The opinion of the court was delivered by: Taylor, Justice.
Appellant, charged with the murder of his wife, was convicted of the crime of manslaughter at the May, 1956, Term of General Sessions Court for Union County and sentenced to serve three years imprisonment.
At approximately 7:45 A.M., on December 14, 1949, appellant, while in his home in Union, South Carolina, shot and killed his wife, Mrs. Lilly Mae Allen, to whom he had been married approximately ten years. Thereafter, on January 6, 1950, appellant was ordered examined by the authorities of the South Carolina State Hospital, which is the institution for those mentally ill. Having completed its examination, the staff reported to the Court, on February 9, 1950, that the defendant was then insane. He was committed to the South Carolina State Hospital as an inmate on February 27, 1950. The Order of commitment provided among other things that appellant, upon his discharge from the State Hospital, would be released to the Sheriff of Union County.
Appellant remained at the Hospital as an inmate for more than five years, during which he several times requested his release. In March, 1955, a writ was issued by the Court and a hearing held at which time two members of the staff of the State Hospital testified that he was then sane. On March 22, 1955, the hearing Judge issued an Order releasing appellant to the Sheriff of Union County. On May 22, 1956, appellant was arraigned in the Court of General Sessions for Union County and plead "not guilty" to the charge of murder. Upon trial, he was found guilty by the jury of the crime of manslaughter; and appellant contends, first, that the uncontradicted testimony shows that the defendant was insane as a matter of law at the time of the shooting and, therefore, entitled to a verdict of acquittal.
Mrs. James Kennemore testified that she is an adopted daughter and that she came to visit her parents at the invitation of her mother; that at approximately 7:45 on the morning in question, she was awakened by the rustling of some papers. Shortly thereafter, she heard her mother say, "No, R.J., no," and a scream; then a shot was heard, and she rushed to the dining room where she saw her mother lying on the floor with her father pointing a pistol at her. She endeavored to divert his aim, but despite her efforts, he succeeded in firing two more shots into her body at which time she stated, "I'm done for. You are crazy. I'm done for." When she asked appellant why he did it, he stated, "She was stealing my money" and handed her a paper bag containing money with instructions to place it in the bank.
She further testified that appellant and the deceased appeared to be a devoted couple; that appellant prior to that time had given his wife gifts and deeded some property to her. She further testified that on Monday before the slaying on Wednesday, appellant and the deceased returned from town together and deceased was crying; that she heard appellant say that "if she would deed it back to him so he could deed it to me that it would be all right." To which the deceased replied, "R.J. leave it like it is, and I will pay the city and county taxes on it and keep it up. If I have to turn it back over to you, I won't."
Appellant called to the stand as a witness Dr. Harold P. Hope, of Union, who testified that he was the family physician and had known appellant for ten years; that in his opinion appellant was "mentally confused" and not able to distinguish right and wrong on December 9, five days before the slaying, and should have been sent to a mental institution as he was suffering from senile arteriosclerosis which would keep him from adhering to the right and his condition was getting progressively worse; but he refused to say that on the day of the slaying appellant was unable to tell right from wrong, a portion of his testimony being:
"Q. Well, can you tell me how sane a person would have to be to know right from wrong? A. I am afraid that is a technical point."
Dr. E.W. Long, a member of the staff of the South Carolina State Hospital, testified that appellant was committed to the South Carolina State Hospital, February 27, 1950, and released March 24, 1955; that he "felt he (appellant) definitely had a mental illness." A portion of his testimony being:
"Q. So then at the time you examined him it was your opinion that his knowledge of right and wrong was involved at the time, or his mental condition? A. It was deteriorated, yes, sir. His present condition.
"Q. Doctor, during the whole time he was there, is it your opinion he did not know right from wrong? A. It was my opinion that he was mentally ill, and that his reason and judgment was impaired accordingly, and that I did not think he was mentally capable of going outside and competing in every day life without a serious consequence of some kind.
"Q. And then from his condition you determined him insane, is that right? A. Yes, I think he was insane."
Dr. Long further testified that he first examined appellant on January 26, 1950, more than one month after the slaying and found him suffering from psycho cerebral arteriosclerosis but refused to give any opinion "as to Appellant's condition on December 14."
Upon being committed to the State Hospital, appellant was not confined to quarters or an enclosure of any kind but permitted the freedom of the grounds with instructions not to leave the grounds.
Dr. G.B. Carrigan, another member of the staff of the South Carolina State Hospital, testified that appellant was suffering from cerebral arteriosclerosis, with psychosis, when he examined him in February, 1950; and, in his opinion, the disease had existed for at least several months and that he would suffer from short periods of confusion when he did not know right from wrong. A pertinent portion of his testimony appears as follows:
"Q. Well, Doctor, that doesn't sound like a crazy man, does it? A. It doesn't sound like it.
"Q. But you are not attempting to say that on the 14th day of December, he did not know right from wrong? A. I am not trying to say it.
"Q. If he knew all of these things wouldn't he have known right from wrong, on December 14th? A. He may know right from wrong part of the day, and part of the day he can be confused and not know right from wrong.
"Q. Doctor, could there be any better evidence of insanity, than a man killing something he loved? A. ...