THE PEOPLE, Respondent, v. HARRY A. FRENCH, Appellant
[Crim. No. 4135]
In Bank
February 27, 1939
720
U. S. Webb, Attorney-General, William F. Cleary, Deputy Attorney-General, A. K. Wylie, District Attorney, and Herbert P. Welch, Assistant District Attorney, for Respondent.
SEAWELL, J. — The defendant was accused by an information filed against him in the Superior Court of the County of Modoc, this state, by the district attorney of said county, with having, on March 25, 1937, in said county, killed one Claude L. McCracken, a human being, with malice aforethought. The legal sufficiency of the information charging murder is not questioned. Upon arraignment he entered two pleas, not guilty, and not guilty by reason of insanity. The jury returned a verdict of guilty as charged in the information with respect to the plea of not guilty, which carried with it the imposition of the death penalty; as to the plea of not guilty by reason of insanity, the jury found the defendant to be sane at the time he committed the homicide. Judgment upon the verdict was pronounced imposing the death penalty and defendant has appealed from said judgment and from the orders denying his motion for a new trial.
There is no question as to the commission of the homicide by the defendant. The evidence shows without contradiction that the defendant drove in his automobile to the McCracken residence at about 7 o‘clock in the evening of March 25,
The defendant left the scene of the tragedy much as he went upon it, without speaking to anyone, and drove to the residence of Charley Chapman, knocked at the door, and as it was opened he pushed the gun toward him and said, “Shoot me, I have shot McCracken.” He made inquiry for “Aunty” Hazelton who had some years before occupied the premises. Mr. Chapman, who had known the defendant
George M. Kelley, a deputy sheriff, in answer to a call, arrived at the Chapman home a short time after the sheriff‘s office was notified by Mr. Chapman of the shooting. He found the defendant seated in a chair. He had seen the defendant twice before on the day of the homicide, once at 10 o‘clock in the morning at a barber shop and once in the afternoon in a building he was unable to recall. Mr. Kelley said he was too excited to remember all that was said but he recalled the defendant said he had shot McCracken at the latter‘s home. He said his car was in the neighborhood. Deputy Sheriff George Kelley then asked him how the gun might be unloaded and the defendant said he didn‘t know anything about it. Mr. Kelley asked him how he was able to shoot if he didn‘t know how to unload it and the defendant replied that he “pulled the trigger“. He thought he had shot McCracken three times. Asked why he had shot the deceased he said: “I am sorry, George.” On the way from Chapman‘s house to the sheriff‘s office the defendant said: “There is some things people can‘t stand, George. I just stood more than I could stand.” In this connection he said something about his mother and baby. Kelley called
At the time of said homicide, the defendant was twenty-seven years of age. He was married in 1931, and a son was born as the issue of his marriage, January 5, 1935. The defendant, his wife and child had, for a period, resided across the street from the deceased during the continuance of their acrimonious business and newspaper rivalry. He had resided with his parents at Alturas, Modoc County, from infancy to the time of his marriage. He had attended the grammar and high schools of Alturas. A special course in business at Oakland, California, seems to have concluded his scholastic training.
R. A. French, and Mrs. Gertrude P. French, parents of the defendant, were, and had been since 1910, publishers and proprietors of the Alturas Plaindealer, a newspaper printed and circulated in Modoc County. R. A. French was the business manager, and his wife, Gertrude French, was the editor of said newspaper. During and since his school days, the defendant was continuously associated with his parents in the publication of said journal. He had worked in every department of the Plaindealer, including the mechanical, news and business departments. At one time he was the advertising manager. In 1933 the defendant was appointed a minute clerk of the state senate and he and his wife spent several months at Sacramento. Thereafter he resumed his connection with the Plaindealer. On September 1, 1933, he was appointed by the state board of equalization a sales tax collector, auditor and enforcement officer in the tax sales division which included Modoc and a portion of Lassen County. He was holding this position at the time he committed the homicide of which he stands convicted. At all times he has maintained general headquarters at the Plaindealer office. Being a long established journal, the Plaindealer doubtless had more or less prestige in the
In 1934, and prior thereto, Mr. McCracken was in the employ of the Modoc County Times. The Plaindealer, in December, 1934, absorbed the Modoc County Times, which was then published and owned by C. D. Fitzpatrick and edited by Mr. McCracken, and annexed to the name “Alturas Plaindealer“, the name “Modoc County Times“. Adopting the practice of counsel, we will continue to refer to said newspaper merely as “Plaindealer“.
Mr. McCracken then being without employment, began the publication of the Modoc Mail, which was first printed at Lakeview, Oregon, situated a short distance across the state line, and circulated in Modoc County. Publication of the Modoc Mail was suspended in April, 1935, and resumed by Mr. McCracken in August, 1936, at Alturas, Modoc County, under its former name. In December of that year Donna Conwell, referred to herein as seated at the dining table in company with Evelyn Olen and McCracken at the time defendant fired said shots, purchased a partnership interest in the Modoc Mail and her name was announced in the Mail as one of its owners and publishers. The paper was published bi-weekly and in form contained eight pages, 13x8½ inches in dimension, and was a mimeographic print. It purportedly printed the local and general news and carried display advertisements in the form and fashion, but lacking the mechanical clearness and attractiveness, which characterizes the products of the modern printing press. Mr. McCracken and Donna Conwell were associated in the publication of the Modoc Mail to the time of the former‘s death.
It is one of the contentions of counsel that the defendant at the time he committed the homicide was in a “muddled and deranged condition of mind and the emotions controlled his actions, and that he acted self-conscious only of a moral justification of his act“. The obvious fallacy of the proposition is that it would not have constituted a defense to a charge of murder under the law of this state even if the suggested psychological phenomena had in fact existed. It was necessary to go further. The burden was upon the defendant to prove by a preponderance of the evi-
Moreover, it has long been the settled law of this state that neither emotional, moral nor partial insanity nor insane delusion nor hallucination, nor the irresistible impulse theory (the accused being conscious as to the nature and quality of his act and that it was wrongful and punishable by law), affords grounds in this state as the basis of a defense or as an excuse for the commission of a homicide. (People v. Nihell, 144 Cal. 200 [77 Pac. 916]; People v. Kerrigan, 73 Cal. 222 [14 Pac. 849]; People v. Hurtado, 63 Cal. 288; People v. Worthington, 105 Cal. 166 [38 Pac. 689]; People v. Harris, 169 Cal. 53 [145 Pac. 520]; People v. Ward, 105 Cal. 335 [38 Pac. 945]; People v. Trebilcox, 149 Cal. 307 [86 Pac. 684]; People v. Ebanks, 117 Cal. 652 [49 Pac. 1049, 40 L. R. A. 269]; People v. Willard, 150 Cal. 543 [89 Pac. 124]; People v. Troche, 206 Cal. 35, 46 [273 Pac. 767].)
Appellant‘s basic defense to the act of killing, and particularly the contention that the case was not one in which the extreme penalty of the law should be imposed, is stated in condensed form in the following paragraph of his brief:
“It was, as claimed by the defense, the long continued and persistent system of libelous insult and personal abuse of the defendant‘s family, as well as of himself, which produced and brought about such a mental condition of the defendant, that he was incapable of the cool deliberation and intent essential to constitute murder in the first degree, or any degree. Certainly not that cool, deliberate premeditation and complete consciousness of the wrongfulness of his act essential to justify a jury in rendering a verdict of murder of the first degree without fixing a penalty of life imprisonment.”
