It was not contended on behalf of the defendant on bis trial in the Superior Court, nor is it contended on bis appeal to this Court, that the defendant, because of bis infirmity, was incapable of understanding the nature of the crime with which be was charged in the indictment, or the purpose and effect of bis trial. No plea involving bis capacity to plead to the indictment, or bis sanity was tendered by bis counsel. For this reason, the procedure approved by this Court in S. v. Harris, 53 N. C., 136, was not followed by the trial court. In that case, upon its finding that the defendant who was charged in the indictment with murder, was deaf and dumb, and upon the suggestion of bis counsel that because of bis infirmity be was incapable of pleading to the indictment, the court submitted issues to the jury involving bis capacity to plead, and bis sanity at the time of the trial. After bearing evidence pertinent to these issues and instructions by the court, the jury answered both issues favorable to the contentions of counsel for the defendant. the court thereupon declined to proceed with the trial, and ordered that the defendant be confined for safe keeping.
There was no error on the arraignment of the defendant in this action, nor in the acceptance by the court of bis plea of not guilty. The suggestion that bis negative answer to the question addressed to him by the solicitor, as to whether be was guilty or not guilty of rape and felony with which be was charged in the indictment, does not seem to call for comment. The negative answer of the defendant was properly accepted by the court as a plea by defendant of not guilty. C. S., 4632.
Assignments of error on behalf of the defendant, based upon exceptions to the admission or exclusion of testimony as evidence at the trial, have been carefully considered. They cannot be sustained.
"We find no error in the trial, and for that reason the judgment must be affirmed. Whether or not clemency should be extended to the defendant because of bis infirmity, cannot be determined by this Court. Under the Constitution of this State, that question must be determined by the Governor when and if it shall be duly presented to him for official action. See S. v. Jackson, post, 202.
No error.