1. The judge, having instructed the jury in effect that where the defense of insanity is involved, the burden is on the defendant to establish such defense by a preponderance of the evidence, and having defined preponderance of evidence substantially in the language of the Code, did not err in failing, without request, to charge further that on the issue of insanity circumstantial evidence alone might be sufficient on which to base a finding that the defendant was insane at the time of the act charged against her.

2. The defendant having filed only a general plea of not guilty, the court did not err in refusing to give the following requested instruction; "If you should find the defendant not guilty because you believe she was insane at the time of the commission of the homicide, you would have a right to so state in your verdict; and in the event the verdict should be based on such ground and this is shown in the verdict itself, the defendant would then be committed to the State sanitarium, there to remain until discharged in the manner prescribed by law." The Code, § 27-1503, on which the request was predicated, provides no procedure or authority under which a person acquitted on the ground of insanity may be committed to the State hospital, and is therefore ineffectual as a provision for continued detention for any purpose is such case.

3. The evidence did not, as a matter of law, demand a finding in favor of the defense of insanity. The evidence supported the verdict, and the judge did not err in refusing a new trial.

No. 14394. FEBRUARY 9, 1943.

Mrs. Minnie Lee Griffin was indicted for the offense of murder in the killing of Mrs. Mildred Williams on November 21, 1941, by "striking, beating, and wounding her with some blunt instrument which is to the grand jurors unknown." The defendant was convicted of the offense charged, without recommendation, and was sentenced to be electrocuted. Her motion for new trial, consisting of the general grounds and two special grounds added by amendment, was overruled, and she excepted. She did not deny the killing, and insanity at the time of the homicide was the sole defense urged. This defense was made under the general plea of not guilty, and no plea of insanity at the time of the trial was filed.

The State introduced circumstantial evidence and a signed confession, together with evidence of an oral confession. The defendant introduced testimony by several witnesses, tending to show delusional insanity, one of the witnesses being a physician, who qualified as an expert. One of the witnesses for the State, a physician, testified that in his opinion the defendant was sane. On cross-examination he testified that he had never declared himself a mental expert, but that he had experience in dealing with mental diseases.

The defendant was about fifty years of age at the time of the homicide. She was married, and was the mother of several grown and married children. Mrs. Williams was about twenty-four years of age. She and her husband had been married about six years. They had no children, and for two different periods they had lived in a room in the home of Mrs. Griffin. They moved from her home the second time about the middle of May, 1941, before the death of Mrs. Williams in November of that year.

As to the circumstances of the killing, the evidence tended to show substantially the following facts: On November 21, 1941, Mrs. Williams disappeared from her home, and her whereabouts continued unknown until her dead and partly decomposed body was discovered in the basement of Mrs. Griffin's home in March, 1942. The discovery was made by a negro boy who had been employed by one of Mrs. Griffin's sons to clean out the basement after heavy rains had caused an accumulation of water therein. The body had been concealed in a trunk, and the trunk had been covered with ashes. During the entire interim Mrs. Griffin had lived in the same home, and, so far as shown, there was no change in her activities or demeanor. The evidence for the defendant showed that for some time before the killing Mrs. Griffin had believed that Mrs. Williams was trying to come between a son-in-law of the defendant and his wife. She had written anonymous letters of warning to Mrs. Williams, some of them containing articles clipped from newspapers and dealing with domestic affairs. On the margin of one of these clippings was written the name of the defendant's son-in-law, with the statement that he was a married man. It was shown also that the defendant would frequently sit for hours in a back room of her home and watch the apartment in which Mrs. Williams and her husband lived; and when questioned by her children as to what she was doing, she would sometimes remark that she was writing letters, although according to the testimony she had been sitting in a dark room without pencil or paper. It appeared from the evidence that Mrs. Williams had suspected that Mrs. Griffin was the author of the anonymous letters. On one occasion she and her husband called at the Griffin home to discuss the matter with Mrs. Griffin and her son-in-law and his wife. Mrs. Griffin denied that she had written the letters, and showed some indication that she was offended by the inquiry. It appeared from her written confession that on the morning of the homicide she called the deceased on the telephone and asked how she was feeling. About an hour later the deceased came to her home, and the following happened:

"When she came in, I was sweeping in the living-room, and I asked her how she was feeling.

"She told me that she was sorry about the misunderstanding about her going with . . my son-in-law.

