Syllabus.

For the reasons given we think the demurrer to the petition should have been sustained, and, therefore, the judgment will be reversed.

Judgment reversed.

JONES, MATTHIAS, JOHNSON, HOUGH and WanaMAKER, JJ., concur.

ROBINSON, J., not participating.

THE STATE OF OHIO V. HOLLENBACHER.

Statutory construction — Revision of subject-matter-Repeals by implication-Affirmative statutes reconciled, when Effect of enactment of General Code -- Codification considered original enactment — Criminal law-Insanity of defendant before ·Section 13608, General Code-Jury to determine sanity, when-Lima State Hospital Act inapplicable, when.

sentence

1. A statute which revises the whole subject-matter of a former enactment, and which is evidently intended as a substitute for it, operates to repeal the former, although it contains no express words to that effect. But repeals by implication are not favored, and where two affirmative statutes exist, one will not be construed to repeal the other by implication, if they can be fairly reconciled. The fact that a later act is different from a former one is not sufficient to effect a repeal. It must further appear that the later act is contrary to, or inconsistent with, the former. 2. The enactment by the legislature of the General Code in the act to revise and consolidate the general statutes of Ohio, passed February 14, 1910, gave to the statutes included therein the authority of an original enactment.

3. Section 7240, Revised Statutes, was not repealed by implication by the Lima State Hospital Act, 98 Ohio Laws, page 236. Its provisions were substantially re-enacted in the General Code, and the requirements of Section 13608, General Code, formerly Section 7240, Revised Statutes, are mandatory.

(No. 16621-Decided December 21, 1920.)

Statement of the Case.

ERROR to the Court of Appeals of Allen county.

The defendant in error was indicted for murder in the first degree by the grand jury of Allen county, Ohio, in 1919. In November of that year the cause was tried and the defendant was found guilty of murder in the first degree, with a recommendation of mercy by the jury. Within three days a motion for a new trial was duly filed.

On the 17th of the same month, and before sentence was pronounced, counsel for the defendant filed a suggestion that the defendant "is not now sane." The suggestion was accompanied by the certificate of a reputable physician to the same effect. Counsel for the state filed a motion to strike the suggestion as to insanity, and the affidavit and certificate accompanying it, from the files, for the reason that the jury had convicted the defendant, and that the court of common pleas had no jurisdiction to determine the defendant's then insanity. Thereafter, the court of common pleas found that the defendant was not entitled to have the question of his sanity presented to the jury, and on the same day, to-wit, November 22, 1919, the motion of the defendant for a new trial was overruled and the defendant was sentenced to the penitentiary for life.

On proceedings in error in the court of appeals, that court reversed the judgment of the court of common pleas. In its entry of reversal is included the following: "The court do find error committed by said Court of Common Pleas of said county in its refusal to order the impaneling of a jury pur

Opinion, per JOHNSON, J.

suant to Section 13608, G. C., to try the issue of sanity of the defendant below at the time of such impaneling. * * * It is ordered that this cause

be remanded to said Court of Common Pleas with direction to proceed pursuant to said Section 13608 of General Code and related sections. If defendant below be found insane to commit him to the Lima State Hospital. If defendant below is found sane then said trial court shall hear and determine the motion for new trial filed November 15, 1919; and for all further proceedings according to law." the trial in the common pleas court counsel for defendant interposed the defense of insanity at the time deceased was killed. This proceeding is brought to reverse the judgment of the court of appeals.

On

Mr. John L. Cable, prosecuting attorney, and Mr. E. T. Lippencott, assistant prosecuting attorney, for plaintiff in error.

Mr. S. A. Armstrong, for defendant in error.

JOHNSON, J. The judgment of reversal entered by the court of appeals was predicated on the ground that under the provisions of Section 13608, General Code, it was the duty of the court of common pleas, on the filing of the suggestion of counsel for the defendant that he "is not now sane," with the accompanying affidavit and certificate to the same effect, to order a jury to be impaneled to try whether or not the accused is insane "at the time of such impaneling." Pertinent parts of Section 13608 are as follows: "When the attorney of a person indicted for an offense suggests to the

Opinion, per JOHNSON, J.

court in which such indictment is pending, and before sentence, that such person is not then sane, and a certificate of a reputable physician to that effect is presented to the court, such court shall order a jury to be impaneled to try whether or not the accused is sane at the time of such impaneling." Subsequent provisions of the same and following sections provide for the procedure.

In State v. Roselot, 69 Ohio St., 91, it was held. that the provisions of Section 13608, General Code, which was then Section 7240, Revised Statutes, are mandatory, and that the mode therein prescribed for a trial of the present sanity of a person under indictment, is peremptory and exclusive. The second proposition of the syllabus is: "When, therefore, at any time before sentence, the insanity of a defendant under indictment is suggested and brought to the attention of the court in which such indictment is pending in the manner provided in said Section 7240, it is the imperative duty of the court to order a jury to be impaneled to try such question, and such jury when so impaneled, shall be specially sworn to try the question whether the defendant is or is not then sane."

It will be observed that the sole question to be determined in the proceeding provided for in the section referred to is the sanity of the defendant at the time of inquiry. The jury is specially sworn to try that question. The investigation is not concerned with the indictment, or the guilt or innocence of the defendant of the crime charged; and

Opinion, per JOHNSON, J.

has nothing to do with the sanity of the defendant at the time of the commission of the alleged crime, except as it might throw light on the sanity of the defendant at the time of the impaneling of the special jury. It is manifest that the statute was passed in obedience to an enlightened sentiment that proceedings under indictment of one accused of crime should not be carried on while he is insane.

Counsel for the state concede that the judgment of the court of appeals would have been correct if rendered at the time of the decision of State v. Roselot, but they contend that Section 13608, General Code, has been repealed by implication by the Lima State Hospital Act, 98 Ohio Laws, page 236, which was passed April 2, 1906. It is contended that this act contains complete and comprehensive provisions for the care of the criminal insane, and that its provisions touching the subject covered in Section 7240, Revised Statutes, now Section 13608, General Code, are inconsistent therewith; that as the Lima State Hospital Act was passed subsequent to Section 7240, Revised Statutes, the latter is repealed by implication. The Lima State Hospital Act is entitled "An act to provide for the erection, organization and management of the Lima State Hospital for Insane." It provides for the appointment of officers to control the hospital and for their duties; and the act contains general provisions with reference to the management of the hospital and for the receipt, custody and care of inmates. The second section provides that it shall be used for the custody, care and special treatment of insane persons of seven different classes, among them persons