*1 In Bank. Nov. 29, No. 4961. [Crim. 1949.] LETOURNEAU, PEOPLE, Respondent, THE ARMAND Appellant.
George Kenyon T. Davis and Appellant. C. Keller for Howser, Attorney Fred N. General, and Clarence A. Linn, *4 Attorney Deputy General, Respondent. for SCHAUER, charged J. Defendant waswith the murder of mother-in-law, his Mrs. Rosario Maniscalco, pleaded and guilty not guilty by and not insanity. jury reason A found was.guilty that he of murder degree of the first did not specifically recommend the penalty; same found that he at the sane time he committed the murder. Defendant
482 judgment imposing penalty death ensuing
appeals from the denying prin- for new trial. His his motion and from an order prejudice court erred to cipal is trial contention general guilty, not trial issue of by excluding, on the of the proffered assertedly have tended to would show evidence which possess the (or doubt) he did not raise reasonable pre- (“malice aforethought,” deliberation mental state the homicide murder meditation) essential to constitute concluded, for reasons hereinafter degree. the first We have respect in has establish error detailed, that defendant failed by him points urged show contention, that other to this justice. miscarriage of no upon relies contention defendant support of his main (1949), 33 holding (in People v. Wells of this court
recent rule, 53]) that “As a 330, Cal.2d 350-351 P.2d [202 tending competent, guilty plea, evidence, on otherwise the not stage conclusively at defendant, who this is to show that committing presumed sane, not, did or did the overt either admissible, specific state, is act, possess the essential mental legal sanity legal insanity or is tending but evidence to show if tends to show Thus, proffered evidence not admissible. not, merely he did or did but rather because not insanity specific intent or legal not, he entertain could state, inadmissible essential mental then evidence is other only on the trial guilty plea and is admissible under not by insanity. The plea guilty reason of standard admissibility appraise the judge which the trial must ‘right or every is, course, case the familiar legal wrong’ insanity which as defense standard ... Eng.Rep.R 718; see gauged. [McNaughten’s (1843), Case Cal.Jur., p. 21, there Evidence 862, and cases cited.] § insanity legal sanity) is (likewise, which tends to show stage perti- it is not first because admissible being evidence, litigated; competent but nent to issue then proof sanity insanity, which tends to show other than or (then either did or presumed) legally sane defendant that a required, possess specific did not in fact intent motive ” exclusionary rulings shown, As admissible. is hereinafter grounds complains were made stated which defendant contrary holding and, other to this of the Wells case no however, ground rulings existed, appear; error would actually rulings (as such were because correct “although Danielly (1949), 18]), 33 Cal.2d pre- aforethought proof of malice and deliberation *5 was, course, part prosecution’s of an essential meditation materially rejected the not relevant to case, ’’ theory of defense raised the trial of the issue. objective viewing killing, The circumstances of the the respondent favorable to evidence most insofar as it March, conflict,1 is in were as follows: defendant daughter Catherine, married the of Antonio and Rosario About month their marriage, Maniscalco. one after defendant and his wife went to with mother live the wife’s and father. Upon premises dwelling cottage. the were a two-flat and a small wife, A Roberta, son the Maniscalcos the son’s lived in cottage the with their The two small children. elder Manis- family in upper calcos other members the the lived flat. and Catherine lived in the Defendant lower flat. Defendant only mother-in-law, not Mrs. Maniscalco, killed but also niece, Cecchi, aged his wife’s infant Rosario about 11 months. charged killing. He not with the latter The infant Rosario grandmother, the care of her the was left elder Mrs. Manis- parents calco, while her worked. Defendant and his wife were girl. godparents April infant Prior 21, 1948, to day killings, consistently great defendant had evidenced affection for his mother-in-law and the infant niece. morning April 21, 1948, On the cramps had ‘ ‘ ’’ go did
all over and His wife, regularly work. who was employed, to her work, went did as other adult members of family. only The family, members aside from defendant, premises who remained on the were Mrs. Rosario (defendant’s mother-in-law), Maniscalco the infant Rosario Cecchi, and Roberta and her two children. Some time after o’clock, grocery while the mother-in-law was store, making her beds, Roberta was in bedroom three playing cottage. children were came window, chair, Roberta’s kitchen on a" open stood and forced the window. Roberta went the kitchen into and defendant get said, going “You better let me in. I anyway.” am cottage Roberta unlocked the door and ran to the street. passed defendant he grab,” caught As she “made a Roberta’s appear summary 1Such as exists conflict will hereinafter from the testimony. charged defendant’s in basic -of facts homicide are not dispute. opening In his statement counsel defend frankly recognized ant with which the circumstances he was confronted. going He said: “This going to be kind of a ease where there is not dispute people to be a kill whether he did did not these . . . disagreement killing. is no There He here about the This man facts. did the ’’ people. killed both dress, way . . . and half but she loose and ran out “broke ’’ block. her down the There she mother-in-law and told met breaking me, her that defendant after “was the house ’’ got cottage. The mad. mother- she