delivered the opinion of the court.
Dеfendant was found guilty of assault in the first degree; he moved for a new trial, which was dеnied. The appeal is from the order denying a new trial.
The sole question presented by the appeal is whether a new trial should have been granted by reason of the alleged insanity of one of the jurors who sat in the case. In support of the motion for new trial affidavits were presented showing that one of the jurors on July 21, 1927, had been declared insane and ordered committеd to the insane asylum, and that he had never been judicially restored to competency either by court order or by a certificate under section 5685, Revised Codes, and that the fact of the insanity proceedings was not known to defendant or his counsel until after the verdict was returned.
In opposition to the motion the state filed affidavits of two physicians stating, in effect, that they еxamined the juror on November 28, 1936, being the day the verdict was rendered; that they wеre of opinion that the juror is “quite competent mentally, ’ ’ and that, after hаving an extended conversation with him, they did not notice any abnormality in his mind or cоnduct at *418 that time. A layman well acquainted with the juror made affidavit that he had never noticed any peculiarity in the actions, manner or talk of the juror, аnd that he knew him to be a competent and trustworthy farm employee.
The jurоr himself made affidavit that he had been committed to the asylum on July 21, 1927, and was released in September of the same year after the officers of the institution had notified his parents that he was cured and ready to be released. Hе stated that the reason for his confinement was a nervous breakdown ; that аfter his release he worked as a farm laborer, and that since the spring of 1934 he has been a ranch foreman. At the time of the hearing on the motion for new trial the juror was examined as a witness and testified more in detail relativе to the matters contained in his affidavit. The records of the court resulting in the commitment in 1927 were also introduced in evidence.
Under our statutes (secs. 8890 and 8892, Rev. Codes), a juror is not competent to act as such who is not in possession of his natural faculties. Defendant takes the view that, since the juror was adjudgеd insane under sections 1431 to 1438, Revised Codes, and committed to the insane asylum, hе must be conclusively presumed to remain insane until restored to capacity under section 10415, Id., or until obtaining a certificate under section 5685. This contеntion cannot be sustained. The courts are practically in accord in holding that under statutes similar to our sections 1431 to 1438, inclusive, and section 5685, the adjudiсation does not establish a conclusive presumption of insanity. (Pe
ople
v.
Willard,
By virtue of section 5685, supra, an adjudication of insanity under sections 1431 to 1438, inclusive, does not establish a conclusive, but a rebuttable, presumption оf insanity. Section 5685 substitutes for the presumption of sanity the presumption of insanity until thе certificate therein provided for is obtained. The latter part of that section merely provides, in effect, that the certificate there mentioned re-establishes the presumption of sanity for that of insanity. Hence, without the certificate, there is a presumption of insanity, but this is a rebuttable prеsumption, as the cases above cited show. The question, therefore, became one of fact as to whether the juror was competent mentally at the time of the trial.
(In re Robert Buchanan,
There was ample evidence to sustain the finding оf the trial court that the juror was in possession of his natural faculties at the timе of the trial. The matter was addressed to the discretion of the trial court, and, since there was evidence to sustain its ruling we cannot disturb it.
The order appealed from is affirmed.
Rehearing denied April 27,1937.