The plea of not guilty by reason of temporary insanity is not a judicial admission that the defendant committed any unlawful act. Under a plea of not guilty the State must prove all elements of the offense charged. State v. Cephus, 239 N.C. 521, 80 S.E. 2d 147; State v. Harris, 223 N.C. 697, 28 S.E. 2d 232; State v. DeGraffenreid, 223 N.C. 461, 27 S.E. 2d 130.
After the State’s witness Jones had described the defendant’s acts and conduct immediately before he arose from the couch with the *127gun, he should have been permitted to say whether the defendant acted like a man not in his right mind. The State was attempting to make out its case by his testimony as to what the defendant did and said. He formed an opinion as to defendant’s mental state. The defendant was entitled to have the jury consider it. A lay witness, from observation, may form an opinion as to one’s mental condition Iand testify thereto before the jury. White v. Hines, 182 N.C. 275, 109 S.E. 31. Conceding the hypothetical questions were somewhat technically objectionable, there was enough of unusual and strange conduct shown by the witness Jones to raise the question whether the defendant had sufficient understanding to render his acts felonious. The court committed error in refusing to permit Jones to express his opinion. Assignment of Error No. 3 is sustained.
The additional charge given to the jurors after they had been unable to agree may well have been understood by them to mean that the only issue before them was whether the defendant had proved his insanity. On that issue the court further charged he has offered no competent evidence. Prior to the charge the jury had been unable to agree. Thereafter the guilty verdict was rendered. The. jury may have decided the defendant’s guilt solely upon the question whether he had proved his insanity.
For the reasons herein stated, the defendant is entitled to a new trial, and it is so ordered.