The defendant offered no evidence which would tend to justify or excuse the homicide as provided by any of the subdivisions of
A number of said articles denominated as “provocative” of the homicide by counsel for the defendant, were admitted at the trial of the main issue and practically the contents of all of them in one form or another where materiality was discernible, were called to the attention of the jury on the trial of the issue of insanity. The court, in every instance but one, during the trial of the first issue, instructed the jury that said newspaper articles were not received as supplying grounds upon which the jury might wholly relieve the defendant of the consequences of his homicidal act, but said articles were submitted for their
Counsel for the defendant insisted throughout the trial and insist on this appeal that all of said articles were admissible on the main issue as being highly provocative and aggravative in nature, inasmuch as they had created in the defendant an undefinable mental disturbance which swept him on as by irresistible impulse to avenge wrongs which in his mental state appeared to him to be immedicable to relief save only by the slaying of the author.
On the first or main issue the defense offered no substantial evidence which tended to justify the homicide as prescribed by the subdivisions of
The defendant further testified, that he had been thrown into fits of anger by his mother informing him of receiving telephone calls from the deceased and by letters she had received from deceased which were shown to him or their contents related to him and which caused her great mental grief. The most denunciatory and malicious of said letters which it was claimed deceased had written to Mrs. French were not produced but were said to have been destroyed. Said destroyed letters were claimed to have been exceptionally libelous and indecent, one of which in particular assailed the chastity of one of Mrs. French‘s daughters. This letter was not called to the attention of the federal or state authorities. The reason for not doing so, the defendant testified, was that other libelous matter had been called to the attention of the U. S. Postal Department and he had been advised that the letter did not contain any threats to commit an offense and therefore no criminal charge could be lodged against the author. All of said lost or destroyed letters, the defendant testified, were intended to injure and insult members of the French family, and in particular Mrs. French, as editor of the Plaindealer, and R. A. French, her husband and business manager. One of the newspaper articles which the defendant named as having caused him the
The testimony of the defendant considered by itself, or in connection with the evidence as a whole, makes it very plain that the controversies which had been waged by the opposing parties had developed into a settled feud and that growing feelings of enmity and ill-will reached their climax on March 25, 1937, as the defendant observed on the cigar
It appears to be in order at this point to consider whether the acts of the deceased which are claimed to have been the cause of defendant‘s alleged insanity were admissible on the trial of the issue of not guilty on the theory that knowledge of said acts tending to establish insanity would materially assist the jury in the exercise of its discretion as to which of the two punishments prescribed by
“It follows, therefore, that any evidence tending to establish the insanity of the defendant under his plea of not guilty by reason of insanity at the time of the commission of the homicide, other than evidence of the immediate circumstances of the offense, would have been irrelevant and immaterial on the trial of the general issue as to the guilt or innocence of the defendant raised by the general plea of not guilty. As the statute accorded the defendant his full right, and ample opportunity to submit to a jury his plea of insanity at the time of the commission of the offense, in excuse of his act and as a reason why no penalty of the law should be visited upon him, it follows that the trial court correctly excluded the evidence on the trial of the general issue.
“Furthermore, the only evidence admissible for the purpose of enabling the jury to determine whether the death penalty or life imprisonment should be imposed in the event the defendant should be found guilty of murder in the first degree was the evidence which the court did admit, and which concerned ‘the circumstances connected with the offense‘. (People v. Golsh, 63 Cal. App. 609, 613 et seq. [219 Pac. 456]; see, also, People v. Witt, 170 Cal. 104, 110 [148 Pac. 928].) The insanity of a defendant cannot be used for the purpose of reducing his crime from murder in the first degree to murder in the second degree. If responsible at all in this respect, he is responsible in the same degree as a sane man, and if he is not responsible at all he is entitled to an acquittal in both degrees. (State v. Maioni, 78 N. J. L. 339 [74 Atl. 526, 20 Ann. Cas. 204].)”
For other cases on the point we cite the following: People v. Leong Fook, 206 Cal. 64-71 [273 Pac. 779]; People v. Perry, 195 Cal. 623 [234 Pac. 890]; People v. Hurtado, 63 Cal. 288. In this state, so far as “accountability to the law is concerned there is no middle ground.” (People v. Perry, supra: People v. Troche, supra, and cases therein cited.)
Partial insanity is not sufficient alone to excuse the commission of a homicide. “In order that ‘insanity may be available as a defense to a crime charged, it must appear, that the defendant, when the act was committed was so deranged and diseased mentally that he was not conscious of the wrongful nature of the act committed‘.” (People v. Troche, supra.) Every act of the defendant both before, at the time
Another kindred question pressed by appellant is that the verdict of the jury should not have been higher than murder of the first degree fixing the punishment (in the exercise of the jury‘s discretion) at confinement in the state prison for life. The argument advanced in support of the contention that mental deficiency or certain types of mental deficiencies or disorders which the law does not recognize as an excuse for a criminal act, although not legally sufficient to exempt the accused from punishment, may, nevertheless, be considered by the jury as a circumstance warranting mitigation of the punishment which the law would reflect if no mental infirmities existed, finds no favor in the law of this and other jurisdictions. It was the theory of defendant at the trial, and is here, that it was proper to admit evidence which bore upon the feeling of mutual contempt, dislike and ill-will which the respective newspaper rivals held for each other as expressed in their respective publications, and shown in other ways. This evidence, appellant claims, was properly admissible for the jury‘s consideration on the issue of not guilty. Rather, it may be suggested that this evidence tended to show motive on the part of the defendant. (People v. Hurtado, supra.)
An insane person is a person incapable of committing crime. (
Under the general plea of not guilty, prior to the amendments of the statute, evidence relevant to the issue bearing upon mental competency but which had no relevancy to the issue of not guilty, was presented to the jury under the plea of not guilty and there is reason to believe that in many cases evidence as to mental competency in its almost illimitable field of exploitation had the effect of over-exciting the emotions of jurors by the introduction of matters not relevant to the question of guilt, to the extent of mitigating punishment in cases where it was not merited. Under the former system two issues were submitted in a single action. The intermingling of these issues provable by different degrees of proof may have caused some confusion in the minds of the jury. To remove such a possibility, as well as to prevent the jury from being influenced by matters which were solely relevant to the issue of insanity, may have constituted considerations which account in a measure for the changes made in the statute.
As to the admissibility of the questioned evidence, under the statute prior to said amendments, this court in People v. Jamarillo, 57 Cal. 111, announced the rule with respect to the jury‘s right of discretion in precisely the language approved in People v. Perry, supra; People v. Troche, supra; People v. Hall, 199 Cal. 451-456 [249 Pac. 859]. In the Leong Fook case, supra, this court, in commenting upon the exercise of discretion accorded the jury, cited the case of People v. Witt, 170 Cal. 104, 111 [148 Pac. 928], and called attention to the limitation placed by the Witt case upon the rule announced by the Jamarillo case. In the Witt case the issue of insanity was not made a specific issue. The evidence offered and refused admission did not include any of the facts and circumstances connected with the commission of the offense, but consisted solely of evidence relevant to the character and previous habits of the defendant. Justice
It is convincing from the statutes themselves which specify the grounds upon which homicide is justifiable or excusable and from the decisions of this court that it was never the intention of the law that the two issues should be so commingled as to confuse the jury in its effort to obey the rules of law. The discretion which the jury may exercise must be determined from the facts and circumstances attending the commission of the offense. “Such other reasons” mentioned in the cases above cited must mean those which appear upon a consideration of the facts and attending circumstances relevant to the commission of the homicide, in short, the res gestae, and not stale, extraneous facts and circumstances which transpired two years or more before the homicide and which could not have “attended the commission of the offense“, nor tend to justify or excuse it. But whatever argument may be made in support of appellant‘s views the question has been definitely settled by the provisions of
There would be but little merit in appellant‘s contentions if the law were as he contends it to be since many of the newspaper articles and provocative acts which counsel for appellant contends disorganized his mental powers to the extent that he was rendered irresponsible for his act, were admitted over the objections of the prosecution made on the grounds that said evidence was self-serving, hearsay and immaterial to the issue being tried. The offers which were admitted were representative of those excluded and the latter could have added nothing to the evidence which though erroneously admitted inured to the benefit of the defendant in support of his contention that it might be considered in mitigation of the punishment. In view of the evidence given by Mrs. French and several members of her family and published articles, letters and writings introduced by the defendant,
Some question is raised by appellant as to the sufficiency of the proof to support a finding that the homicide was committed in the county of Modoc.
