38 Cal. 183 | Cal. | 1869
The defendant was indicted for the murder of one Oliver, on the 26th of September, 1868. The indictment was found April 6, 1869, and was filed in the District Court May 6th of that year, and on the twelfth of the same month, the defendant was arraigned and pleaded ‘ ‘not guilty.” The trial commenced on the 28th of May, and the defendant was convicted of murder in the second degree. The defense relied upon was the insanity of the accused, at the time he com
Section 562 of the Criminal Practice Act is as follows: “ When a defendant has been held to answer a charge for a public offense, he may, either before or after an indictment, have'witnesses examined on his behalf, as prescribed in this chapter, and not otherwise.” The next Section (563) is in the following words : “When a material witness for the defendant is about to leave the State, or is so sick or infirm as to afford reasonable grounds for apprehending that he will be unable to attend the trial, the defendant may apply for an order that the witnesses be examined conditionally on a commission.” The succeeding sections contain minute directions in respect to the method to be pursued in obtaining, executing and returning the commission. Section 566, after providing that the application for the commission must be made upon affidavit, requires that the affidavit, amongst other things, must show “that the witness is about to leave the State, or is so sick or infirm as to afford reasonable grounds for apprehending that he will not be able to attend the trial.”
In the case of The People v. Dodge (28 Cal. 445), we held that the defendant in a criminal action is not bound to take the deposition of a sick or infirm witness who is within reach of the process of the Court, but may insist on his personal attendance, if it can be procured within a reasonable time, and that the Court ought to allow such reasonable time for that purpose, and that a continuance for one term with that view, was not unreasonable.
In that case, the absent witness was within reach of the process of the Court, and had been duly summoned, but was too ill to attend the trial. But, in this case, the absent witnesses reside in a foreign country, remote from the place of trial, and, of course, are in no wise amenable to the process of our Courts. The affidavit of the defendant is extremely vague and unsatisfactory. It does not state explicitly his belief that the personal attendance of the witnesses can be procured; but, as we construe it, he intends only to depose, in the alternative, that he can procure either their personal attendance or their depositions for the next term. If he knew when he made the affidavit that he could not procure their personal attendance, but believed in good faith that he could obtain their depositions for the next term, he could not-have been convicted of perjury on this affidavit. But if the
On the trial there was some evidence by the witness, Goodwin, tending to show mental aberration on the part of the defendant shortly before the time of the homicide; and the defendant moved the Court to charge the jury as follows, to wit:
First—“If you believe from the testimony that the defendant was affected with insanity at the time of his conversation with Goodwin, at Sawpit Flat, then the presumption of law is that such insanity continued until the contrary is shown.”
Second—“Insanity once shown to exist is presumed to continue until the contrary is shown. Therefore, if the defendant has shown that he was insane at any time before the act of killing, you will presume that he was insane at the tipie of killing, unless the contrary is shown. ”
This presumption would have no application to a temporary insanity, resulting from some transient cause. If a person be proved to have had, on a particular occasion, a paroxysm of mania a potu, or delirium caused by fever, or by sudden and severe mental agony, there would be no presumption that the same state of mind continued after the exciting cause was removed. On the contrary, the presumption would be that the mind was restored to its normal condition when the disturbing element had ceased to operate.
The instructions which were refused do not recognize this distinction. On the contrary, the Court was requested to declare the law to be, that if the defendant was affected with insanity at the time of his conversation with Goodwin, the presumption is it continued until the contrary is shown; and that insanity once shown to exist, is presumed to exist until the contrary is' shown. The vice of these instructions is, that they state the proposition too broadly. As we have shown, every species of insanity is not presumed to continue until the contrary is shown, but only a general habitual insanity, not proceeding from a transient cause; and if the instructions had been properly qualified in this respect, they ought to have been given. But in the form in which they were offered they were properly refused. Counsel insists,
The other point made by the appellant, we do not deem of sufficient importance to require comment. On the whole, we think the case was fairly tried, and the judgment should stand. If the defendant shall hereafter exhibit evidences of insanity, his case will doubtless receive proper consideration at the hands of the Executive; but, on the proofs at the trial, we do not perceive how the verdict could have been otherwise than it was.
Judgment affirmed.
Sprague, J., expressed no opinion.