Statement of the Case.

This request was denied by the court "for the reason that the defendant had already been tried on the issue as to whether or not he was sane or insane." Thereupon the defendant was sentenced to death.

On July 28, 1920, the court of appeals affirmed the judgment of conviction, and on October 27 of the same year also confirmed the judgment of the court of common pleas upon a supplemental petition in error filed in the appellate court.

After conviction, sentence, and affirmance thereof by the court of appeals, acting under Section 13735, General Code, the sheriff of Sandusky county, on November 15, 1920, represented to the court of common pleas that the defendant appeared to be insane, and asked that a jury be impaneled to inquire into the question as to whether or not the defendant was then sane or insane. A jury of twelve persons was impaneled to try that issue and on December 24, 1920, a verdict was rendered, signed by nine of the twelve jurors, finding the defendant sane. It does not appear that error, as to this trial, was ever prosecuted to the court of appeals.

Upon the trial on the indictment, on the question of the right of the jury to recommend mercy the trial court charged as follows: "This right or option may be exercised by the jury under the same evidence which would justify the return of a verdict the punishment of which is death in the electric chair. It is entirely within your province and your discretion to say whether there is any circum

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Counsel for Parties.

stance or fact in the case, or whether from all the evidence you believe that notwithstanding his guilt of murder in the first degree, mercy or clemency should be extended. If you do recommend mercy, the court is bound to reduce the punishment to life imprisonment. It is a matter wholly within the discretion of this jury."

Upon the issue of the defendant's insanity the court charged the jury as follows: "The law presumes every person who has reached the age of discretion to be of sufficient mental capacity to be responsible for crime until the contrary is shown, and therefore the burden of establishing the defense of insanity rests upon the defendant. The law does not require that this defense be established beyond a reasonable doubt, a preponderance of the evidence is all that is necessary, and the proof should be deemed to preponderate in favor of the defense of insanity when its existence is made probable upon a full and fair consideration of all the evidence adduced. If you find from all the evidence that the defendant was probably insane on the 25th day of November, in the year 1919, then the defense of insanity is made out by a preponderance of the evidence and the defendant should be acquitted upon the ground of insanity."

Mr. R. R. Parkhurst and Mr. Jesse Vickery, for plaintiff in error.

Mr. Allan G. Aigler, prosecuting attorney; Mr. Frank Carpenter and Mr. G. Ray Craig, for defendant in error.

Opinion, per JONES, J.

JONES, J. One of the reasons for permitting the filing of petition in error in this case was that it involved a similar question presented in the case of Howell v. State, ante, 411, decided at the present term. As in the Howell case it is here urged that touching the recommendation of mercy by the jury the trial court erred in restricting the jury's discretion to recommend mercy to the facts and circumstances developed on the trial. While in that respect the trial court used substantially the same language found in the charge in the Howell case, the charge in the instant case was even more favorable for the defendant in that the court more than once told the jury that it was a matter wholly within their discretion. In confining that discretion to the evidence developed upon the trial, the trial court did not err. Howell v. State, supra, followed and approved.

With respect to the charge relating to the burden of proof on the issue of insanity, counsel for plaintiff in error again urge this court to modify its former holdings upon that question. The claim is made that in proving the state's case, some evidence having been offered tending to show insanity, the burden in that event shifted upon the state to overcome such tendency. In that respect the plaintiff in error would evoke the rule adopted by this court in cases where plaintiff's own evidence shows contributory negligence. However, this court has adopted a fixed rule upon that question from which we are not disposed to depart. The burden of proof upon the issue of insanity does not shift from the defendant to the state, but the defendant must

Opinion, per JONES, J.

establish that issue by a preponderance of all the evidence adduced on the trial. Loeffner v. State, 10 Ohio St., 598; Bond v. State, 23 Ohio St., 349; Bergin v. State, 31 Ohio St., 111, and State v. Austin, 71 Ohio St., 317.

It appears from the record that after the plea of "not guilty," and before trial, counsel for the accused, acting under Section 13608, General Code, suggested the insanity of the defendant. That issue was tried by a jury and the defendant found sane. However, counsel for the defendant again undertook to avail themselves of the same statute by suggesting the insanity of the accused after his conviction, and after the motion for a new trial had been overruled, but before sentence. This suggestion was accompanied by the certificates of two reputable physicians, Drs. Phillips and Philo. However, there is nothing in the record, and nothing in the certificates of these two physicians, even tending to show that the mental stability of the accused had changed since the question of insanity was tried. In fact, if this issue were again presented it would be equivalent to a retrial of insanity upon the same facts but before a different jury. Whether, if the defendant had become suddenly insane after his trial for insanity, a second suggestion could have been made by his counsel, it is not necessary to decide; but undoubtedly the statute does not comprehend more than one trial upon the issue of insanity where such a situation does not develop. The trial court, therefore, did not err in refusing to impanel a second jury upon that issue.

Opinion, per Jones, J.

After the charge of the court and after the submission of the case to the jury the following colloquy occurred: The defendant: "Have I got a right to say something in this case?" Court: "What does your counsel say?" Counsel for defendant: "It is up to the court." Court: "I will let counsel present your defense-I think counsel have presented his defense."

Counsel for plaintiff in error contend that the court thereby denied to the accused the right guaranteed him by Section 10, Article I of the Constitution, which provides that "the party accused shall be allowed to appear and defend in person and with counsel." Although this constitutional right has been guaranteed to the accused and his counsel there is no constitutional violation in providing for the exercise of this right. Section 13675, General Code, provides the manner in which criminal cases shall be conducted. This procedure was followed in the instant case, and unless there was an affirmative showing that an unfair trial resulted from such denial it would not be error to refuse permission to address the court or jury after the case had been fully submitted.

After the judgment of conviction and sentence had been affirmed by the court of appeals, upon the representation of the sheriff, acting under Section 13735, General Code, the court again impaneled a jury to inquire into the sanity of the accused. In this proceeding nine of the twelve jurymen signed a verdict finding the defendant sane. Even should it be conceded that this last proceeding in the trial