Jones v. State
13 Ala. 153
Ala.
1848
Check Treatment
CHILTON, J.

1. The first question proposed for our consideration is, whether the facts as stated in the bill of exceptions, show such property in the pistol, in Speight, as will sustain the indictment, and render the qualification given by the court, in connection with the first charge prayed for by the prisoner’s counsel, proper ? It is laid down in the books generally, that where the delivery of goods is made for a certain special and particular purpose, the possession is still supposed to reside, unparted with, in the first proprietor. See 1 Hawk. P. C. c. 33, § 9; 2 Russ. 107. The distinction is drawn between the bare charge of goods, or a special use in them, and a general bailment; in the one case, the possession is supposed to be in the owner, and the party having the charge, or use, may commit larceny of them; in the other, he acquires a special property, and it is not the *157subject of felonious conversion by the possessor. 2 Russ. 108. But whenever a special property in the goods vests in the holder, by reason of a contract creating a bailment, there is no doubt but that it is sufficient to describe the chattel as belonging to the bailee. The indictment may charge the property to belong either to the general or special owner. Examples are given in the books of this character, such as a lessee for years, a bailee, a pawnee, a carrier, and the like. 2 Russ. 157. It is clear to my mind, that Speight having-received the pistol to keep, until demanded by the State, and having given his bond for its return, has a special property in it, and the fact that it was left with his overseer, on his farm, cannot alter the case. The overseer’s possession was the possession of his employer, who was bound for the return of the chattel. The employer is then as much in possession of this article of property as of any other in the charge of his overseer. See cases referred to in the defendant’s brief.

2. That the jury did not find the value of the property stolen, is not erroneous ; but if it was, it is an error of which the prisoner cannot complain. It has no effect upon his guilt or innocence, but is only important as it relates to the restitution of the property stolen. That he is not required to restore the property, or that the jury have not, by their verdict furnished the party aggrieved by reason of the larceny, with the means of obtaining judgment, under our statute, for the value of the pistol against the prisoner, is certainly no injury to him, and not having been injured, he cannot complain.

3. The remaining inquiry relates to the legality of the charge as qualified by the presiding judge. We are informed by the bill of exceptions, that there were strong circumstances tending to show the prisoner’s insanity, from a period anterior to the commission of the alledged offence, down to, and at the trial. A physician, who heard the testimony, gave it as his medical opinion, that he was afflicted with progressive insanity from a period some time before -the time of the alledged of-fence, and was greatly insane at the time of the trial. Now we agree with the court, that if the prisoner was sane at the ¡time of the commission of the offence, the jury should not *158have returned a verdict in his favor. It is beyond question, that insanity intervening between the time of the alledged offence and the trial, cannot have the effect to exculpate the prisoner. There is then no error in the charge of the court, b ut the only matter of any difficulty is this. The evidence strongly indicated, perhaps was conclusive, of the prisoner’s insanity at the time of the trial. Under such circumstances, it was not proper that he should have been put upon his trial. By the humanity of the common law, a party who was insane at the time of the trial, could not be arraigned. If he became insane after his conviction, he could not be executed while he remained thus demented. See 1 Hawk. P. C. 3, § 3 1 Hale, 34-5; 1 Russ. 13; 4 Bl. Com. 25.

In the Commonwealth v. Seth Braley, 1 Mass. Rep. 102, the prisoner was brought into court, and the indictment for killing his wife being read to him, he was asked the usual question whether he was guilty or not guilty, the prisoner said he did not know what to answer, it seemed to him he had seen her since. The court suspended the arraignment, giving the prisoner time to consider, and after another attempt to have him plead, which was ineffectual, being satisfied from his appearance and conduct he was insane, a jury was immediately impannelled and sworn “ well and truly to try between the commonwealth and the prisoner at the bar, whether he neglected and refused to plead to the indictment against him for murder, of his free will’and malice, or whether he did so by the act of God.” The jury found he did so “by the act of God.” Whereupon he was remanded to jail. But in the case before us, the judge did not see proper to test the prisoner’s sanity, by any preliminary inquiry to ascertain whether he was capable of pleading to the indictment — he did plead, and a'trial and conviction was the result. Although we are of opinion that the facts disclosed in the bill of exceptions, might well have warranted the preliminary inquiry as to the prisoner’s mental condition, yet this must be left to the sound discretion of the court. If, amid the mystery and veil which shrouds the phenomena of mental aberration, so difficult to penetrate, the judge should be mistaken, and try an insane man, (as we incline to think has been done in the case before us,) it will present a case in *159which there may be a strong appeal to executive clemency. We cannot, from the record, see that error, such as we can judicially notice, has been committed. The judgment of the circuit court is therefore affirmed.