The sufficiency of proof as to venue cannot be seriously questioned as it appears from the testimony of several witnesses that the homicide was committed at the home of the deceased, located at Alturas, county of Modoc, this state. This court will take judicial notice that Alturas is the seat of government of Modoc County, a political subdivision of the state. This proposition is too well settled by the authorities to require more than passing mention. Besides proof is ample from many sources that the deceased was killed in the McCracken home and that the McCracken home was located at Alturas, California. The map or plat offered in evidence descriptive of the McCracken premises, together with the illustrative testimony of the county surveyor, lays the venue beyond question in Modoc County.
Objection was made to the introduction of photographs in evidence showing the relative places or positions which Mr. McCracken and the two ladies occupied at the table at the time of and during the shooting, and also to X-ray photographs taken of the body of the deceased showing the point of entry of the bullets. The order in which the parties were seated at the time the defendant entered the dining room has never been questioned. A photographic illustration of the positions or order in which they were seated could in no way have prejudiced the defendant with respect to a matter which is not disputed, but which, on the contrary, has been seized upon by the defense as a circumstance so wanton in execution as of itself to give support to the issue of insanity. Absolutely no claim can be made that the shots were fired in self-defense and therefore a photograph of the room and the relative positions of the parties could not possibly have prejudiced the defendant. Likewise, the admission of two X-ray photographs showing the courses which the bullets took after entering the body could not have been prejudicial, if erroneous. The autopsy physician had described the wounds to the jury and the jury knew that the entry of the
The situation is unlike a case in which the proof as to whether the defendant committed the act charged presents a close question. In such cases immaterial or irrelevant matters of a highly emotional or prejudicial character may so seriously tend to degrade and disgrace the accused in the eyes of the jury as to render it less considerate of his defense than it would have been had the prejudicial and degrading evidence been excluded. Where such situations are shown to exist, retrials must be granted, but here nothing is shown by the photographs which tended to establish a single controverted fact. The defendant claims that the photographs must have had very great influence upon the jury‘s deliberations from the fact that after retiring to deliberate it returned some time thereafter and asked for and was permitted to take said photographs to the jury room. The fact that said photographs were the only exhibits requested and eleven hours after receiving the exhibits the jury returned a verdict of guilty, is of no special moment. The jury entertained no doubt as to who killed McCracken. Their task was to determine whether the killing was done wilfully, deliberately and with malice. Contention that an inspection of said photographs did or could have inflamed the jurors’ minds to improperly impose excessive punishment is too insubstantial to merit further consideration.
At the trial appellant adopted and urges here a three-fold defense, to wit: First, that the articles published in the Times
It is the law, so long and firmly established in this state that no words of insult or reproach, however grievous, will justify an assault or threatening demonstration with a deadly weapon, that it will suffice merely to make reference to a few of the cases.
“Nothing is more surely calculated to arouse the blood of some men to a heat of passion than grievous words of reproach, yet no words are sufficient provocation to reduce an offense from murder to manslaughter and this principle is so well established in this state that discussion would be out of place.” (People v. Bruggy, 93 Cal. 476 [29 Pac. 26]; People v. Turley, 50 Cal. 469; People v. Manzo, 9 Cal. (2d) 594 [72 Pac. (2d) 119].)
This rule thus early announced as the law of the state has never been departed from. In People v. Jackson, 78 Cal. App. 442, 448 [248 Pac. 1061], the rule was again stated in the following language:
“In considering what is regarded as such adequate provocation, it is a settled rule in law that neither provocation by words only, however, opprobrious, nor contemptuous, or insulting actions, or gestures without an assault upon the person . . . are of themselves sufficient to reduce the offense of an intentional homicide with a deadly weapon from a murder to manslaughter.”
The jury, in the instant case, found upon overwhelming evidence that the killing was intentionally committed with a deadly weapon. The jury impliedly found that the killing was done with premeditation and deliberation and that the intent was formed without the presence of the deceased, and that quite an appreciable period of time intervened between
The act of killing may follow the intent to kill as rapidly as follow the successive thoughts of the mind.
The court did not in any way limit the jury‘s consideration as to the degree of punishment it should impose. It merely limited its consideration of the so-called provocative evidence which was not material to the issue of not guilty to the single question as to whether it was sufficiently provocative as to justify a reduction of punishment should they find the defendant guilty of first degree murder. In all other respects the jury was given absolute and unrestrained freedom to return such a verdict as the evidence in their judgment would warrant. In fact the court instructed the jury that it might find the defendant guilty of murder of the first degree, imposing life imprisonment or the death penalty at its discretion; guilty of murder of the second degree; or manslaughter or not guilty. Murder and manslaughter were fully covered by the court‘s charge. Absolutely no fair or reasonable claim may be made that the jury was not free and untrammeled in the exercise of its judgment as to the degree of crime of which the defendant should be held guilty, if any. In fact, in its final charge on the trial of the general issue of not guilty the court in not less than three instructions told the jury it was its duty to consider the provocative evidence as bearing on the question as to whether or not it rendered the defendant “incapable of the deliberation and premeditation necessary to constitute malice aforethought.”
Instruction No. 12 reads as follows:
“Provocation, as the term is used in law, means that treatment of one person by another which arouses passion and anger. In cases of homicide it negatives the idea of malice and premeditation because the hot blood engendered by provocation produces a temporary suspension of the reflective faculties, and the passion aroused excludes the idea of deliberation. Therefore, evidence tending to establish provocation may be considered by you, and if, after due consideration of such evidence you should entertain a reasonable doubt
as to whether there existed at the time of the homicide in the mind of the defendant the malice, deliberation and premeditation essential to constitute the crime of murder, it would be your duty to acquit the defendant of that charge.”
The above instruction and Nos. 11 and 13 opened the door wide for the consideration of the so-called provocative evidence for all conceivable purposes and leaves appellant no possible grounds for complaint.
Counsel for appellant rest their defense on the psychopathic condition of the defendant which it is claimed had its origin in the attachment and deep-seated affection for his mother from early infancy. They argue that an increasing devotion to his mother‘s well-being developed in him a sense of filial solicitude so overmastering that her cares became his cares and he became grieved to an inordinate and exaggerated degree whenever his mother manifested the slightest unhappiness. It is not contended that he was afflicted with general insanity, but it is claimed that his peculiar type of mental structure was overthrown by what he regarded as the unpardonable acts of McCracken and he acted on the impulse that he was justified in taking the life of McCracken. It is also contended that he was moved by an irresistible impulse to his act. Much of the newspaper controversy had no personal reference to the defendant but was directed to the policy of the Plaindealer and chiefly at Mrs. Gertrude French, its editor, with occasional thrusts in the nature of satire, lampoonery, or burlesque mention of the defendant, and Barr French, his father, and Jim Payne, his uncle, all of whom were in the public service. Occasional references were made to other members of the French family.