"I asked her if she really had been going with him, and that if she had, she was breaking up my daughter's home.

"She jumped up, telling me that it was none of my business if she was going with him, and that if I ever mentioned that to her again she would brain me.

"I grabbed the broom and hit her over the head. In a few minutes she got up and ran through the bedroom to the basement. She told me not to follow her into the basement.

"I followed her into the basement and picked up a heavy object and hit her . . on the head several times.

"The object was a piece of wood, and not iron.

"After knocking her down, I lost my mind, and do not remember how many times I hit her.

"After I had knocked her down, I thought I would call the police and give up, but I couldn't do it, and then looked around for a place to put the body. I looked around for a place to put the body, and saw an old trunk.

"I then went over to my son's work-bench and got a piece of rope, but I can not remember tying up Mildred's body. I drug the trunk up towards the northeast corner of the basement where Mildred's body was lying, and put the body into the trunk.

"After putting the body into the trunk. I remember spreading a coat over it. I then spread paper over the coat and then I saw that the lid of the trunk would not close, and then poured ashes over the paper. I then closed the lid of the trunk as far as I could, and then spread ashes all over the trunk. I then sat down on the basement for about an hour before I was able to leave.

"When I left the basement, I went upstairs and lay down for about an hour, and then got up and fixed supper.

"My youngest son . . came in for supper first, but I did not eat anything. I did not say anything to any one about what had happened.

"The coat that I spread over her body, a grey coat with a black velvet collar, was the one that she had on when she came to my house."

The evidence for the defendant also tended to show that there was no foundation for her suspicion regarding the relationship between her son-in-law and the deceased. Several witnesses for the State testified that they had known the defendant for several years, and had not noticed any evidence of insanity.

BELL, Presiding Justice. (After stating the foregoing facts.)

1. The judge instructed the jury that where the issue of insanity is involved, the burden is on the defendant to show, by a preponderance of the evidence, that at the time of the alleged commission of the act charged against her she was insane. He next defined preponderance of evidence substantially in the language of the Code. In the first special ground of the motion for new trial the movant contended that after giving the "foregoing charge," and in connection therewith, the court should have further instructed the jury to the effect that, on the issue of insanity, circumstantial evidence alone might be sufficient upon which to base a finding that the defendant was insane at the time of the act charged against her.

There is no merit in this ground. It is not insisted that the instructions given were incorrect or inapplicable. "A correct instruction to the jury is not subject to exception for failure, in absence of an appropriate request, to embody an additional definitive or explanatory charge." Sherrer v. Holliday, 165 Ga. 413 (2) ( 141 S.E. 67); Scott v. Wimberly, 188 Ga. 148 ( 3 S.E.2d 71). Furthermore, no request was made; and in the absence of such, the omission to charge that circumstantial evidence alone might be sufficient to show insanity was not erroneous. See, in this connection, Cowart v. Strickland, 149 Ga. 397 (4) ( 100 S.E. 447, 7 A.L.R. 1110). It has been held many times that where a conviction depends solely on circumstantial evidence, the judge should, even without request, charge the rule on circumstantial evidence as stated in the Code, § 38-109; but that question is not involved in the instant case, and it is not so contended. The rule to be applied is that where the judge charges correctly the general principles applicable to the issues, if more specific instructions are desired they should be requested. Ford v. Ford, 146 Ga. 164 (3) ( 91 S.E. 42); Rountree v. Neely, 147 Ga. 435 ( 94 S.E. 542); Betts v. State, 157 Ga. 844, 846 ( 122 S.E. 551); Maner v. State, 181 Ga. 254 (5) ( 181 S.E. 856); Roberson v. State, 190 Ga. 661 (2), 662 ( 10 S.E.2d 173).

We do not mean to say that the particular charge should have been given if it had been requested, for there may be other reasons why it was properly omitted. Compare Long v. State, 12 Ga. 293 (16), 323; Tanner v. State, 161 Ga. 193, 198 ( 130 S.E. 64); Trustees of Jesse Parker Williams Hospital v. Nisbet, 191 Ga. 821 (7), 847 ( 14 S.E.2d 64); Lubeck v. Dotson, 192 Ga. 258 (3), 263 ( 15 S.E.2d 205); Stiles v. Shedden, 2 Ga. App. 317 ( 58 S.E. 515). It is sufficient to say, and what we rule is, the omission was not error in the absence of a request.

