McFADDIN, Justice.
On September 23, 1947, appellant, Floyd Lee Poole, was convicted of rape (Section 3403, Pope's Digest), and sentenced to death. He brings this appeal; and Section 4257, Pope's Digest, prescribes the extent of the review. There were eight objections made by the defendant in the course of the trial. We find it necessary to discuss only the one objection that necessitates a reversal.
On July 19, 1945, an information was filed charging Floyd Lee Poole1 (hereinafter referred to as "defendant") with the crime of rape, alleged to have been committed on April 13, 1945. On July 20, 1945, the circuit court — upon suggestion that insanity might be an issue — ordered the defendant committed to the State Hospital for examination as provided by Initiated Act No. 3 of 1936 (see page 1384 et seq., of the Acts of 1937). A report was duly made by the superintendent of the State Hospital (who, at that time, was Dr. A. C. Kolb) under date of August 21, 1945, stating that the defendant was then insane and was probably insane at the time of the alleged offense.
Thereupon — on February 18, 1946 — the circuit court made an order (hereinafter referred to as the "1946 order"), reading as follows:
"On this 18th day of February, 1946, this cause coming on for trial, comes the State of Arkansas, by James C. Hale, Prosecuting Attorney for the Second Judicial District, the defendant, Floyd Lee Poole in custody of the Sheriff of Crittenden County and by his attorney of record, Edward J. Ruebens, and upon formal arraignment in open Court, the defendant by his counsel entered a plea of not guilty by reason of
insanity to the charge of Rape as alleged in a proper Information heretofore filed in this Court.
"Counsel for the defendant stated in open Court that the defendant had been examined by Dr. James R. Falls, a competent doctor of medicine of his own choosing, and that he was, at the time of the commission of said offense, and is now, non compos mentis; that the report of Dr. A. C. Kolb, Superintendent of the Arkansas State Hospital for Nervous Diseases, which had heretofore been made a part of this record was in all respects accepted as true and relied upon by the defendant; that such report of Dr. A. C. Kolb found that the defendant was suffering from cerebrospinal syphilis, is not now legally responsible for his actions, and was not legally responsible for his actions at the time of the commission of the offense for which defendant stands charged.
"Being fully advised in the premises the Court doth find that the defendant, Floyd Lee Poole, is insane and not legally responsible for his actions; that the defendant was insane and not legally responsible for his acts at the time of the commission of the felony with which he stands charged; that the defendant, Floyd Lee Poole, should be confined in the Arkansas State Hospital for Nervous Diseases as provided by law.
"It is, therefore, the order and judgment of this Court that Floyd Lee Poole be taken by the Sheriff of Crittenden County and delivered to the Arkansas State Hospital for Nervous Diseases to be confined therein as provided in Section 16 of Act 241 of the Acts of the State of Arkansas for the year 1943.
"It is the further order and judgment of this Court that all further action in this cause be stayed and held in abeyance by reason of the insanity of the defendant until the further order and direction of this court."
On January 13, 1947, the defendant (having escaped from the State Hospital) was found at large, and was taken in custody by the sheriff of the county and brought before the Crittenden Circuit Court; and an order was made (hereinafter referred to as the "1947 order"), in part as follows:
"On this 13th day of January, 1947, this matter being brought before this Court, comes the State of Arkansas by James C. Hale, Prosecuting Attorney within and for the Second Judicial District, and the Defendant, Floyd Lee Poole, in the custody of the Sheriff of Crittenden County.
"Being fully admised in the premises the Court doth find:
"That Floyd Lee Poole was properly charged with the crime of Rape by Information filed on the 19th day of July, 1945; that this Court subsequently on the 20th day of July, 1945, entered its order directing the defendant to be delivered to the State Hospital for Nervous Diseases for observation and examination, the insanity of the defendant having been properly suggested; that thereafter on the 21st day of August, 1945, the State Hospital for Nervous Diseases by and through Dr. A. C. Kolb, the Superintendent thereof, furnished this Court with a report of the examination of the defendant which report stated that the defendant, Floyd Lee Poole, was diagnosed as having psychosis with cerebrospinal syphilis and that he was not legally responsible for his acts at the time of the examination or at the time of the alleged crime. The Court thereupon entered its order on February 18, 1946, committing the defendant, Floyd Lee Poole, to the State Hospital for Nervous Diseases according to the provisions of Section 16 of Act 241 of the Acts of Arkansas for the year 1943.
