75 P. 1090 | Cal. | 1904
Lead Opinion
Defendant was convicted of the crime of murder in the first degree and was sentenced to suffer the penalty of death. He appeals from the judgment and from an order denying his motion for a new trial.
The sole defense of appellant was insanity. The only point in the case which seems to call for a discussion is raised by appellant's objection and exception to the thirteenth instruction given by the court at the request of the prosecution, *338
which is as follows: "You are not to consider whether or not the defendant is insane at the present time, but you are to consider him as now sane. A person charged with crime cannot be legally tried for such crime, unless he be sane at the time of the trial. The defendant has presented the issue to you that, at the very time of the alleged commission of the homicide, he was insane. As I have already told you, the burden of proving his insanity at that time by a preponderance of evidence rests upon him, because the law presumes he was then sane." If this instruction must be construed as telling the jury that in determining whether or not the appellant was insane at the time of the commission of the alleged crime they could not consider any evidence tending to show that he was insane at the time of the trial, it is erroneous. It is the well-established rule that in determining whether at a certain date a person was insane, a jury may consider his acts, conduct, appearance, etc., prior to and after the said date, and that, if he is on trial for a crime alleged to have been committed at such date, evidence of his insanity at the time of his trial may be considered. (1 Greenleaf on Evidence, sec. 42; People v. Farrell,
There are some other points made by appellant, but no one of them is available for a reversal, and they do not call for special notice. It is enough to say that there was no error in giving the fifth, tenth, and eleventh instructions asked by the people, or in refusing the sixteenth, thirty-fourth, forty-second, forty-fourth, fifty-fourth, and fifty-sixth instructions asked by appellant, or in modifying what is called in the brief the fifty-fifth instruction asked by him and found at folios 756 and 759 of the transcript, or any substantial error in any ruling on the admissibility of evidence or on any other subject.
The judgment and order appealed from are affirmed.
Shaw, J., Angellotti, J., Van Dyke, J., and Lorigan, J., concurred.
Dissenting Opinion
I dissent. It is hardly correct to say that the instructions "held not to be ground for reversal" in the cases of Schmitt, McCarthy, and Donlan were in the "exact language" of the thirteenth instruction of the superior court in this case. It is true that in the Schmitt *340
case, as in the McCarthy case, an instruction was given in the "exact language," but other instructions were given along with it which were held to qualify it and to prevent it from being understood in an injurious sense, and in the Donlan case the substance of these qualifying instructions was incorporated with the other so as necessarily to be read in connection with it. Moreover, the instruction as so qualified was not approved, but merely tolerated or excused for reasons totally wanting in this case, — the principal of which was, that no suggestion was made during the trial that the defendant was insane nor any witnesses examined as to his sanity at that time. (People v. Schmitt,
The error of the court in giving this instruction is made more striking by the fact that the district attorney requested in behalf of the state an instruction copied from that given inPeople v. Donlan,