Mrs. Gertrude French, mother of the defendant, was called to the witness chair and the foundation was laid for the introduction of a long list of newspaper articles which appeared in the Times and Mail during a portion of the year 1934 to and including March 24, 1937. The same objections were made to this class of evidence as was made to the testimony of witness Hopfield, the first witness called by the defense, with the added grounds of hearsay. The objection was overruled and she testified to a great number of published articles and acts which she asserted were intended to humiliate her and to reflect on the good repute of the French family. Among other things, she testified that at some time in 1934 McCracken called her on the telephone and said,
Upon calling its first witness the defense sought to show by Frank Hopfield, former editor of the sports column of the Plaindealer, that Hopfield in April, 1935, acting as a voluntary conciliator sought to make peace between the heads of the two newspapers but McCracken declared his determination of carrying the strife to a final conclusion. The prosecution objected to the admission of the line of evidence which had to do with newspaper publications or personal criticisms communicated by letters or telephone on the grounds that such evidence was irrelevant, incompetent and inadmissible as to the main issue, not guilty. The court ruled that while such evidence could not be deemed sufficient to justify the homicide the jury was entitled to consider it in mitigation of punishment. The court thereupon instructed the jury as follows: “In other words, if the jury finds the defendant guilty of murder in the first degree they can take into consideration such evidence for the purpose of mitigating the punishment and recommending life imprisonment instead of the death penalty.” The witness then proceeded to relate a conversation he claimed to have had with McCracken in April, 1935, approximately two years before the homicide, in which he asked McCracken why he didn‘t leave the Frenches alone and advised him that he, McCracken, having recently come into the community “should try to get along with people instead of using the tactics that he did“. McCracken replied that “he was out after their hides” and he would not “lay off” until he “broke them“. The witness said he communicated these words to Mr. and Mrs. French, the proprietors of the Plaindealer.
Mrs. Gertrude French testified at great length and most of the testimony which she gave was of the type referred to by counsel as “provocative” of the homicide. Much of it was trivial and consisted of passing quips and paragraphs written in the style of the columnist under heading such as “Around The Town“, “This ‘N That“, or under headings cleverly phrased to catch the reader‘s eye. Among the published articles which Mrs. Gertrude French and appellant stress as being exceptionally provocative and as tending to disturb the mental balance of the mother and son was an editorial published in the Mail February 15, 1935. This issue was one of the earlier publications and indicated the policy which the paper would pursue. The editorial stated that “certain citizens with the welfare of the community at heart requested the writer . . . to establish an independent newspaper in the county. Immediately the forces behind the other alleged newspaper began throwing cat-fits with the peculiarities common to the feline breed.” Among the things promised its readers were that the editor “will never grow so large that we believe we are God“. Another promise was that the paper “will seek to never be carried away by chance of political advancement for ourselves or our relatives, to the extent that we will sell out the interest of the people of Modoc“. No worthy cause will be without a champion and no wrong will go unopposed. “If a man bites a dog in Kankakee County that is news in Kankakee but we do not intend to run a temperature over it here. . . . We intend to try to carry a complete account of the doings of Modoc County people—each article will not injure some one. We shall seek never to diagnose the reason for a woman having a baby as due to the fact that she was a victim of an automobile accident a short while before.”
The following excerpt is taken from a published article of April 5, 1935:
“A weekly circular, published in Alturas, piqued because it, in its guise of a newspaper, had missed forty news items . . . which were published in the Modoc Mail last week published a tirade of misinformation about the Mail editor. Thanks, Gertrude, for the ‘free advertising’ which you de-
clined to give us last spring. If you believe you can throw enough mud in your columns to dust over the eyes of the public enough that they overlook the fact your circular is devoid of news . . . then you are entitled to practice the sort of tactics in which you seem to enjoy to indulge yourself.”
Article of December 11, 1936:
“. . . Mrs. Gertrude P. French appeared before the Board of Supervisors . . . to protest the payment of a claim of $16.97 to the Modoc Mail. The claim was for printing the report of the grand jury. It was published by court order. . . . The Plaindealer had a claim for $19.00 for the same job. The Mail did not protest it . . . The Modoc Mail is not desirous of seeing the Plaindealer people go hungry. . . . If and as when we become a meddlesome old lady we shall endeavor to protest items our competitors claim. Until then we will stick to our knitting. Inasmuch as there will perhaps be ample time later for Gertrude to sob over bruised pride, her tears at this point leave us singularly unaffected.”
April 5, 1935, the following matter appeared in the Mail, under the heading of “Panaceas and Painkillers.” Mrs. Gertrude Payne French is a daughter of H. G. Payne and a sister of Harry L. Payne commonly called Jim Payne. All resided at Alturas, were active in community affairs, and were closely united by family ties. The above alliteration was a play on the family name Payne. The author of the article wrote that he always believed “that a person addicted to grandiose ideas . . . always suggested . . . that anything couldn‘t be done . . . without their aid . . . One of our modern painkillers . . . in Alturas . . . you know who I mean . . . has always insisted . . . that it was in business . . . because of some God-given right . . . which accidentally precipitated . . . the perpetrators of this rag . . . into this region . . . a hundred years ago“.
September 8, 1936:
“Some folks are wondering if Sales Tax Harry is French, Latin or Greek. One more cent please.”
A matter to which publicity was given by the Mail on several occasions in 1935, and which was bitterly resented by the owners of the Plaindealer and the French family, consisted of a statement which R. A. French, business manager of the Plaindealer, was charged with having made with re-
The several announcements published by the Mail in 1935-1936 that there was definite assurance that at least two newspapers were to enter the field at Alturas, which had “suffered from lack of newspapers” in the past, accompanied by warm words of welcome were offered as provocative and exasperating conduct on the part of the editor of the Mail.
The following “Open letter to a well wisher“, appeared Oct. 9, 1936, and is listed as one of many grievances which justified the homicide or rendered it excusable on the grounds of insanity. It reads:
“Dear Gertrude: I understand that you have been having trouble with your bird cage. I am mailing you the Mail. It is thicker than the paper you edit. Perhaps if you fold it and are careful, you might utilize it in the bottom of your bird cage until the next time we publish, at which time you will be at liberty to clip out all news you had previously overlooked and publish same for your new clientele.
Thank you for your courtesy.
L. & K.
CLAUDE.”
It is claimed the letters L. & K. were intended as abbreviations for Love and Kisses, and that same was meant as an insult to Mrs. French.
In an undated letter to her he said:
“You just can‘t keep that tongue of yours telling the truth, can you? . . . Another funny one regarding the noncommittalness of Councilman Morgan, on the closing of
gambling. Did it ever occur to you that it isn‘t quite cricket to ask a public official why the law is being enforced? I wish to apologize to Bard. (Her husband.) I came down town Thursday with a dirty shirt on and was mistaken for Bard by at least three persons. “Love and Kisses
“CLAUDE L. MCCRACKEN.”