Roberta returned her flat could her in-law went into defendant's and Roberta hear “hollering real could understand she loud,” but what *6 cottage said. The mother-in-law then returned to Roberta’s picked up the and infant Rosario. Defendant called to him fix asking help from some flat, his her to mother-in-law help him and went replied artichokes. She that she would (how baby. long, flat time later carrying into his Some did not cot- recall) Roberta returned to Roberta’s defendant tage. The her following description of events is taken from testimony: coming face, “he and he asked had down his blood you Bandaid, said, me for a I to now?’ happened and ‘What my ring, And he said mother-in-law had hit him with ’’ ring. he had a little him Roberta quarrel, and she hit with a bandage it, obtained a was defendant and, preparing as she I grab up “made a and started my me ... He had dress said, holler, and I knife and he around, to turned and he had a my boy holler, your ‘If I I told will cut throat.’ And . . grandma; nothing wrong call was . and acted like he boy’s grabbed my little bed pulled me me on and [Defendant] ’’ . my pants . . and his trousers took removed off. Defendant completed and an with Roberta. act of sexual intercourse her and from the was on face Blood cut on defendant’s face threatening away kept trying get “I from him. He ‘ my get up I I the blood off said, then and wash me and Can I make got up He And a break said, ... ‘O.K.’ face?’ my bed,” where he grabbed put . he . . and me and me on then He accomplished two more of sexual intercourse. acts cottage. hair, trousers, his combed his and left put on my out, put pants . . I “waited went . and Roberta until he . upstairs my . . he I ran what on and to tell mother-in-law with standing phone, . . done . at the had [Defendant] ” number,’ He this in his . . . ‘Dial the receiver hand said (Although dialed as defendant directed. and Roberta a number the police it, did not was the number Roberta know this me, walking station.) away, and he said She then “started ‘ ’ he him, I and then dialing ignored who I am ? And Guess ” Roberta once over is a at said, ‘Come here. There murder.’ help. A in search ran from and into the street house to defendant’s police officer Roberta with him arrived and went locked, knocked. door, The officer and flat. tried found my “I said, them. ‘Where Defendant admitted [Roberta] baby?’ coldly, mother-in-law and And he said ‘In there.’ up blanket, looked, I And it covered with and ran out.” dining
In the of defendant’s flat were the bodies of room his mother-in-law infant niece. had struck each them many times head wrench, about the with a frac- turing inflicting many bruises, the skull and lacerations then, a carving knife, repeatedly with each had stabbed of them head, thighs arms, chest, partially abdomen and eviscerated them. questioned by police deputy he was and a
When district attorney about 2:20 of April 21, in the afternoon gave killings largely account of the an similar gave testimony. According he that which to defendant’s (sometimes testimony, Bobbie) Roberta referred to as came morning They “holding flat on into his 21st. were when their mother-in-law came in. hands” Defendant asked prepare the mother-in-law to some artichokes. As the mother- doing this, baby holding in-law was under her left arm and *7 ‘‘ ’’ right hand, cup said, squeal, a in her Roberta is going She to and handed defendant the wrench. Defendant “took the hesitate, wrench I not I swung and did and hit her . . . [S]he heavy she woman, around and is a that cup and hit me under eye got dizzy here me bit little and I too, don’t know—I must have hit her some more after that, guess. I quite I many remember how times I her, don’t hurted I after that turned around and Bobbie had the knife in her I hitting baby hand ... don’t remember ... I don’t them], remember I did but I know I her [kill hit [the I I pretty ... am sure did that knife have mother-in-law] ... I don’t remember cutting them up, though.” Defendant changed wiped sug- clothes off the knife. At Bobbie’s ‘‘ gestion they cottage, went her taking to to it knife clean better.” Defendant left the wrench on his kitchen table. voluntarily bedroom she engaged Bobbie’s in sexual inter- course with defendant. Defendant testified that he was not angry “Why at his mother-in-law, Asked, that he loved her. you did hit her on head with that wrench?” defendant ‘ ‘ ’’ replied, going Bobbie told me was squeal, again, she “I know I anything don’t ... realize didn’t at the time.” only Defendant testified got further it was “when he through having intercourse” that “realized gave he when she mother-in-law”; got my up, defendant
me wrench to hit telephone police; he dialed “Informa- dressed, and went police department; tion” and asked for the number of the Bobbie came in asked her to dial the number and defendant nervous; scared”; “I I shaking because ... I was you asked, after “Who are she had dialed the number Bobbie you know we calling?”; replied, “Don’t what said, “No, calling police”; done I Bobbie downstairs? am ’’ no, don’t call the ran out. police, and relating a police of a officer According to the April 21 defend- assertedly afternoon made on the statement I her “When struck [the mother-in-law] remembered ant baby baby the floor . . . The dropped the head she on the ’’ assertedly baby, I too. crying, struck the Defendant so my mother-in- “I stabbed that time at remembered also ’’ baby. I also open her ... stabbed ripped I law, and Contends, Which, Evidence Exclusion Aforethought, Lack Malice to Show Tend Would Premeditation Deliberation and jury defendant’s opening During his statement ‘‘ evidence directed to intended to adduce that he