1. It is not error to qualify a jury as to the death penalty in a capital felony case although the district attorney has stated in open court that the death penalty will not be insisted upon.
2, 3, 4. The requested instructions dealt with in the 2d 3rd and 4th divisions of the opinion should have been given in charge to the jury and the refusal to give such instructions was reversible error.
5. The evidence authorized the verdict.
This appeal is from a conviction of murder wherein the defendant was sentenced to life imprisonment. The defendant is a married woman with four children ranging in age from 9 months to 12 years. The evidence showed without dispute that the defendant's husband and the deceased had engaged in a continuing adulterous affair, which, according to the husband, had ceased some 2 to 3 months prior to the homicide. Yet his behavior pattern had not changed in that he continued to remain away from home after his normal working hours and to come home late at night in an intoxicated condition.
The defendant's activities on the day of the homicide are likewise uncontradicted. After taking one of her children to have her eyes examined, she went to a neighbor's home to wash some clothes in a washing machine. Before the clothes were washed and dried she removed partially washed clothes from a washer and partially dried clothes from a dryer, placed them all together in one container and carried them home. She left home, leaving her children in the care of a sister-in-law, went to a store and purchased a pistol, went to another store where she purchased ammunition (the store where she purchased the pistol was sold out of ammunition), she then went to a service station where she read the directions on loading the pistol and proceeded to place bullets in it. From the service station she took a taxicab to the store where the deceased worked. She did not know the deceased by sight and got a fellow employee of the deceased to identify her for the defendant. She attempted to talk to the deceased but was unable to do so; she then left and walked to a nearby restaurant where she secured medication for a headache and had a cup of hot chocolate and sat in a booth for approximately 20 minutes when the deceased came in to eat her supper. The deceased grinned at the defendant when she came in and looked at her when she left but sat at a table where the defendant could not see her while she ate. At seven o'clock the defendant went back to the store where the deceased worked but not the department where she worked, and stood around for an hour or more, then sat in a chair for a time and then stood at the front of the store where the cashiers' stands were located.
At approximately 9:45 p. m. the deceased had been going from one cashier's stand to another in full view of the defendant and laughing and talking to another employee. The defendant then walked up to the deceased, said "Renee, I'm sorry" and shot her. The deceased died shortly thereafter from such wound. The shooting occurred in the presence of from 50 to 75 persons and the defendant made no attempt to escape but on the contrary, docilely submitted to arrest.
Expert testimony was adduced which would have authorized the jury to find that the defendant was suffering from delusional insanity.
NICHOLS, Justice.
1. The defendant was charged with a capital felony and it was not error, as contended in the first two enumerations of error to qualify the jury as to capital punishment and to permit the State to strike for cause those jurors opposed to capital punishment even though the district attorney had stated that the State would not insist upon the death penalty.
2. As to the question of "insanity" and "delusional insanity" it was said in Johnson v. State, 226 Ga. 511, 515 ( 175 S.E.2d 840), quoting from Barker v. State, 188 Ga. 332, 333 ( 4 S.E.2d 31): "The general rule is that if a man has reason sufficient to distinguish between right and wrong in relation to a particular act about to be committed, he is criminally responsible. Roberts v. State, 3 Ga. 310; Carr v. State, 96 Ga. 284 ( 22 S.E. 570). While there is an exception to this rule, to the effect that although a man has reason sufficient to distinguish between right and wrong as to a particular act about to be committed, yet if, in consequence of some delusion brought about by mental disease, his will was overmastered so that there was no criminal intent with reference to the act in question, he will not be held as criminally responsible ( Roberts v. State, supra; Flanagan v. State, 103 Ga. 619 ( 30 S.E. 550); Taylor v. State, 105 Ga. 746 ( 31 S.E. 764); Allams v. State, 123 Ga. 500 ( 51 S.E. 506); Rozier v. State, 185 Ga. 317 ( 195 S.E. 172)), which is commonly referred to in the decisions as delusional insanity, yet in order for such defense to be available on a trial for murder, it must appear, not only that the defendant was actually laboring under a delusion ( Goosby v. State, 153 Ga. 496 ( 112 S.E. 467)), but `that the act itself is connected with the particular delusion under which the prisoner is laboring' ( Roberts v. State, supra), and also that the delusion was as to a fact which, if true, would justify the act. Mars v. State, 163 Ga. 43 ( 135 S.E. 410); McKinnon v. State, 51 Ga. App. 549 ( 181 S.E. 91); Choice v. State, 31 Ga. 424, 478; Hill v. State, 64 Ga. 453 (3a).' See also Mullins v. State 216 Ga. 183, 187 ( 115 S.E.2d 547)."
Thus, the question is presented as to whether the delusion under which the defendant contends she was suffering, would, if true, have justified the act.
