People v. Fountain

Defendant was convicted of murder in the first degree and sentenced to death. He appeals from the judgment and from an order denying his motion for a new trial.

We make this general statement of the facts because no point is made that the evidence was insufficient to sustain a verdict of murder. No testimony in the ease of any character was introduced by the defendant. While it was suggested by proceedings to be presently noted that the defense of insanity of the defendant at the time of the commission of the crime might be interposed, no testimony on his part was offered. The case went to the jury solely on the evidence presented by the prosecution. While we say that the sufficiency of the evidence so offered to sustain a conviction of murder is not challenged by the defendant, his counsel, however, do make the point that it was not sufficient to sustain a verdict of murder of the first degree on the theory that the evidence does not show that the killing of the child was done in the perpetration, or attempt to perpetrate, rape upon her which by force of the statute would constitute murder of the first degree. (Pen. Code, sec. 189.) Little need be said on this point. Taking the confession of the defendant as showing that no attempt to commit rape upon the child was made, nor other evidence in the ease tending to show it, the evidence nevertheless does show that she was deliberately strangled to death by the defendant in connection with a violent and brutal attack upon her person in an unnatural gratification of his passions, and beyond any question her death under such circumstances war

The principal grounds urged by counsel for the appellant for a reversal are: 1. That the court erred in denying their application for a continuance of the trial of the defendant until they could procure the testimony of certain persons residing in the state of Iowa as to the insanity of the defendant; and, 2. The denying of their motion requesting that the question of the sanity of the defendant at the time when said motion was made be tried by a jury called exclusively for the purpose of determining that question.

As to the motion for a continuance. The indictment against the defendant was filed December 8, 1914. On December 15, 1914, the present attorneys for defendant were appointed by the court to defend him, the defendant having no means with which to employ counsel in his defense. On December 19, 1914, the court fixed February 16,1915, as the time of the trial of defendant. On the last date and when the cause was called for trial counsel for defendant moved for a continuance, presenting in support of their motion three affidavits of one of them, together with the offer of notice of a motion served a few days previously, and to be heard on February 23, 1915, for the issuance of a commission to take the testimony of several witnesses residing in the state of Iowa.

The first affidavit alleged on information and belief that defendant had been an inmate of an insane asylum in the state of Iowa, committed to such asylum in the year 1887 by the constituted authorities of said state according to law, and that defendant had escaped from said asylum. The second affidavit stated simply that the testimony of certain witnesses residing in Iowa was material to the defense of defendant. The third affidavit stated that counsel had written to various parties residing in Iowa making inquiries about the life, history, and environment of the defendant; that he had received replies from some of these persons tending to show the insanity of the defendant; that he had received a number of communications from an attorney at Shenandoah, Iowa, expressing his opinion that defendant was insane and that he could get a large number of witnesses to testify to the insanity of defendant if opportunity to do so were given him; that he was collecting data for the purpose of securing such testimony; and that

Taking these affidavits singly or collectively they were insufficient as a showing upon which to ground a motion for a continuance. If, as counsel asserts, he was informed that the defendant had been committed to an asylum in Iowa in 1887, there is no showing whatever why in the interim of sixty days between the date of setting the cause for trial and that fixed for the trial, counsel could not have procured a certified copy of the order or judgment of commitment or other papers in the matter, if any such really existed, to be offered upon the trial. Nor does it appear that the insanity of the defendant which warranted his commitment to an asylum in Iowa in 1887 was of such a character as would have any bearing on the question of the degree of insanity which must exist to relieve him of responsibility for the crime with which he was charged; that is, a mind so diseased as to be incapable of distinguishing between right and wrong. It is well known that one may be suffering from a peculiar mental derangement or particular phase of insanity which would authorize his confinement in an asylum for care and treatment but who would yet have sufficient mental capacity to understand the nature and character of his actions and to distinguish between right and wrong, and, hence, to be accountable under the law for his criminal conduct. (People v. Willard, 150 Cal. 553 , [ 89 Pac. 124 ].) As to the matter of the ascertainment of the actual existence of this commitment or the nature of the insanity of the defendant as disclosed by it, if it existed, nothing definite is shown or stated. It does not appear even that counsel had ever entered into any correspondence or took any measures to ascertain, or that he did definitely ascertain, the existence of any such commitment or record. No diligence in this matter is shown at all. The second affidavit is clearly insufficient. .It simply states that the testimony of certain named witnesses residing in Iowa is material to the defendant. It does not contain any statement of a single fact or item of evidence which it is expected the witnesses would testify to. It was necessary to show what facts it was expected these witnesses would testify to in order that the court might determine whether the testimony it was expected they would give would be material to the defendant and so warrant the granting of a continuance by the court until it could be obtained.

As to the refusal of the court to call a jury to try the then sanity of the defendant. This motion was made on the day set for the trial of the cause and preceded the motion for a continuance. It was made under section 1368 of the Penal Code which provides that “If at any time during the pendency of

The doubt referred to in section 1368 of the Penal Code, upon the existence of which a trial of the present sanity of a defendant must be had is a doubt arising in the mind of the court having the defendant in charge. (People v. Hettick, 126 Cal. 425 , [ 58 Pac. 918 ].) Counsel for appellant assume that a doubt of the sanity of defendant must legally have been engendered in the mind of the court on the affidavit of counsel expressing his belief that defendant was then insane, coupled with the further averment of the escape of defendant from an asylum in Iowa to which he had been committed some twenty-eight years before. But the court was not constrained to entertain this doubt simply because counsel entertained such a belief proceeding from some conversations with defendant or the suggestion of a previous commitment and escape. All that was presented on the hearing of the motion was this affidavit of counsel. There was no evidence, oral or documentary, introduced on the subject. But opposed to these matters stated in the affidavit of counsel for defendant, as is said in People v. Kirby, 15 Cal. App. 264 -269, [ 114 Pac. 794 ]: “It is fair to assume that the trial court had ample opportunity to, and did, as was its duty, observe and note the defendant’s mental condition from time to time, and in particular on the date when his present insanity was suggested. The knowledge thus acquired may have contributed largely toward rebutting any possible inference of present legal insanity which might have been deduced from the facts stated in the affidavit. Section 1368 of the Penal Code contemplates that the doubt referred to therein must arise in the mind of the court having a defendant in charge (People v. Hettick, 126 Cal. 425 , [ 58 Pac. 918 ] ; Webber v. Commonwealth, 119 Pa. 223 , [ 4 Am. St. Rep. 634 , 13 Atl. 427 ]); and in the absence of such a doubt the court is not required to submit the question of the defendant’s present insanity to a jury in advance of the trial. (People v. Geiger, 116 Cal. 440 , [ 48 Pac. 389 ].)

We have noted and considered all the points urged on this appeal. The evidence amply supports the verdict and there being no merit in the other assignments of error the, judgment and order appealed from are affirmed.

Sloss, J., Shaw, J., Lawlor, J., Melvin, J., and Angellotti, C. J., concurred.

Rehearing denied.