McCracken was the local representative of the United Press and the Associated Press. It is clear from the record that the Plaindealer had challenged the accuracy of the news he had sent by wire to the press from Alturas. He wrote several sharp letters to Mrs. French charging her with wilful misrepresentations as to the accuracy of several of his news items. Her action, he claimed, was actuated by a desire of discrediting him with the managers of the news service as a correspondent. The following letter, dated January 23, 1936, addressed to Mrs. French, admitted in evidence, is claimed to have been a source of great mental disturbance to her and to the defendant:
“My dear Gertrude:
“Here is a letter to the editor which you will not print because it isn‘t a bouquet.
“In your last issue you made the assertion that one ‘overzealous’ reporter sent the report to the press that Alturas was under water, etc., etc. Now, Gertrude, you shouldn‘t have done that, because when you did you uttered and published a malicious lie, wholly without foundation, in fact, something you might have verified by asking a few questions before rushing into print. I have no scruples in calling a woman (notice I didn‘t say a lady) a liar, so I hereby notify you that you are an unscrupulous, infamous, notorious and utterly indefensible liar. I might sue you for libel, but a judgment against you would be worth about as much as six bits in confederate money. I really shouldn‘t waste my time calling you on this because you can‘t get as little a thing as the appointment of Dr. John Stile as Superintendent of the hospital correct when that appointment is published on the minutes of the Supervisors. I naturally assume that you are accustomed to popping off your mouth without regard to truth.
“You may consider this a written notice to you to keep my name, or any reference to me, out of that sheet you erroneously term a newspaper.
“I am also signing this with a salutation you can‘t imitate.
“Yours truly,
“CLAUDE L. MCCRACKEN.”
Before closing consideration as to the admissibility of said articles offered on the issue of not guilty, all of which we have held to be inadmissible, with the possible exception of those published in three or four successive issues immediately preceding the homicide, about which the defendant testified, it may be proper to consider the following article, which appears to have been denied admission on the first issue but which was admitted on the insanity issue. The erroneous admission of evidence similar in character did not affect the rule of law as to what may constitute legal evidence. The errors made redounded to the defendant‘s benefit. Said article is marked defendant‘s exhibit “J” and was published on December 27, 1934. It follows:
“AROUND THE TOWN
“Getting subscriptions for the Times is pleasant work . . . listen to the story told by a young matron . . . The climax was nearing . . . I knew what was coming but I was putty in his hands . . . did not have the power to stop him . . . should I accede to his desires? . . . I listened to his passionate appeals and felt weak . . . I was but a woman alone and with no one to keep me company . . . what should I say? . . . I tried to get a grip on myself . . . How could I say no to the poor boy . . . Suppose I did as he wished . . . who would know? . . . Harry was away . . . Nevertheless I felt weak . . . All right boy . . . I almost whispered . . . I‘ll subscribe for your paper’ . . . ”
The defendant testified that the article could have referred to no one else but his wife and himself as there was no other young matron in the town whose husband‘s name was Harry who was likely to be away from home a great deal of the time, and that the article was intended as a slur on his wife. The above article, if intended in the venery sense which it seems capable of interpretation, is by far the most reprehensible and the least defensible of any of the articles which appeared in print. It was, however, printed more than two years prior to the homicide and if the particular article was
Mrs. Gertrude French testified that some time prior to March 4, 1937, McCracken called her on the telephone and told her that he was going to start a guessing contest department in the Mail so “blase” that the people would not know who was meant by the names used, but she would be the subject of the story.
On March 4th the following advance explanatory article appeared in the Mail:
“Contest Department. We announce . . . that we‘ll start a contest soon . . . to determine a few names . . . in a story so blase . . . it might be titled . . . quote . . . It can‘t happen here . . . unquote . . . but we laugh . . . and we feel you will . . . and maybe you‘ll guess . . . the names of the parties . . . to whom we will refer . . . I‘ll start Monday . . . in the Modoc Daily Mail . . . and it‘ll be continued . . . until it is guessed . . . don‘t miss it . . . ”
As a part of the announced plan the following articles appeared, the last being published on the day preceding the homicide:
March 20, 1937: “Mayor William J. McCracken of Oakland announces his city will be ready to receive the entire world at the big world‘s fair in 1939.”
“Cecil Payne, the murderer of the Chief of Police of North Sacramento is appealing for clemency from the penalty of death under which he is sentenced.”
March 22d: “T & WA Manager William P. McCracken shows that air passenger travel miles were safer last season than ever before . . . N. H. French, a former employee of the state, is trying to keep from being convicted of accepting a bribe in Los Angeles.”
March 24th: “The last man hanged for horse stealing in Teton County, Montana, was named Burr French. . . . Former Congressman Robert McCracken of Teton, Idaho, observes his sixty-seventh birthday today. . . . He was once a nominee of the Republicans for Governor of that state. . . . He was no relation to the Modoc Daily Mail editor.”
The last several issues of the paper were published daily. The publication of these latest articles was stressed by the defendant as being the exciting cause of his act in that they aroused in him a feeling of great indignation and urge for retribution.
Besides the many articles admitted in evidence at the trial of both issues, Mrs. French claimed to have received a number of letters from McCracken which attacked the moral character of her daughters and tended to defame and degrade the French family and the relationship, which appears to have been numerous in Modoc County. She was unable to produce any letters except those which were received in evidence or marked for identification. The only letters which she produced included the one set out in full herein and a few others which were in the nature of personal rebukes arising out of newspaper competition. The defendant testified that quite some time prior to the homicide, during 1936, he opened his mother‘s desk and by chance discovered four or five letters which she had laid aside. He read them. He said they were of the type described by his mother and contained charges of immoral conduct on the part of his sisters. Both Mrs. French and the defendant testified that they took one or two of the letters written by Mr. McCracken to the district attorney with the purpose of proceeding criminally against him, but the district attorney advised against criminal action as he was doubtful as to the contents of the letters amounting to criminal libel. He also advised that a conviction would be unlikely in cases where the cause of action was an inseparable part of a prolonged newspaper quarrel in which the publishers of rival newspapers had written their worst against each other. Mrs. French said she and the defendant took one of
It appears in the testimony of the defendant that the tires of his automobile were cut in 1935 and he became suspicious upon investigation that McCracken was guilty of the offense. He made complaint to the district attorney, who, after investigation, advised against the filing of a complaint charging McCracken with the offense. It appears that other acts of tire cutting had occurred at Alturas about the same time and the Plaindealer had published articles severely condemning the persons engaged in this kind of vandalism. Mrs. French testified to an incident of a man presumably peeking through the window of her bathroom while her daughter was taking a bath, and upon being discovered said person ran from the scene. Her informer who claimed to have seen the act was unable to positively identify the man in the darkness. Mrs. French was of the belief that it was McCracken. She related another incident in which she said McCracken fired shots or set off some kind of explosives over her head, and “laughed and laughed” at her consternation. On the other hand, McCracken in an issue of his paper published March 29, 1935, printed a part of an anonymous letter written to Mr. McArthur, presumably a financial backer of McCracken, in which the writer advised Mr. McArthur to withdraw his support from the Mail, giving his reason therefor. McCracken in a published comment on the style and phraseology of the letter and the paper on which it was written intimated that the Plaindealer was the source and inspiration of the anonymous letter. Another letter written to McCracken and threatening him with “a long ride” if he didn‘t lay off the tax question was credited to the same source in a printed article.