While it has been held numerous times that a homicide is justifiable where done to prevent the commission or completion of the adulterous act (see O'Shields v. State, 125 Ga. 310 ( 54 S.E. 120) and citations), yet "On the other hand, if the killing, although apparently necessary to prevent adultery, was actually done by the defendant under a violent and sudden impulse of passion engendered by the circumstances and not to prevent the adultery, the offense is that of manslaughter. Mays v. State, 88 Ga. 399 ( 14 S.E. 560); Patterson v. State, 134 Ga. 264 ( 67 S.E. 816)," Scroggs v. State, 94 Ga. App. 28, 30 ( 93 S.E.2d 583), and further a killing to revenge a past sexual wrong committed upon a spouse cannot be deemed justifiable (see Ellison v. State, 137 Ga. 193 (4) ( 73 S.E. 255)).
In Miller v. State, 9 Ga. App. 599, 605 ( 71 S.E. 1021), it was said: "But, though a killing for a wrong which has been completed can not be justified, no matter how heinous the wrong, it is still justifiable to prevent certain wrongs which may be prevented, even if it cost human life to prevent their infliction. One may shoot and kill a burglar to prevent the burglar from entering his house; it is for the jury to say whether a father endowed with the right to protect his daughter has not an equal right to prevent her continued defilement and disgrace. The principle underlying both instances is the same. The only question which could arise is, Which is the more valuable, the preservation of the chattels within the house, or the protection of its inmates?"
The holdings in the Miller case, supra, as well as in the Scroggs case, supra, graphically point out the distinction between a situation where the killing was done for revenge and where done to prevent further acts of sexual misconduct upon the spouse or daughter of the defendant. The gist of such holdings is that where a continuing adulterous affair exists, as opposed to mere past acts of misconduct, if a jury believes the killing was done to prevent future misconduct, an acquittal is authorized. See also Richardson v. State, 70 Ga. 825 (2), the justification being authorized by Code Ann. § 26-901 (f). See Daniels v. State, 162 Ga. 366 (4a) ( 133 S.E. 866), and citations, dealing with cases where the deceased is killed as a result of being caught in the act.
The evidence authorized a finding that the deceased and the defendant's husband had been engaged in a continuing adulterous affair which, except for a six-month interruption when the defendant and her husband lived in another town, had been going on for approximately two and one-half years, that although the defendant's husband professed that such affair had been terminated he admitted that his conduct had not changed and that he had continued to drink and stay out at night.
Under the above facts and the decisions exemplified by Johnson v. State, supra, a charge on delusional insanity was authorized and the requested charge which included a statement to the effect that a person may be suffering from delusional insanity even though he can distinguish between right and wrong was erroneously rejected by the trial court. See also Allams v. State, 123 Ga. 500 (3) ( 51 S.E. 506); and Flanagan v. State, 103 Ga. 619 ( 30 S.E. 550). At no time did the trial court distinguish between insanity where knowledge between right and wrong does not exist and delusional insanity where such knowledge may exist.
3. The defendant requested the court to instruct the jury: "The act itself may be so utterly senseless and abnormal as to furnish satisfactory proof of a diseased mind." The request was refused and such refusal is the basis of the 4th enumeration of error.
In Ross v. State, 217 Ga. 569, 578 ( 124 S.E.2d 280), with two dissents upon other grounds, it was held that a defendant's actions could be construed as those of a sane and cunning man and not an insane one. Such decision cited Wilson v. State, 9 Ga. App. 274 ( 70 S.E. 1128), where it was held that the defendant's actions were such that "no sober, sane man in the possession of his normal faculties would have done what this man did, in the circumstances under which he did it, and in the manner in which he did it."
The requested charge stated a correct principle of law. The evidence adduced that the homicide was committed in full view of 50 to 75 persons, after the defendant had been in the store for several hours, with no attempt to conceal either her identity or the homicide, and without any attempt to escape, authorized such charge and the refusal to give such requested charge was error.
4. The refusal to give the requested charge complained of in the 5th enumeration of error, which request was for all practical purposes a quotation of the charge held proper in Hargroves v. State, 179 Ga. 722 (3) ( 177 S.E. 561), was error.
5. Where, as here, the evidence adduced by the State proved a prima facie case of murder and the jury was not required as a matter of law to accept the evidence presented by the defendant either as to justification, insanity or delusion insanity it cannot be said that the verdict was not authorized by the evidence and the 6th enumeration of error complaining that the verdict was not supported by the evidence shows no reversible error.
For the reasons dealt with in Divisions 2, 3 and 4 of this opinion the conviction must be reversed and a new trial granted.
Judgment reversed. All the Justices concur, except Grice, Undercofler and Felton, JJ., who dissent. Mobley, P. J., concurs specially.