2. The defense of insanity was urged under the general plea of not guilty, and no special plea of insanity at the time of the trial was filed. In the second special ground of the motion for new trial error was assigned on the refusal of the court to give the following charge, as duly requested in writing: "If you find the defendant not guilty because you believe she was insane at the time of the commission of the homicide, you would have a right to so state in your verdict; and in the event the verdict should be based on such ground and this is shown in the verdict itself, the defendant would then be committed to the State sanitarium, there to remain until discharged in manner prescribed by law." It is contended that under the evidence the jury would have been authorized to find the defendant not guilty, on the ground that she was insane at the time of the homicide, and that in such case it would likewise have been proper, under the law, for them to show in their verdict that it was based on such finding of insanity. For these reasons it is insisted that the judge should have charged the jury that they had the right to return such a verdict, and that the defendant in that event would be committed to the State sanitarium, there to remain until discharged in the manner prescribed by law. It is further insisted that in the absence of such instruction the jury would necessarily realize that a verdict of not guilty would have the effect of giving the defendant complete freedom, whereas they might have found her not guilty on the ground of insanity if they had been informed that instead of gaining absolute freedom she would be committed to the State sanitarium. It is therefore insisted that the failure of the court to give the requested instruction deprived the defendant of a legal principle to which she was entitled, and was necessarily harmful.

The contention thus made was based upon a provision which is contained in the Code, § 27-1503, and which may be quoted in its order with two other sections, as follows:

"Whenever the plea of insanity is filed, it shall be the duty of the court to cause the issue on that plea to be first tried by a special jury, and if found to be true, the court shall order the defendant to be delivered to the superintendent of the Milledgeville State Hospital, there to remain until discharged in the manner prescribed by law." § 27-1502.

"When a person who has been acquitted of a capital crime, on the ground of insanity, is committed to the Milledgeville State Hospital, he shall not be discharged therefrom, except by special act of the legislature. If the crime is not capital, he shall be discharged by warrant or order from the Governor. If sentence is suspended on the ground of insanity, upon restoration to sanity the superintendent shall certify the fact to the presiding judge of the court where he was convicted." § 27-1503.

"No lunatic or person afflicted with insanity shall be tried, or put upon his trial, for any offense, during the time he is afflicted with such lunacy or insanity, which shall be tried in the manner hereinbefore pointed out where the plea of insanity at the time of trial is filed, and, on being found true, the prisoner shall be disposed of in like manner." § 27-1504.

All of these sections appear as a part of the Code relating to criminal procedure.

It is only the first sentence of § 27-1503 that is here invoked, and we are not concerned with the remainder of it in this case. The provision relied on was not contained in any Penal Code or shown as a part of any of the criminal law of this State until the Code of 1895, in the penal division of which it was inserted as § 952. Apparently it was based on no statute of the General Assembly, but was inserted by the codifiers. A similar provision did appear, however, in the Code of 1863, in the article relating to the management of the asylum and discharge of patients; and the same is true of each of the subsequent Codes, including that of 1933. Code of 1863, § 1314; 1868, § 1395; 1873, § 1374; 1882, § 1374; Civil 1895, § 1451; Civil 1910, § 1614; 1933, § 35-240. We find no statute from which the provision was first codified as a part of the Code of 1863, and even there it appears to have been inserted by the codifiers. Brown v. Brown, 184 Ga. 827, 830 ( 193 S.E. 754).

The provision as it thus appeared as a part of the law relating to the asylum, now the State Hospital, and not as any part of the law relating to criminal procedure, was apparently based on an assumption by the codifiers, and in turn by the General Assembly, that some such rule was in force as a part of the criminal law of this State. No such rule was in existence, however, and the mere assumption that it existed did not bring it into being. Boykin v. Martocello, 194 Ga. 867, 870 ( 22 S.E.2d 790).