counsel said talking Now, am not the defendant. state of the mental or insane defendant is sane whether the about you specifically you will demon facts which time We will show this ... he occasion mind . . . that on this explosion of the strate an nothing mentally more or less than berserk as to be so far went . . that going to show . . . We are further . a wild beast psychopathic ago only was confined a short time this man ’’ Counsel for the Hospital. Francisco ward of the San anything kind of that going to show said, “You are not then going go into this ... We are during first trial “I replied, am sanity.” Defendant’s counsel . . man’s . sanity. going I am to show purpose it for going to show hysterical demonstrating possible ease of purpose trial.” raise this proper is a amnesia, which *8 he intended to indicated that counsel Again, defendant’s particular the at “loss of consciousness the defense of present ’’ insanity. nothing with to do thing happened, that has the time right.” Defendant’s ruled, “That is judge properly The trial by saying, “we will opening statement his counsel concluded exactly what for all of us demonstrate to the evidence have let excerpts These committed.” degree crime, any, has been indicate defendant’s opening statement from defendant’s understanding type had as to the of evidence counsel a correct of mental condition is admissible on the trial of which e., tending issue; i. that he could introduce the time of show that defendant was unconscious at killings committing (Pen. Code, crime incapable and thus tending 26), and evidence show that defendant did not § possess requisite specific state of “malice afore- mental thought” deliberate, premeditated kill, and a intention so long legal as the evidence did not tend to show that because of insanity, requisite he possess could not mental state. How- (and ever this, previously indicated, in as case is similar to People Danielly (1949), supra, 362, 364), defend- Cal.2d ant competent did not offer evidence of mental condition which negative requisite would tend to possession state mind. The he instances of exclusion of evidence of which complains are as follows: autopsy surgeon counsel asked who
Defendant’s the wounds which caused Mrs. Maniscalco’s had described you say, Doctor, whoever inflicted the death, “Would operating certainly woman have been on must wounds this just under an abnormal time under an abnormal and at the say?” attorney objected mind, let us The district frame of possibly answer it ground that “The Doctor cannot on the correctly court sustained the ob categorically.” trial been laid. jection ; proper no foundation had showing legitimately had, doctor could There no jury determining which form, opinion an aid the could mind of the killer who inflicted the wounds. state of showing materiality of some affirmative of related absence presumed from examination of the will not be mere wounds, autopsy speculate doctor could do more than as killer, what the state of mind of the insofar as it could subject properly expert concerned, constitute might been; have it is not shown that from the nature of the any alone the wounds doctor could draw material inferences which the themselves could not draw. unsuccessfully sought show, on general issue, prior to the homicide he had been psychopathic city hospital. police officer, ward of the A
testifying People, for the was asked defendant’s counsel n, did ascertain time whether cross-examinatio psychopathic man had been confined hospital this People’s general objection ques San Francisco?” The to this *9 488 on, Later sustained; proof no offer was made. was
tion however, incident, defendant testified that to the relation wife the homicide his took approximately six months before hospital, myself, to city him to the “and when came back in the ward.” The to strike the I was coocoo moved testimony ground portion quoted of defendant’s “self-serving” “attempting inject and into this was to it granted. hearing proper”; a that is not motion matter general issue, any make not, Defendant did on the trial of the relevancy inquiry. proof line of offer of to show this (See Cal.App.2d (1949), Brown Co. v. Southern Pacific 632].) However, it 639, appears from the insanity on the of the issue of evidence introduced general excluded relevant to the issue. not inquiry stage trial, At the when defendant’s second subject limited, into the not his wife thus described hospital: which he was taken to the Defendant occasion up “drinking day”; violent, had been all he became tore a sheet, announced, getting “I His bed and am blind.” wife hospital, and took defendant where brothers-in-law stayed night. he was examined and for one On the trial of insanity psychiatrist the issue of a testified that he had seen city hospital report stated that the doctor and that it hospital a diag who had examined at the “made defendant forgotten what nosis some nervous condition—I have it was—not mental alcoholism and condition—and blindness things.” due to ... a combination of those has attempted not condition” to show the nature of “nervous try and explain, apparent, he does to is not what way ques any bearing the above incident have on the would whether, tion months mind later, six he had the state of which killing would murder of make the mother-in-law his Certainly first or degree. homicide of a lower the incident does not appear bearing to have material on the issue as to whether at in a state the time of homicides he was unconsciousness. issue was not trial of defendant
