— On Nоvember 10, 1923, in Grays Harbor county, Guido Grossi shot and killed one Giuseppe Tolomei. He was charged with murder in the first degree, to which charge he entered a plea of not guilty by reason of insanity. On a trial before a jury, he was convicted of the crime and sentenced to be hanged. From the judgment of conviction he aрpealed to this court, wherein the judgment was affirmed.
State v. Grossi,
“That Guido Grossi be and he hereby is remanded tо the custody of said Clarence E. Long, as Superintendent of said Penitentiary to safely keep and hold said Guido Grossi until such time as said Guido Grossi shall have become sane or until such time as the Superior court of Grаys Harbor County, Washington, shall otherwise order, and without prejudice to a rehearing in any court of comрetent jurisdiction of the question of the present sanity or insamty of said Guido Grossi.”
The cause is before us on the appeal of the warden. It is Ms contention, made in Ms behalf by the Attorney General, that the superior court of Walla Walla county was without jurisdiction over the subject-matter of the inquiry, and hence its order is a nullity. But, notwithstanding the very ablе argument of the Attorney General to the contrary, we cannot conclude that it would be of any avail to determine the question. The question is in a sense moot. The warden has obeyed the order as if it were a valid order. The timе fixed for carrying into effect the execution of the death sentence has passed, and before it can be carried into execution another order to that effect must be obtained from the court pronouncing the sentence. Bern. Comp. Stat., § 2222. It is apparent, therefore, that the subsequent proсedure on the part of the state must be the same whether the order be affirmed or be reversed; the stаte must, in either event, apply to the court having *136 authority to issue a warrant of execution for such an оrder.
It may be proper here to state that we cannot share in the fears of the Attorney General that the order of the superior court of Walla Walla county may be res judicata as to a subsequent inquiry into the sanity of the accusеd. The verdict and judgment of the court in which he was convicted is conclusive of the question of his sanity at the time of the commission of the crime, and the utmost effect of the present order is to find that he was insane аt the time of the inquiry and that there was no apparent possibility of his recovery before the date fixеd for executing the death warrant. The order itself carefully protects the subsequent rights of the state. It direсts the warden to hold the accused until such time as the superior court in which he was convicted shall order otherwise. The state, therefore, is at liberty, at any time it may choose, to cause the accusеd to be brought before that court and have his sanity inquired into, and, if he is then found sane, and found to be sane at thе time of his trial, have another day appointed for carrying his sentence into effect.
Passing the questiоn of jurisdiction, we see no cause for a reversal of the order. From early times it has been the practice of the English courts, in instances where a prisoner has become insane between the time of his conviction for a capital crime and the time appointed for his execution, to stay the execution until sanity is restored. 4 Blackstone 24-25. The American courts have generally conceded the principle, resting it on the inherent power of the courts. It may be that the power is usually exercised by the court in which the conviction was had, and it may be that were the question before us in such a manner that our judgment *137 would conclude the particular case, , we would so determine. But, as we have pointed out, the mischiеf in this instance, if jurisdiction was wrongfully exercised, is beyond correction.
Some question is made as to the proper construction of the statutes, but we think that we need not review them. They seem to be in utter confusion, but wе find in them nothing which seems to interfere with the power of the courts tó grant a stay of execution where conditions arise such as are presented in the case before us.
The order will be affirmed.
Tolman, C. J., Holcomb, Mitchell, and Mackintosh, JJ., concur.