Wе have examined all that is shown in the record on this subject and find no element of abuse of discretiоn on the part of the court in permitting said change of plea.
It is also urged on behalf of the accused that the indictment was defective because the language of the single count in the indiсtment charged facts which might constitute several different offenses.
We do not find that there is any merit in this claim. Because certain acts may constitute the violation of several different statutes is no reason why said facts cannot be charged in an indictment for the violation of one of said stаtutes; but in any event, it being a matter relating to the form of the indictment, the plea of guilty waived any such claim. (G. C. Secs. 13581 and 13625; Carper v. State, 27 O. S. 572.)
Counsel for the accused also claim that notwithstanding the ' plea of guilty, the court should have found from the evidence that the accused was insane at the time of the commission of the crime and not responsible for his acts, and also that he should not havе been sentenced to death. This claim is made on the theory that the plea of guilty did not waive the defense of insanity. This has reference to insanity at the time the crime was committed and not to insanity at the time of trial.
It is also insisted that.if the accused by his plea waived the defenses he could mаke before the jury, he could still, under G. C, Sec. 13692, defend against the charge of first degree murder by showing that the killing was not done while in the perpetration of a rape.
Said section provides that when the indictment charges an offense including different degrees, the jury may find the defendant not guilty of the degree charged and guilty of an inferior degree thereof, and if the offense charged is “murder, and the aсcused is convicted by confession in open court, the court shall examine the witnesses, detеrmine the degree of crime and pronounce sentence accordingly.”
We assume that the true effect of this statute is, in the special class of crimes known as homicide, to place the duty upon the court to do that which but for the plea of guilty the jury would be called upon to do after finding the accused guilty of homicide.
In such a case, the jury, by finding the accused guilty, necessarily disposes of all defenses adversely to the accused, leaving to be considered only the specific facts which determine the degree of homicide of which the defendant is guilty. If it be found that the dеgree of the offense is murder in the first degree, then it would be the further duty of the jury to recommend or withhold mеrcy.
Applying that conception of the statute to the instant case, the accused plеad guilty to unlawfully taking the life of the deceased; and if he was competent to make such a plea and he made it with a full understanding and appreciation of its consequences, he cоuld not thereafter urge any defense whatever to the crime of homicide. If he or his counsel thоught that he could establish that the accused was insane at the time the crime was committed, that dеfense was completely waived by the plea of guilty; and the same is true of drunkenness or any other defense which could have been urged before the jury if a plea of guilty had not been made.
By the plea of guilty the homicide was conclusively established and it became the duty of the court to determine the degree of the offense, and if that was found to be murder in the first degree, then it was the duty оf the court to determine whether mercy should be extended to the accused. Whether or not the degree of the.offense was murder in the first degree depended upon whether or not the killing was dоne while the accused was perpetrating a rape or attempting to perpetrate a rape. The three judges who determined that question found that the killing was done in the perpetration of or attempt to perpetrate a rape.
Under said statute it has been determined that the court, upon, a plea of guilty of homicide, has the same right as the jury to recommend mercy; and it is claimed in this ease that the court erred in not recommending mercy.
As we understand the law, the right conferred upon a jury to recommend mercy in the event of finding the accused guilty of murder in thе first degree is a discretionary right and one which is not reviewable; and we think that the same rule applies where the court, in case of a plea of guilty, is called upon to pass upon the quеstion of recommending mercy. But if the matter is reviewable, the record in this case does not disclose that the trial court erred in that regard.
We think that under the law of this state and the facts shown by the evidence in this case, the accused was legally responsible for his *719 acts, and we find no reason for disturbing the judgment and sentence of the Common Pleas Court or for further postponing the day of execution.
Judgment affirmed.