On the marriage testify as his in Canada to first allowed wife, his he had never struck first fact separation first wife which led from his circumstances insanity, On the trial of issue of de in or before 1940. length first had an that his wife affair fendant testified at faim, preg became employed on defendant’s with worker attempted worker, poison nant this containing Defendant does soup arsenic. giving him tea and they actually occurred, explain how, these incidents intent of a deliberate formation would affect defendant’s years later, in different surround- Mrs. Maniscalco several kill had not known ings, among persons whom defendant attempt marriage. Defendant made no time of his first *10 that did not occur or that his belief that show the incidents they they product the a diseased mind or that happened was any way prove subject to he was to amnesia. tended testimony marriage, the as to defendant’s first it devel- Thus in, when all the evidence was relevant to no issue oped was stage either of the trial. at 21, was asked, April
Defendant “before did injure any being?” answered, ever human strike or prosecuting attorney objected “Never did.” The and the “I objection. court will ruled, trial sustain his think it is There was motion irrelevant.” no to an strike defendant’s complains sustaining objection. swer. Defendant of the However, his answer to and, is in record suggested is furthermore, extremely general not how the previously that he had or had injured fact human being materially proof would affect the as to his state of mind April 21, 1948. only
The above are the instances of exclusion of tes- timony specifies which defendant as erroneous because of the testimony relevance of asserted possession of the necessary (on theory mental state case) of the to con- killing degree. murder of stitute the first The evidence ad- at insanity duced the trial the issue subsequent and at hearing as to whether he sexual was a psychopath has been examined in order determine whether was there other evi- dence, on the trial of relevant issue, as to which de- neglected fendant’s counsel a specific to make offer proof stage the first at the trial because he led believe, by the tenor of rulings, court’s that it would admit no evidence as to mental during condition stage of the trial. Such examination of the record has disclosed no evi- dence which should have been jury before the they at the time considering were whether possessed the conscious and deliberate intent which is an element degree of first mur- expert testimony der. There is no tending to show that de- suffering fendant was unconscious or from amnesia the time killings; committed he' all such is to the con- trary. On the trial of the of insanity issue two the three killings an in- that the manner of suggested experts expert may sadistic, been but no tes- they have dication opinion an that defendant he had formed tified that expert hearing psychopathy as sexual On sadist. killings were not was that in this connection to eliminate desire, but were sadistic, to arouse sexual previously existed. of a desire which to fulfillment an obstacle killing may not be which indicates There is no evidence legal and, sense, in the deliberate sadistic time at the same premeditated. Trial Instructions on the Errors in
Asserted Issue the General following complains giving of the killing “In cases where the homicide instruction: erroneous justification, to show on the defendant it rests proved, qualifi subject mitigation, circumstances of excuse or given to the de be benefit of the doubt is to that the cation 1105 of resembles section The instruction fendant.” reading impropriety of that section Penal Code.2 33 Cal.2d (1948), fully v. Cornett jury discussed an 877], there cited. Under and cases 33, 43-44 [198 “may be language of that section the in the instruction *11 unless the circumstances do not exist mitigating lieve that by a circumstances of such proves the existence defendant degree of by or some other of the evidence preponderance jury in the is erroneous that Moreover, the instruction proof. appli has no fully such an instruction advised that was not is murder, and that it determining degree the of in cation consti homicide only determining whether the in applicable justifiable or excusable manslaughter, or is murder or tutes foreclosing any consideration of may have the effect It ... although circumstances, not suffi mitigating by jury the enough homicide, may be justify excuse the in law to or cient counteracting degree by murder crime to second to reduce the (p. 44 of deliberation” premeditation or the element of qualified given here is though the instruction Cal.2d). Even given be benefit of the doubt is to by that “the the direction in- the qualification does not correct defendant,” this murder, "Upon the Code, § commission of the 1105: a 2Pen. proving being proved, by circum burden of the the defendant homicide him, upon it, justify mitigation, or excuse devolves or that of stances prosecution proof part tends to show on of the unless the manslaughter, only or that the defendant amounts committed crime justifiable excusable." or any bur- jury that to, error intimate to the struction, for is the trial of rests persuasion den of issue. miscarriage of However, appear it does instruction, justice giving from the of the erroneous resulted only important ultimate though its error relates to the even killing evidence; question presented e., i. whether the degree. to this murder of the or the second As first you correctly told, “if specifically were and beyond a that the defendant are convinced reasonable doubt guilty you is crime entertain a murder, but still if killing deliberate wilful, reasonable doubt whether the premeditated, perpetration attempt and or done in the or perpetrate you rape, lying wait, or in then in a case such guilty cannot find the defendant first of murder of the degree,” you