1. Where a special plea of insanity (insanity at the time of trial), is sustained and the defendant is committed to Central State Hospital and later released to the sheriff of the county where the indictment is pending by the superintendent of that institution, it will be presumed that such prisoner is no longer in need of hospitalization for mental illness and that he is sufficiently recovered to stand trial for the offense charged.
(a) If the defendant seeks to again rely upon a defense of insanity at the time of trial, such intention should be made known to the trial court.
2. An attack upon the constitutionality of an Act of the General Assembly, or upon its application to the facts in a particular case, must be made at the first opportunity, and it is too late to raise such question after a guilty verdict has been returned by the jury.
The defendant was indicted, tried and convicted of armed robbery. A special plea of insanity (insanity at the time of trial), was filed and upon the hearing of such issue, by agreement of the State and counsel for the defendant, a verdict in favor of such special plea was directed. The defendant was then committed to Central State Hospital until discharged "in the manner prescribed by law" then to be returned to the Sheriff of Bibb County. After the defendant's release from Central State Hospital, he was brought on for trial, convicted and sentenced to twenty years imprisonment. The day following his conviction, the present appeal was filed. The conviction is enumerated as error because the defendant was never adjudicated sane after being adjudged insane on his special plea of insanity, and because of the overruling of the defendant's objection to the presentence hearing after the verdict of guilty was returned.
1. During the trial a question was raised as to whether the State had the burden of proving the defendant's sanity at the time the crime was allegedly committed. This question arose as a result of the former adjudication of insanity at the first trial, but no question was then raised as to "insanity at time of trial." In Flanagan v. State, 103 Ga. 619 (1) (30 SE 550)
, this court dealt extensively with the prisoner's right to demand only one trial upon a special plea of insanity and, upon the jury finding adversely to the prisoner, a later trial on such issue or a further delay because of the alleged insanity of the prisoner at that time is a matter in the sound discretion of the trial court. In Cardin v. Harmon, 217 Ga. 737
, 739 (124 SE2d 638
), the prisoner sought to raise the question of his sanity by a petition for a writ of habeas corpus filed within the time for filing a motion for new trial and it was held that such question could not be raised in that manner. It was there held: "The petition, although avoiding allegations that the prisoner was insane at the time of trial, and relying upon Code 38-118 for a presumption that insanity adjudged in 1953 continued because no court judgment had restored his sanity, even if enough to charge insanity, shows no more than a ground of a motion for new trial and not even that, if known at the time of trial. It thus shows no ground for the writ of habeas corpus, and the judgment dismissing the same on demurrer was not error."
The defendant was committed to the Central State Hospital upon the verdict on his special plea of insanity. The order committing him directed his return to the sheriff upon his release. Code Ann. 88-506.7 provides for the delivery of such a patient to a peace officer upon his release by the superintendent of the hospital when the patient prisoner is no longer subject to hospitalization under the guidelines set forth in Code Ann. 88-506.1, and it must be assumed, in the absence of anything else appearing, that the prisoner was not returned to the Sheriff of Bibb County until he was no longer in need of hospitalization for mental illness. This enumeration of error is without merit.
2. The sole remaining enumeration of error complains of the refusal of the trial court to sustain the defendant's objection to the pre-sentence hearing after adjudication of the defendant's guilt by the jury. This hearing was held under the provisions of the Act of 1970 (Ga. L. 1970, p. 949; Code Ann. 27-2534), and the attack made sought to have the Act declared unconstitutional as containing matter in the body of the Act that was not covered by the title.
Complaint was also made that inasmuch as the date of the alleged crime, as well as the date of the indictment, were both prior to the effective date of the Act, the trial court erred in applying the Act to the defendant and having a separate presentence hearing after the verdict of guilty was returned and before the jury prescribed the sentence he should receive.
It is well settled that such a question must be raised at the first opportunity (see Woods v. State, 222 Ga. 321 (1) (149 SE2d 674)
), and that if not so raised it is waived.
The record discloses that the defendant was served with a copy of the defendant's prior convictions, which the State intended to introduce into evidence under the authority of the Act the day before the trial began and no complaint as to such procedure was made until after the jury returned the guilty verdict.
The conduct of the defendant in waiting until after the verdict of guilty was received served as a waiver of the grounds of attack upon the Act which prescribed the procedure under which he was tried. This enumeration of error is without merit.