held in theDibble case that the allegations were sufficient, as against demurrer, to set up the defense of delusional insanity; these averments being that the testatrix, after being deserted by her husband and obtaining a divorce, brooded over these facts and the fact that her heirs at law would not comply with her request to kill her former husband, and that because they would not do so she became imbued with the hallucination that they were not really related to her, and therefore were not entitled to her affection as kinsmen. In that case, the delusion did not spring out of airy nothingness; nor did the belief so arise in the instant case, where the defendant in his statement to the jury claimed that he became obsessed with the idea of his wife's previous intimacy with the deceased by reason of the fact that the deceased appeared with others at the defendant's wedding, about twenty years before the homicide, and there presented to the bride sardines and onions; and that he brooded over this fact for about ten years, until, as he told the sheriff, he made his first attempt to kill the deceased. We think in this case, as was held in the Dibble case, that the judge did not err, so far as the defendant might complain, in submitting his contention to the jury.

In like manner, this court held in Dyar v. Dyar, supra, that delusional insanity was involved, where the only delusion alleged was that the testator became obsessed with the idea that any daughter of his who married thereby made a choice between him and the man she married, forever cut off any relationship with the testator, and was no longer his daughter. There, as in theDibble case, the delusion was not based upon mere spontaneous fancy, but was the irrational figment evolved by a disordered brain. And in Stephens v. Bonner, supra, the testator became imbued with the idea that his daughter was not his, because she refused to obey his command to desert her husband; and, based only upon this irrational assumption, the court held that the question of delusional insanity became an issue of fact for the jury.

Much case and text-book authority sustains the construction as to what constitutes delusional insanity as here enunciated. Riggsv. Home Missionary Society, 35 Hun (N. Y.) 656, 658; In re Russell's Estate, 189 Cal. 759 (210 P. 249, 254); Medill v. Snyder, 61 Kan. 15 (58 P. 962, 78 Am. St. R. 307, 313); Johnsonv. Johnson, 105 Md. 81 (65 A. 918, 919, 920, 121 Am. St. R. 570); In re Forman's Will, 54 Barb. (N. Y.), 274, 289; In re Jenkins' Will, 39 Misc. 618 (80 N.Y. Supp. 664, 665); 1 Clevinger's Medical Jurisprudence of Insanity, 16; 1 Page on Wills, 294, §§ 143, 144, and cit.; Buswell on Law of Insanity, 17, 18, §§ 13, 14; 28 Am.Jur. 657, § 3.

While it is true that the defendant in his statement to the jury made the general assertion that, about four years before the homicide (but long after his first attempt to kill the deceased on account of the sardine and onion incident), "I found out they were more than acquainted, and I resented it, and I looked back on things that had happened before that, his coming over there and not being hardly acquainted, with his sardines and things, it looked like he was making fun of me, and took everything in life away from me," — it thus appears that, even according to this portion of his statement, the sardine and onion incident was the salient factor in his mind. Immediately after the statement quoted, he continued as follows: "I felt that I was being robbed of everything that meant anything to me. That morbid condition I would fight it off and work to get rid of it; it was all that was on my mind, and I could not sleep. It would sometimes disappear, and I would go for six months or a year; and if I thought of it, it would not be of any consequence at all. So along in December of last year, there was about four or five years that I didn't think of it, I was just as happy as any man could be; and then in December it got to worrying me, and I could not get rid of it. When I was at work it would bother me, and I could not sleep at night. I would lie awake all night, but I would always manage to get rid of that morbid sensation, and I would go ahead; and if the thoughts I had been having occurred to me, it would not make an impression, and at other times when it returned I could not fight it off. I was about the most miserable human being that ever lived. It had been several years since I had felt that way, and in December I got to thinking about it, and it ran on up into this year; and so the day before Barnett was killed, the mayor there in Arlington told me to lay some piping, . . and I got some negroes to lay it off, and went up to Edison and borrowed a tapping machine and went into the main and tapped it and laid the pipe. I knocked off that night, and the next morning, the 14th [of May], I had been worrying about that for the last three or four days; and so Thelma and I had an argument, and I accused her of her and Barnett being intimate before we were married, and I felt like all my unhappiness was caused by Barnett, and I just blowed my top." We can find in the record not the slightest scintilla of support for the suggestion made by counsel in their brief that, after the defendant just before the homicide had accused his wife of being intimate with the deceased before the marriage, "it is certainly inferable, to say the very least, that there was then an admission of that intimacy." But even if the portion of the defendant's statement just quoted should be taken to mean more than it says, it was the province of the jury, so far as his statement was concerned, to believe or reject any portion as they saw fit, without any effort to reconcile the same.

Accordingly, we think that the court was seeking to jealously protect the rights of the defendant in accordance with the theory of defense presented by him in his statement; that in giving him the benefit of the charge on delusional insanity no harm or injury was done; and that, under any conceivable construction, the most that can be said is that he received the benefit of a defense which he invoked, but to which he might possibly not have been entitled.

Judgment affirmed. All the Justice concur, except Bell, C.J., disqualified.