beyond “If find a doubt reasonable that the killing murder, is tending provocation establish may by you determining also be considered degree in murder, if, evidence, after due consideration of such you should entertain a reasonable doubt as to whether there existed at the time homicide the mind of the defend ant the deliberation premeditation essential to constitute murder of the degree, first killing or that the was done perpetration rape attempt perpetrate rape, or while lying in wait, it your duty would then be to find the defendant guilty of murder of degree. you second instruct you believe from all beyond the evidence in the case reason able doubt that guilty the defendant homicide, but have degree doubt as to the of the offense of which the defendant guilty—whether it is murder degree, first murder in the second degree, or manslaughter, you give will defendant the benefit of such doubt guilty only and find him of the lowest offense as may to which guilty find him ’’ beyond a reasonable doubt. appear It does not jury, in deciding that defendant’s admitted striking intentional Mrs. Maniscalco with a wrench3 inwas course deliberate, hesitate, 3Defendant testified: “I took the wrench and I did *12 pipe my I hit her ... It was wrench ... I hit mother-in-law .. . , swung heavy and she around and she is a woman . . and I don’t know— that, guess. quite I must have hit her some more after I I don’t remember many how times I hurted her ... I hit her the head ... I I hit know there, again. might her and when she around I turned hit her I have again many hit I her but don’t remember how times . . . After up. ... I took the ... I must cut I knife have her don’t know what I her], I [kill did ... don’t remember I did but I know hit her . . . Why you explain did hit her? . . . Can it? A. Q. Ho.” premeditated murder, disregard chose to detailed, these cor rect misleading instructions and interpretation to follow a vague quoted. instruction first above As to the instruc tion may under attack, it be noted that it is erroneous also in that it purports place persuasion some burden of on defend merely ant when fact, perpetrator, and not the of the killing has been proved. prejudicial This error could have no here, effect for defendant admitted that he committed the homicide. judge
The trial did not instruct jury that the evi dence of oral admissions of defendant is to be viewed with (Code caution. Proe., 2061, 4.) Civ. par. Defendant com § plains of this urges omission and the error was made more giving serious of an instruction circum stantial includes, among other things, admissions and that “There nothing in the nature of circumstantial evidence which any any renders less reliable than other class of evidence.” There were in evidence admissions of assertedly defendant made police to a officer deputy and a attorney. district did deny making these admissions, but testified that he that, did not recall in the course them, he described the manner which he cut his mother-in-law and fied, further, killing baby. admitted the of the He testi
that he did fact recall cutting of the woman or the killing baby. However, from the entire record it appear does not reasonable that, to believe if the cautionary instruction given had been and the instruction concerning circumstantial erroneously evidence had not classi fied among admissions as the sorts of evidence which are not “less reliable than other evidence,” class of would disregarded have testimony relating to the admis sions of assertedly immediately made after the killings, accepted at the trial that he had no memory of details which he had previously described, and thus come to the conclusion that there was a reasonable doubt as to whether defendant had with acted pre deliberation and meditation or in the carrying course of out an intent com (See rape. mit People Koenig (1946), 29 Cal.2d 1].) insanity (a the trial of the issue of part
On of the “entire duty cause” which it our to examine Const., VI, art. [Cal. 4%]) appointed two court alienists testified that defendant § baby that he had hit woman told them and the with the bodies; and slashed and cut both wrench third alienist
493 quite killing that said “he defendant didn’t remember testified stated, baby”; further, defendant he did the that strike the baby taking from and the and remembered the knife woman cleaned, he returning it to her to be but not what Bobbie with between It thus did the knife those two occurrences. claimed remem- appears that the extent which killings different the details of varied somewhat on ber the miscarriage supports This the conclusion no occasions. that even if on the trial of the justice jury, of has resulted the testimony relating issue, gave full credence to the asserted admissions. defendant’s wholly
The record fails to any show that instructions whatsoever, single a other than one on insanity the phase of trial, requested by the were or were either the plaintiff or Instead, the defendant. the record a stipulation shows charge” by given judge an “oral be the by transcribed reporter. court such circumstances, the Under appellant fails show and we have no means of ascertaining whether or specific the statement the omission proposition of requested by particular party law was given or was or on If omitted the court’s own motion.- a party is to any point, make whether of commission or in omission, rela giving instructions, tion all requested the instructions should be filed in and, and included the record as stated Vaughn (1948), 586, 31 Cal.2d 432], Jonas 596 P.2d [191 by “Bach instruction should be identified a number and by requested given should indicate whom was or it was by requested motion; the court of its on own each instruction judge the trial should endorse the fact as whether it was given given or refused as with modified, modification, or clearly any, appellant The burden indicated.” is on affirmatively prejudice therefrom; not, he has show error this record, sustained such burden. Jury’s Contention Determination as to Penalty was by Conjecture Opinion and Public Influenced After had deliberated for three hours on the plea raised of not guilty, issues it presented, in open ‘‘ court, question following judge: written to the trial Does imposition ‘imprisonment prison in the State for the pardon term his life’ allow of later parole natural or judge possible stated, release?” The something “that is is a matter for the Court. It is not, processes law, your a matter for consideration . . . and we will not part correct; reply possibility