"Being further advised in the premises the Court doth find * * * that the defendant was not properly confined and on two occasions thereafter departed from the institution and resumed the illegal acts * * *; that the sheriff of Crittenden County was again advised and again took the defendant into custody.
"It is the order and judgment of this Court that Floyd Lee Poole be taken by the Sheriff of Crittenden County, Arkansas, and delivered to the Keeper or Superintendent of the Arkansas State Hospital for Nervous Diseases; the Superintendent
of said institution is hereby directed to keep the defendant, Floyd Lee Poole, who is by this Court found to be an insane criminal, securely confined in the proper ward of said institution from this date until the further order of this Court."
Later in 1947, Dr. G. W. Jackson, then superintendent of the State Hospital, reported that the defendant was sane; so the defendant was returned to the Crittenden Circuit Court, and on September 23, 1947 he was placed on trial on the original information filed on July 19, 1945, as heretofore mentioned. At that trial — from which comes this appeal — the defense was insanity. The trial court first admitted in evidence on behalf of the defendant the 1946 and 1947 orders; but at the conclusion of the evidence, and after the defendant had rested his case, the court excluded both of the said orders. This appears in the record:
"The Court: Gentlemen of the jury, during the progress of the trial of this case an order dated the 18th of February, 1946, made by Judge Killough, committing the Defendant to the Hospital for Nervous Diseases, and an order made by this Court on the 13th day of January, 1947, committing the defendant to the State Hospital for Nervous Diseases, was admitted in evidence. It has now been determined that these two orders were not properly admitted in evidence before you, and you are told in arriving at your verdict in this case that you are not to consider these orders for any purpose."
The defendant duly excepted to the above ruling; and the exclusion of these orders is one of the points argued for reversal.
It is a rule of almost universal recognition that in criminal cases, when insanity is relied on as a defense, an adjudication declaring the defendant to be an insane person is competent to go to the jury as evidence on that issue. The adjudication may be prior to the alleged offense or reasonably subsequent to the alleged offense, for which the defendant is being tried. Such adjudication is not conclusive of the insanity of the defendant, but is admissible in evidence for consideration by the jury with all the other evidence bearing on the question of the defendant's insanity. Our own case of McCully v. State, 141 Ark. 450, 217 S.W. 453 is directly in point. In that case the defendant was being tried for incest, and offered an adjudication of the probate court committing the defendant to an insane asylum.2 The trial court refused to admit the probate record in evidence, but this court reversed the trial court, and held that the record of commitment to an asylum was admissible on the issue of insanity. Mr. Justice Wood, speaking for this court, said:
"To determine the issue as to whether the appellant was insane at the time of the alleged commission of the offense testimony tending to show the mental condition of the accused both before and after the commission of the act was competent. 1 McClain on Criminal Law, p. 136.
* * * * * *
"In criminal cases the record of inquisitions of lunacy or insanity is competent to go to the jury as evidence on that issue, but the weight of such evidence is for the jury."
Cases from other jurisdictions are in accord with our holding, that an adjudication of insanity is competent evidence to be offered upon the defendant's trial for the commission of a crime alleged to have been committed either prior or subsequent to the adjudication of insanity. Some such cases are: Davidson v. Commonwealth, 171 Ky. 488, 188 S.W. 631; State v. McMurry, 61 Kan. 87, 58 P. 961; Wheeler v. State, 34 Ohio St. 394, 32 Am.Rep. 372; Hempton v. State, 111 Wis. 127, 86 N.W. 596; People v. Farrel, 31 Cal. 576; State v. Glindemann, 34 Wash. 221, 75 P. 800, 101 Am.St.Rep. 1001; Bond v. State, 129 Tenn. 75, 165 S. W. 229; and Smedley v. Commonwealth, 139 Ky. 767, 127 S.W. 485. See also 16 C.J. 558 and 23 C.J.S., Criminal Law, § 924, and annotations in 7 A.L.R. 568 ...