The Plaindealer contended that the dissolute revelries in which intoxicated Indians indulged was chargeable to the inefficiency of the sheriff‘s office while McCracken charged
Mrs. French, defendant and one or two of his intimate friends testified that the defendant had expressed himself on several occasions as entertaining fears that McCracken might kidnap or injure Bobby, his young son. Mrs. French testified that on one occasion McCracken warned her that something might happen to him. She also said that he once telephoned her that the defendant would not be home that night as he had been arrested on a charge of embezzling public funds.
A large mass of the so-called “provocative” evidence, not specifically referred to herein, arose out of events that transpired in the year 1935. Much of it is not only exceedingly remote but was irrelevant and immaterial to any issue in the case except possibly as to insanity in some instances. All of it was offered by the defense and that which was admitted went to the jury for consideration on whatever theory the defense chose to adopt, not inconsistent with the law of homicide.
We now come to a consideration of the things that occurred a few hours before the killing. The defendant was a member of the 20-30 Club and belonged to a social set which frequently met at the family homes of a group of young people who amused themselves by playing ping-pong, pinochle, and such other games as come and go in the seasonal order of social activities. He was also a member of a gun club which held contests in pistol target practice. He was a good pinochle player and he was rated as a good ping-pong player. On the afternoon of March 25th the defendant drove in his car to the Tavern, where he was accustomed to meet with his close personal friends for a social period. The Tavern seems to have been conducted after the fashion of a club. It served liquors, and furnished tables and apparatus for those who desired to play ping-pong and other kinds of games. The defendant arrived at the Tavern between 4 and 4:30 o‘clock P. M. His friend, Robert Dorris, was in the Tavern when he arrived and several others of his circle came and left while he was there. The defendant and Robert Dorris engaged in
There was nothing notably unusual about the defendant‘s demeanor during the two hours he was in the company of Dorris. Evidently his several brother club members who were also at the Tavern did not observe anything which could have reasonably given them any cause to suspect that he was not mentally normal.
Deputy Sheriff and Jailer, George M. Kelley, called by the defense on the insanity issue, testified that he entered a barbershop slightly in advance of the defendant on the forenoon of March 25, 1937, and they joshed about Kelley beating the defendant to the “next” turn. Kelley said he observed him before he sat down, and he saw there was something wrong with him. He expressed himself in these words: “It struck me there was something wrong. I could not say what it was.” He further testified that he and the defendant joshed like they always did when they met under similar circumstances. He talked rationally and he understood him. He waited his turn in the shop. The deputy sheriff also testified as to the arrest of the defendant and his conduct since he had
A number of defendant‘s intimate friends, family relations and acquaintances were called to give specific examples as to the temperamental qualities of the defendant. His mother gave a detailed account from his birth of all the diseases he had suffered and described the physical and mental oddities and idiosyncrasies which he had exhibited during his entire life. Dr. John Stile, thirty-three years a practicing physician at Alturas, had attended to the defendant‘s medical needs since he was about nine months of age. He testified that he had had all the diseases common to the childhood and adolescent stages such as measles, whooping cough, and rickets, and in addition St. Vitus dance and infantile paralysis which manifested itself in his lower limbs at the age of nine years. His full power of locomotion was not regained until some time thereafter. His appendix was removed in early manhood and at the same operation the surgeon discovered and removed a growth or pouch which had formed on an intestine and which is known in medical science as Meckel‘s diverticulum. It is medically described as a blind tube connected with the lower ileum. It has no special or peculiar significance with respect to mental soundness. His physical health was described by the doctor as frail, his weight being much under normal for a person of his height and age and he was described as a highly nervous and neurotic person.
Dr. Edward W. Twitchell, a clinical psychiatrist on neuropsychiatry to the San Francisco City and County Hospital and consulting psychiatrist to the Alcatraz Federal Prison, testified that he had read the record evidence and had made physical examinations of defendant regarding his nervous system, and had given consideration to the family history and his past life in all its details including reports that some of his relatives had been pronounced insane; also his illnesses, education, occupations and other matters which may have affected his life. He described the defendant‘s physical build as long limbed, very slender, long oval face, a long thorax
Two other physicians and surgeons, Dr. Philip McKenney and Dr. John Paul McKenney, both practicing their professions in Alturas, and with personal acquaintance with the defendant, qualified as experts in nervous diseases, gave it as their opinion respectively that the defendant was insane and was not conscious that the act he committed was wrong. The opinions of said alienists were based largely on the testimony given by near relatives and intimate acquaintances of the defendant and in many cases it consisted of isolated acts of passing moment which may have appeared strange or exceptional to the observer who was without knowledge of the many and various undisclosed thoughts which operate upon the human mind. A number of the things testified to by his intimate acquaintances and which were incorporated by the
The defendant was exceptionally active in social and club affairs. While a number of his intimate friends testified to acts and described incidents and conditions which, standing alone and unexplained, may be regarded as unusual conduct, their close social relations with the defendant continued unbroken to the day of the homicide. None of his intimate acquaintances was asked if he believed the defendant to be insane as provided by
The court, by authority of the provisions of
Aside from the testimony given by the experts, it is the law (
Counsel for appellant make numerous complaints of alleged misconduct on the part of opposing counsel and the failure of the court to admonish counsel for their transgressions. Many of the complaints are as to trivial matters which frequently occur in the trial of causes and make no lasting impression on anyone except the counsel who feels aggrieved. None were so devastating as to cause the jurors to so far lose their sense of duty and proportion as to be carried beyond the realm of reason by the caustic remarks of adversary counsel. The trial of cases should be conducted in an orderly manner and with due respect to opposing counsel, but where the infractions occur under circumstances such as could not have affected the judgment of reasonable men, a new trial will not be ordered.
The jury returned its verdict of guilty on July 2d. After some discussion as to the trial date, in which the court, counsel for both sides and the jurors took part, Mr. Howe, attorney for defendant, consented to setting the trial on the insanity issue to begin July 6th. He was agreeable to any date that would suit the jury. The court therefore ordered a recess until July 6th. Before court adjourned the district
Upon the reconvening of court defendant‘s counsel moved the court to declare a mistrial and vacate the verdict which had been rendered before the alleged misconduct had occurred because of the remarks of the district attorney last above set forth and on the further ground that the jury was excused without the court having admonished it as provided by
The denial of appellant‘s motion that the issue of not guilty by reason of insanity be tried by a new jury was a matter resting in the discretion of the trial judge and we cannot say that the court abused its discretion. It is noteworthy that this request was not made until after Mr. R. A. Payne had, according to his affidavit, approached two of the jurors during the recess of court and undertook to engage them in a discussion of the case. Upon this circumstance the defense predicates a claim of prejudicial error.
Said R. A. Payne made an affidavit that on the morning of July 2d after the jury had returned its verdict of guilty, at about 11:45 A. M., he was at the bar of a cafe in Alturas, known as “Slim‘s Place“; that also present at the bar were William Mayben, C. E. Atkinson, and E. C. McConnaughy, members of the jury which had on that morning returned the verdict of guilty against the defendant; that said Payne inquired of said E. C. McConnaughy, foreman of said jury, whether it was proper for McConnaughy to discuss the case and McConnaughy replied that they were at liberty to talk as far as the “last case was concerned; that none of them knew anything about the case that was coming“; that C. E. Atkinson, later and as a part of the same conversation, in substance said: “It is getting so now days that if anybody does anything they use the plea of insanity and get out of it;” that shortly thereafter at the same place in the presence of George Tierney, said Atkinson further said with respect to the trial ended: “They tried to inject a lot of dirty stuff into the testimony;” that in the same conversation Atkinson also said: “A fellow has got to be pretty careful what he says as the Frenches is a pretty prominent family.”