answer it.” This was in pardon jury’s (See not for parole consideration. 627].) (1944), v. Alcalde Cal.2d preju- could have appear It does not that defendant been strictly tech- judge, diced the fact the trial sense, erroneously questions nical “for stated that were Court,” question pardon (at ulti- whereas the least mately) (Cal. Const., VII, §1; Pen. for the Governor art. 4800) Code, parole and the Adult § *14 Authority, power Legislature of which is defined (Pen. Code, 3040, 3046). §§ complains
Defendant that the mere asking of the question contrary the jury, showed that to an instruction which being given, had been influenced in its deliberations “conjectures, public opinion . . public . or feeling” they recommended a life sentence might day some such be released release would be undesirable. He urges that, least, at the trial judge, when question reread asked, should have the instruction forbidding the jury’s acting under such influences. presume But we must jury that the followed the instruction which being forbade its by conjecture public feeling, influenced or and accepted the judge’s statement it was not consider the possibility of parole. (See People pardon (1928), v. Ferlin 587, 203 Cal. ; People (1932), 600 P. v. Anderson 120 Cal.App. [265 230] 202].) 5, 8 [7 on the Trial Issue Refusal, Insanity, to Permit of Opinion Sanity to her Testify Defendant’s Wife People’s objections judge
The trial sustained questions, your asked of defendant’s wife, opinion, “what you any opinion or, have formed as to whether he was sane or time act was you insane at the this committed?” and “Do yourself?” rulings These sane, think he is were erroneous. (Code Proc., 1870, par. may given 10: Civ. Evidence be § acquaintance opinion respecting “the of an intimate the men sanity being person, opinion of a the reason for the tal given.”) judge, reflection, The trial on further came to this opening of court the and, day, next asked conclusion at may Mrs. Letourneau I defendant’s counsel to recall “so that “I place question replied, to her.” Defendant’s counsel asking your Honor, and I don’t.care her through, am about question her her if want to come back ... You can call her the time when to ... It was asked at the end of at
495 importance bearing. it had To call her back and re-ask question purposes her that would seem to me to defeat question being place. So, her asked the in the see first can’t my point how I can rebuild case back to the when the my asked, prejudicing without now. I will client have go that.” Having to stand on the record and let it rejected judge thus the offer of the trial the error, cure complain (People now defendant cannot it. v. Glover (1903), 233, ; People 141 246 (1912), Cal. P. v. Hatch [74 745] 368, 907]; People 163 Klopfer (1923), Cal. 377 P. v. [125 Cal.App. ; People Morley (1928), 295 P. [214 878] 276].) Cal.App. 451, P. Furthermore, circumstances, under the it is not shown that the error was prejudicial, for Mrs. Letourneau had testified detail to the upon opinion conduct of defendant which her would have based, been and it appear does that the would have contrary lay reached result had it known witness, that one defendant, opinion contrary the wife of was of an to that of court-appointed experts the three testified who their opinion, based the facts to which Mrs. Letourneau testi facts, fied and other defendant was sane. Insanity
The Order the Trial Issue complains the trial court did not *15 comply with when, section 1369 of the Penal Code despite request, permitted People defendant’s it open to make an ing jury statement to the before defendant’s counsel made his opening permitted People statement and open and close argument jury. However, that section in chap a “Inquiry entitled, Insanity ter into the of the Defendant before Trial or after Conviction.”4 No section of the Penal specifically of the upon plea Code directs the order a guilty by insanity, repeatedly and it has been reason right open argu held that has no and close the jury (People 470, v. 204 (1928), ment to the Hickman Cal. 909, ; People (1932), 482 P. v. 215 P. 270 Goold [268 1117] 958]; People (1936), Kimball 763, Cal. 766 P.2d v. [12 ‘ ‘ insanity pro provides, 4The section The trial of the must following ceed in the order: open must the case and “1. The counsel for the defendant offer evi- support allegation insanity; dence may open people The counsel for the then their ease and offer “2. support thereof; . evidence . . people the counsel for “4. When the evidence is concluded . . . commence, may argu- his must and the defendant or counsel conclude ment ...” 496 483]; see, also, People Hardy
5 608, Cal.2d 611 P.2d v. [55 865]) although (1948), 52, 65-66 P. the trial 33 Cal.2d [198 may (see (1930), him permit People court to do so v. Lee Cal.App. 609, 887]). 108 P. 613 [291 stated, judgment For the reasons above and order appealed from are affirmed.