In Long v. State, 38 Ga. 491 (7), 507, decided in 1868, it was shown that the provisions now contained in the Code, § 27-1502, supra, were designed to prevent a trial on the merits while the accused is insane, that the plea must allege insanity at the time of the trial, and that in the absence of such a plea the defendant is not entitled to the special trial provided for in that section. In reaching this conclusion the court also considered what is now § 27-1504, supra, and stated in effect that if no such plea is filed, the only issue as to insanity will be whether the defendant was insane at the commission of the act, and, if so, the verdict shall be not guilty. In the opinion, it was said:

"It seems to us both absurd and cruel to send a sane man to the lunatic asylum, and we can not think such was the intent of the law makers. There may perhaps be a propriety in so confining one subject to fits of insanity. Such a person may fairly be considered dangerous to the community; but that one perfectly sane at the time of the trial, free from the insanity which has once made him irresponsible for his acts, should be condemned by the law to live among madmen, is to us so preposterous that we can not think such was the intention of the legislature."

In Danforth v. State, 75 Ga. 614 (3) (58 Am. R. 480), decided in 1886, it was held that under the law of this State insanity as a defense must be urged under the general plea of not guilty, and, if satisfactorily established, would finally acquit the defendant and discharge him. In the opinion it was stated that the section of the Code relating to the special plea applied only to mental derangement at the time of the trial, and that in no case could this special defense be made without an averment that such mental disease was in existence at that time. The court referred to the practice in England, and suggested need of legislation on the subject in this State. It may be that what is now § 27-1503, was placed in the Penal Code of 1895, § 952, in response to this suggestion. The section was not simply transposed from a different part of the Code, but was a substantial repetition or duplication, since the similar provision was allowed to remain in the Civil Code, and has continued to appear in the subsequent Codes, as shown above. We do not question that a change in the law might be effectuated in this manner; for it has been held more than once in this State that a mere transposition of a section of the Code may result in changing the law. Sheffield v. Chancy, 138 Ga. 677 ( 75 S.E. 1112); Central of Georgia Railway Co. v. Wright, 165 Ga. 631 (3) ( 142 S.E. 292), affirming 36 Ga. App. 386 ( 137 S.E. 95).

While it does not appear that this court has expressly construed section 27-1503, or determined what change, if any, was made in the law by adopting it as a part of the Penal Code of 1895, yet in 1911, after the adoption of that Code, it was held that the defense of insanity at the time of the alleged offense must be made out under the general plea of not guilty, and, if satisfactorily made out, would finally acquit the defendant. Alford v. State, 137 Ga. 458 ( 73 S.E. 375). On the general subject, see Anderson v. State, 42 Ga. 9 (2); Carr v. State, 96 Ga. 284 ( 22 S.E. 570); Baughn v. State, 100 Ga. 554 ( 28 S.E. 68, 38 L.R.A. 577). For present purposes, however, we assume that the General Assembly did intend to change the law in some respect by annexing the stated provision to the existing law on criminal procedure, as in the Code of 1895; but even if such was the case, we are obliged to hold that no actual change was effectuated, for the reason that there was no sufficient expression of intention on the part of the lawmaking body. We have again a mere assumption, without a word of enactment as related to trial. No procedure was provided whereby a jury might express their finding in case they should acquit the accused on the ground of insanity, and no authority whatever was conferred upon the court to detain the accused for any purpose after such acquittal. It was then and had for a long time been the law of this State, that on the trial of all criminal cases the jury should give a general verdict of guilty or not guilty (Code of 1863, § 4532; 1933, § 27-2301), and no addition to this rule was expressed or implied through the action of the General Assembly to which reference has just been made.

Section 27-1503 must therefore be held ineffectual as a provision for continued detention of one by whom, as in this case, no plea of insanity at the time of the trial was filed.

For the proposition that a law may not rest solely in the minds of the lawmakers, but must be made articulate in some legislative act, see Walden v. Whigham, 120 Ga. 646 ( 48 S.E. 159); Cook v. State, 137 Ga. 486 (3) ( 73 S.E. 672); Pickering v. Campbell, 146 Ga. 636 ( 92 S.E. 74); Green v. State Highway Board, 172 Ga. 618 ( 158 S.E. 329); Winslett v. Case-Fowler Lumber Co., 173 Ga. 539 ( 160 S.E. 384); Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 707 ( 10 S.E.2d 375); 59 C. J. 601-605, §§ 160-161. It follows that the requested charge did not contain a correct statement of the law; and for this reason, regardless of others that have been urged, the judge properly refused to give such instruction to the jury.

3. We have carefully examined the evidence as to insanity, and can not say as a matter of law that the finding of the jury against such defense was unauthorized. The evidence supported the verdict, and the court did not err in refusing a new trial.

Judgment affirmed. All the Justices concur.