Another of appellant‘s contentions is that the court committed reversible error by the admission of the proceeding had before the judge which arose out of the refusal of defendant‘s counsel, participated in by the defendant himself, to permit the alienists appointed by the court to examine the defendant under the authority of
The three alienists selected by the court attempted to comply with the provisions of said section before the case came to trial but were met with refusal on the part of the defendant on the advice of counsel to submit to any examination or answer any questions propounded by said alienists or to cooperate with said alienists in any respect whatsoever on the grounds that the statute compelled the defendant to be a witness against himself and was in violation of
The court assured counsel that no questions would be asked the defendant bearing upon the commission of the homicide. The court said to the defendant, in the presence of his counsel, Mr. Baldwin, that Dr. Catton, one of the appointed alienists, had reported to him that the defendant had refused to talk with him at all. The court further explained that the alienists were appointed without suggestion of anyone and were presumed to be, and were, he believed, entirely unprejudiced in the matter; that he had instructed them not to refer in any manner to the homicide. He asked the defendant if he still refused to have any conversation with the alienists, and his attorney, Mr. Baldwin, replied that he would continue to refuse. The court then asked the defendant if that was his attitude and he replied that it was. Mr. Baldwin called the court‘s attention to the fact that the leading counsel in the case, Mr. Howe, was not in the city and intimated that he should have an opportunity to be present at the hearing as he did not deem himself authorized to consent to the defendant submitting himself for examination. On June 11th the court convened for the purpose of taking up the matter of the defendant‘s refusal to submit himself for investigation. Messrs. Howe, Baldwin, the defendant, and the district attorney were present. After
The court, after receiving refusals of suggestions made by it as to the conditions which should govern the examination, made the following comments which are set forth without setting out the context of which they are a part: “This seems to me to be a deliberate effort on the part of the attorneys to handicap the alienists in their efforts to determine the state of mind of the defendant at the time of the commission of the offense. . . .” Later: “It seems to me you are treading very close to the border line of contempt of court in instructing the defendant not to talk to the alienists.” Later the following occurred: “The Court: Mr. French, do you still maintain the position heretofore taken, that you are not to talk to anyone outside of your attorneys, and to those alienists especially, in regard to anything? Defendant: Yes sir; I do. The Court: And you are doing that on the advice of your attorneys? Defendant: I am doing that because I want to. I believe that is right. The Court: Well, there is nothing further to be gained, I guess, by continuing this examination. We have the attitude of the defendant and his attorneys, that they will not permit him to have any conversation with the experts appointed by the Court.”
Mr. Howe made a lengthy statement in which he disclaimed any intention to appear disrespectful to the court and that he opposed the examination of the defendant as a legal duty which he owed to his client.
At the conclusion the court said that it could not help believing that the attitude taken by defendant‘s counsel was done for the purpose of handicapping the experts as to the
The introduction in evidence of the transcript of the proceedings had upon the complaints of the alienists that they had been denied by defendant‘s counsel the privilege of examining into his mental condition was opposed by his counsel on all pertinent grounds and after its admission a motion to strike all reference to the proceedings was denied.
Appellant cites People v. Strong, 114 Cal. App. 522 [300 Pac. 84], to the point that
Whether a statute requiring that a person who enters a plea of confession and avoidance, such as insanity, shall submit to the examination provided by
It will be noted that the court did not criticize the defendant, but it did feel that the defense attorneys were rendering inoperative a statute which was intended to inure to the benefit of the defendant as well as to the improved administration of criminal procedure. The defendant‘s refusal to give any history or information as to his alleged mental ailment had been testified to by the several alienists appointed by the court and his refusal and conduct and all that he said was evidence in the case. Moreover, the court gave numerous instructions to the jury that they were not to consider the court‘s action on any ruling as indicating its opinion for or against the defendant‘s guilt. The jury was repeatedly instructed that their verdict must rest solely on the independent conviction of each juror.
The criticism by the court of counsel‘s advice to defendant to refuse to submit to the examination was, in our view, improperly admitted. But those things that disclosed the defendant‘s conduct, and indicated that he may have opposed the examination because of his fear of the result, were clearly admissible, as indicating defendant‘s state of mind. The court‘s improper comments were directed not against defendant but against his counsel. Under no view of the facts could this have wrought a miscarriage of justice with respect to the insanity issue.
Appellant has assigned as reversible error irregularity on the part of the jurors in their deliberation on this verdict. The grounds of this motion are that the two alternate jurors were permitted to remain in the jury room with the twelve regulars after the cause had been submitted to said jury. There is no merit in this contention. After the reading of the instructions the court concluded that the courtroom would be the most comfortable and convenient place for their deliberations and made an order to that effect. The two alternate jurors remained in the courtroom with the jurors a few minutes while the room was being put in order but no deliberations or discussion of the case was had in their presence. Sheriff Sharp and his attendant
The defendant further urges as grounds for a new trial that judgment was not pronounced within the time and according to the provisions of
“Mr. Wylie (District Attorney): That will be satisfactory to us.”
“Mr. Howe (Attorney for defendant): Let the record show that it is done by stipulation, by consent of both sides, with the approval of the court.”
“The Court: Very well; it is so ordered.”
The defendant in person requested the extension. The court here expressed as its view of the statute that the court must, upon the return of the verdict, fix the time for pronouncing judgment not less than two nor more than five days from the return of the verdict. But for the purpose of hearing any motion for a new trial the court may extend the time not more than twenty days where probation is
On July 20th the court met and announced that the time set for pronouncing judgment had arrived. Counsel for the defendant requested that in accordance with the stipulation and the request of the defendant and agreeable to the proceedings had in said matter as heretofore set forth, that the arguments on the motion for a new trial be set for August 6th. The court therefore fixed August 6th as the day for pronouncing judgment, sentence and hearing of the motion for a new trial.
No suggestions were made by the counsel for the defense during the proceedings to obtain an extension of time as to the proper construction of
Upon the convening of court on August 6th, the court‘s announcement that the time had come for pronouncing judgment was met with motions to grant a new trial on the ground that the judgment had not been pronounced within the time prescribed by
The time for pronouncing judgment was fixed, at the request of the defendant, on the last day within the time provided by statute, to wit, July 20th. On that day the defendant, in propria persona, and by stipulation of counsel, induced the court to extend the time for pronouncing judgment, to and as of August 6th, exceeding by five days (as counsel now insist) the jurisdictional period within which the court could have acted. The court granted the joint and several requests of defendant and his counsel. When the time for pronouncing judgment arrived the objection that judgment had not been pronounced within the time provided by statute was raised by counsel who had procured the extension.
It cannot be contended that the court failed or refused, as those terms are used in the statute (
It is true that a few decisions of our appellate courts may be cited which held as a matter of right that the defendant was entitled to a new trial in cases wherein judgment was not pronounced within five days after a plea or verdict of guilty. But as said in People v. Stroff, 134 Cal. App. 670, 671 [26 Pac. (2d) 315], “These cases, however, by reason of later decisions hereafter referred to can no longer be considered as authority. All of the cases cited by appellant overlook the provisions of
We have not been cited to a decision holding to the contrary where the above section of the Constitution was brought to the court‘s attention. Defendant suffered no possible prejudice by the extension of time and no miscarriage of justice resulted from the extension granted to him.