Gibson, J., J., Spence, J., Shenk, G. concurred. EDMONDS, People For thereasons stated in v. J. Wells (33 People Danielly 53]) (33 Cal.2d 330 P.2d Cal. [202 2d 362 tending that, prove evidence at the [202 18] time of a crime, commission of a defendant did not have the requires state mind which the law as an essential element of presented the offense is the issue a admissible a trial of plea guilty. mind, of not To establish the defendant’s state of may either the or the defendant offer competent admissibility, under the rules which relevant to that issue. autopsy surgeon,
Letourneau’s had counsel asked the who causing death, described the wounds Maniseallo’s “Would Mrs. you say, Doctor, that whoever inflicted the wounds on this certainly operating woman the time under must have been just mind, an abnormal and under an frame of let us abnormal say?” attorney’s objection The “The Doctor can- district possibly categorically” sustained. answer majority opinion proper ruling concludes that the because inquiry showing materiality, there was no of related proper opinion upon subject called for an is not which subject testimony. expert
Had doctor inflicter stated of the wounds was acting then under an abnormal mind, frame of opinion logically would have been relevant the issue of the defend ant’s state of mind at the time of the homicide. may That there logical be a correlation between the circumstances of the homi recognized cide and the killer’s mentation is in People v. Kaf Cal.App. oury, P. 938].
Moreover, authority holding there is that the examination autopsy surgeon subject upon concerned a expert which Redmond, is admissible. Gibbons v. 142 Kan. *16 893], 103 A.L.R the issue before the court of mind of the soundness one who has executed a will. The questioned trial court admitted of an examiner of entirely documents, appearance based signa- of the ture, to the effect that testator was in an abnormal mental signed condition the time he Supreme the document. The recognized Court Kansas that there was fair basis for non- expert inference of testator’s mental faculties from the manner signature Against which the was written. a contention that subject proper expert ivas not a testimony, one “ . . court stated: . because the fact that the has specifically not heretofore been decided is not sufficient to testimony. warrant were, refusal to admit the If growth arrested, common law would be and it would be frozen where it is.
“At commencement, president of Cornell University, addressing graduates school, of the medical said tendency there ivas a part profession on the of the medical part and on the legal profession premise, to act on the was, right.' ‘Whatever by A decision this court that the testimony should have been excluded because there is no established rule of authorizing its admission, would ’’ demonstrate soundness of the criticism. autopsy
The surgeon permitted should have been to state whether or not opinion she had an concerning the defendant’s mental state study derived from her of the nature and circum- stances of the homicide accomplish and the means used to it. Very often an expert in the medical field has formed opinion no particular as to the injury cause condition, or mental al- though other profession might members of her have done so. However, preliminary the witness was not ques- asked these inquiry tions. The directed to her assumed both that such expert opinion hand, could be formed an from the an data at opinion. had the witness formed such these and that Under ruling sustaining objection was correct circumstances only ground proper ques- foundation for upon the no attempt There no had been laid. counsel to follow tion questions opinion as up to whether such could be formed with autopsy surgeon opinion had Avhether the sub- may not be assumed that the would have re- ject. It court previous inquiry purpose. his examination for that stricted type of instruments which caused Mrs. Maniseallo’s as to the properly if she had an death, counsel had asked the witness asking to the instruments used before for that opinion as opinion. failing appellant judge asserts that erred in oral of a
to instruct the that evidence of the admissions *17 defendant are to viewed be with caution. This error was al legedly by given rendered more serious the instruction on n determining circumstantial evidence. that no substantial prejudice majority resulted, opinion upon the testimony relies “ appointed of court two alienists which was received the [0]n e insanity (a part trial the of issue of th cause’ entire which ” Const, duty 4%]) it is our examine art VI, to ... [Cal. §
I agree prejudice that no substantial resulted from the instruction, prejudice omission of the but could not have been or upon cured lessened evidence offered the trial of insanity. the issue At time the had returned its finding guilty. verdict Letourneau guilt determination of the had been made received in evidence the trial of the general issue and the applicable instructions the court to jurors that evidence. It was then for too late the to reconsider question guilt the Letourneau’s light innocence the presented insanity on issue the the had they to desired do so. these I concur judgment.