Appellant‘s counsel have in their briefs charged the trial judge with bias against the defendant and his counsel. On many occasions during the trial counsel requested the court to reprove counsel for the prosecution for misconduct, which motions were usually passed unnoticed or denied. It was difficult in many instances to judge as to which side was the most at fault. The outstanding instance occurred when the prosecution charged the leading counsel for the defense with indicating to Mrs. French by movements of his head when he wished a “no” or “yes” answer. Counsel indignantly denied the accusation and the incident no doubt was forgotten after the forensic speech of counsel came to an end. The jury was in a better position to have observed such conduct than the court, who may not have observed it, if it actually happened.
It cannot be presumed that juries are induced to decide matters of great moment on the indiscreet remarks of opposing counsel moved by partisan zeal. The alleged charge of bias on the part of the judge is without sound foundation. The charge is refuted by the following instruction of which there were a number given of similar import, specifically charging the jury that, “If the judge of this court has at any time during this trial, used any language that has seemed to indicate the opinion of the judge as to any question of fact, or as to the credibility of a witness, you must not be influenced thereby but you must determine for yourselves all questions of fact without regard for the opinion of any one else.” Reading the entire charge it was full, fair, and
It should also be mentioned, that although both the Constitution and statute permit the trial judge to comment on the evidence, and on the failure of the defendant to take the stand, this privilege was not exercised in this case, but on the contrary the court specifically instructed the jury that they should give the testimony of the defendant that same careful consideration that it must give to any or all other witnesses in the case.
The defendant earnestly urges this court to reduce the punishment from the imposition of the extreme penalty to life imprisonment. The court has no power where the defendant is convicted of murder of the first degree, in cases where the jury has exercised the discretion imposed in it, to substitute its discretion for that of the jury as to the extent of punishment to be imposed. In cases where the evidence shows that the homicide was committed with deliberation, premeditation and malice aforethought, the crime is murder of the first degree, with absolute power in the jury to determine the penalty. That there is evidence to sustain the jury‘s finding cannot be questioned. That being so this court is powerless to interfere with the exercise of the jury‘s discretion. The case was tried in the county in which the defendant resided from infancy. He was active in public, social, and business affairs. He was ably and skillfully defended. As a matter of law, we are unable to excuse or minimize his offense on any legal grounds. The plea to reduce the punishment to life imprisonment is in effect asking this court to exercise the commutation power which is exclusively a prerogative of the chief executive of the state.
The judgment and orders appealed from are, and each of them is, hereby affirmed.
Waste, C. J., and Curtis, J., concurred.
Edmonds, J., concurred in the judgment.
SHENK, J., Concurring.—I concur in the judgment. I see no escape from the conclusion that the homicide was murder of the first degree. I am convinced, however, that the defendant suffered provocation which would weigh
Langdon, J., concurred.
HOUSER, J., Dissenting.—I dissent.
To my mind, it amounts to a denial of the application of the principle of “due process” to adjudicate in effect that, although the jury is required to fix the punishment that shall be imposed on an accused who has been found guilty of murder in the first degree, it must do so in utter ignorance of any facts which relate to the commission of the crime other than those which show “the circumstances connected with the offense“.
Aside from generalities, in the instant case, the mental state of defendant at the time when the crime was committed was a most important element of his defense. Had he been even a normal individual, it is obvious that, during a period of several months that preceded the commission of the offense, the effect upon his mind of almost continuous insult, slander and libel, not only as it affected himself personally, but also the good reputation of his mother and his sisters, to say nothing of other relatives, must have been most provocative. The original adverse criticism of defendant which was made by the man who suffered death as the result of his temerity in that regard may not have been so harsh; but each subsequent similar attack carried with its own singular effect the certainty of increasing the sting of each and all of the former oral or printed castigations to which defendant theretofore had been subjected. In such circumstances, the final attack, although possibly not so severe as some of those which had preceded it, was like the “last straw on the back of the camel“. The continuous insult and humiliation to which defendant had been subjected finally proved to be too great for his peculiar nature to further endure. As a matter of ordinary observation, and without regard to contrary judi-
By statutory provision, one of several conditions, which, if existing at the time when a homicide is committed, in law will justify the commission of the offense is where it has been induced or prompted by “heat of passion” (
On the theory that the “not guilty” issue defendant was entitled to establish the existence of “heat of passion” as a “defense“, the case of People v. Hurtado, 63 Cal. 288, is instructive. In that case, in an attempt to legally justify the killing, the wife of the defendant testified “that she confessed to him prior to the killing, she had been guilty of adultery with deceased, and that the confession was followed by great anger, weeping, and mental depression on the part of defendant“. The defendant was convicted; and on appeal from the ensuing judgment, he urged as prejudicial error on the part of the trial court its refusal to instruct the jury that: “If the jury believe from the evidence that the defendant was not so insane, at the time of the homicide, as to be irre-
“It cannot be urged that the homicide is manslaughter because it was committed in an unreasonable fit of passion. In an abstract sense anger is never reasonable, but the law, in consideration of human weakness, makes the offense manslaughter when it is committed under the influence of passion caused by an insult or provocation sufficient to excite an irresistible passion in a reasonable person; one of ordinary self-control.” (Emphasis added.)
Likewise, in the case of People v. Logan, 175 Cal. 45 [164 Pac. 1121], after reviewing the law respecting the same question presented therein, the court said that: “These cases serve to illustrate that it is not alone the fear of great bodily injury which will reduce a homicide to the grade of manslaughter. The passion aroused may be one entirely disconnected with any fear of personal injury, the fundamental inquiry being, we repeat, whether it be sufficient to obscure reason and render the average man liable to act rashly (citing cases). . . . But upon this suffice it to say that, having in mind the facts as above outlined, the feelings naturally engendered in defendant‘s mind by the indignity previously put upon him, the physical superiority of the deceased, the aggressive manner in which he accosted him, the fear that he was about to be subjected to a second humiliating beating, there was at least some evidence tending to reduce the crime from murder to manslaughter, for the due consideration of which evidence defendant was of right entitled that the jury should be correctly instructed. For, as well said in Stevenson v. United States, 162 U. S. 313 [16 Sup. Ct. 839, 40 L. Ed. 980] : ‘The evidence might appear to the court to be simply overwhelming to show that the killing was in fact
The jury has but one opportunity to render its verdict on the “not guilty” issue; and, as far as the jury is concerned, that verdict is final. If, in accordance with the views expressed in the prevailing opinion herein, evidence of facts which may have constituted the inducing cause of “heat of passion” legally may be excluded from consideration by the jury, how is it possible for the jury to rightfully determine either the kind of crime that has been committed, or the degree thereof; or how may the jury justly solve the problem which involves the question of what penalty should be imposed on the defendant? Manifestly, an uninformed jury is not qualified to render justice.
Nor should reasons for my inability to agree with my associates in their conclusion herein be deemed limited by or confined to the foregoing observations. Several other reasons for my protest against the judgment herein might be pertinent, not only as applying to the points to which some attention has been devoted, but as well to others. (See dissenting opinion in People v. Troche, 206 Cal. 35, 51 [273 Pac. 767].) However, I cannot refrain from at least expressing the fact that I seriously doubt the correctness of the basic assumption which, at least by inference, appears in the concurring opinion, to wit, that in the premises the power or authority of this court either is or may be either increased or limited by the provisions of
Rehearing denied. Langdon, J., and Houser, J., voted for a rehearing.