For reasons in the CARTER, J. I dissent.
Again
acknowledgment
we have an
of the rule that evidence
of mental condition
admissible
the
the “not
bearing
guilty” plea as
on premeditation,
intent,
malice,
apply
followed
the refusal
to
it.
paradox
The same
presented
People
as that which
Wells,
existed in
33 Cal.2d
53],
P.2d
v. Danielly,
In the
it
held
Wells
was
of a
physician
examined
material
who had
defendant was
issue,
pertinent
prejudicial.
but its exclusion was not
Danielly
grounds
apply
other
for
In the
case
refusal
given
vitality
borne
mind bent on
rule were
fertile
withholding of the rule from the defendant. There
benefit
as a
to show that defendant
physician
was offered
witness
possess
forming
mental
an intent or
did not
'faculties
majority
irrelevant,
and that
premeditation, but
found
Thus
case was
proof
offer of
insufficient.
the Wells
materiality.
bar,
In the
holding of
case at
deserted in its
irrelevancy
again uses
and failure make
offer of
court
an
adding
Defend
proof,
a “kicker” that no foundation
laid.
autopsy
qualified
surgeon,
duly
put a
ant
physician, as to whether the manner in which the bodies were
killings
abnormal
mutilated in
course of the
would show an
may
foundation,
be
On the score of lack of
whatever
mind.
‘‘
’
by that,
If the
meant
there are several answers.
foundation'
stipulated
argument
qualification,
parties
refers to
qualifications.
objection
ground
made on
doctor’s
No
*18
If
that
no
it is meant
there was
insufficient foundation.
of
killing
showing
bearing upon
manner of
have a
that the
would
defendant,
of
more
the mental state
the
answers are even
the
mentioned,
In
to those above
it
be
numerous.
addition
should
neither
trial court nor this court knows whether
noted that
the
given
may
opinion
mental
from
physician
a
an
condition
accomplished.
killing
the
the manner
in which
says:
when it
majority opinion
the situation even worse
makes
“
mere
presumed
not
from
examination of
it will
be
that
...
wounds,
autopsy
speculate
the
doctor could do more than
the
. might
mind of the killer . .
have
as
the state of the
to what
”
so
presume
testify,
.
It will
a
could
but
been; . .
doctor
by
holding
conclusively
very
presumes
that
its
it
he could not
In
it
know
testify.
words,
so
other
assumes to
what it holds a
precludes
ascertaining
of what
know,
doctor cannot
Lying
may may
field.
a
not know his
base
doctor
at the
thought
holding
proof
the offer of
be the
that
must
clearly
sufficient,
court
indicated its
that
but the
intent
be
state, would
allowed and
no
of that class—mental
evidence
unnecessary.
(People
proof
Duane,
offer
v.
therefore an
; Caminetti v.
Mut.
21
71
P.2d
Cal.2d
123]
[130
Pacific
Life
;
Calaway,
P.2d
Lawless
94
v.
Co., 23 Cal.2d
741]
Ins.
[142
City
Angeles,
v.
; Eeimann
Los
P.2d
Cal.2d
604]
say
real
597].)
I
that must be the
offered the trial the issue were my opinion, during the committed errors judgment. prejudicial and a justify reversal Traynor, J., concurred. December
Appellant’s petition rehearing for denied Traynor, J., voted Edmonds, J., Carter, J., 1949. rehearing. A. No. 20878. In Bank. Nov. 30, [L. 1949.] (a INDEMNITY INDUSTRIAL COMPANY Corporation), Petitioner, INDUSTRIAL ACCIDENT COMMIS SION, al., HAZEL PAULINE Respondents. SPIDLE et