People v. Kirby

The defendant was informed against in the superior court of the city and county of San Francisco for the crime of murder, and found guilty of manslaughter. The killing was admitted, and the defense was insanity. This appeal is from the final judgment of conviction, and the order of the trial court denying the defendant’s motion for a new trial.

Counsel for the defendant presents to this court three questions for consideration and determination, namely: 1. The refusal of the trial court to submit the question of the defendant’s “present insanity” to a jury for determination prior to the trial of the case upon its merits; 2. The refusal of the trial court to suspend the pronouncing of judgment because of the alleged “present insanity” of the defendant; and 3. Asserted error of the court in refusing and modifying certain instructions requested upon behalf of the defendant.

While the subject matter of the quoted statement is not one of the grounds of a motion for a new trial enumerated by section 1181 of the Penal Code, and therefore could not properly be considered on the original hearing or final review of such a motion, yet it serves to indicate that counsel for the defendant and the trial court moved and acted in the premises upon the assumption that the defendant, through his counsel, intended and attempted to move the court to submit the question of the defendant’s present insanity to a jury in advance of the trial. When in a criminal case it is sufficiently clear from the entire record, as it is here, that a defendant

No procedure is provided in our code for presentation to a trial court of any fact or facts which would be calculated to create a doubt in the mind of the court as to the sanity of a defendant in a criminal ease. It is, however, the plain and humane mandate of the law (Pen. Code, sec. 1367) that no person shall be compelled to defend against a criminal charge while he is insane; and whenever and however up to and including the time of judgment a doubt of the present and presumed sanity of a defendant in a criminal case is created in the mind of the court having him in charge, it becomes the duty of that court, with the aid of a jury especially impaneled for that purpose, to inquire into the then mental condition of the defendant (Pen. Code, sec. 1368)—this for the purpose of ascertaining if the defendant rightly comprehends the nature and object of the proceedings pending against him, and is mentally competent to make a just and rational defense.

No oral or documentary evidence was presented to the court by the people in rebuttal of the facts alleged in the affidavit referred to. Counsel for the defendant earnestly urges that, in the absence of such rebuttal, the averments of the affidavit must be accepted as true; and, if true, were sufficient to create and must have created, in the mind of the court a doubt of the defendant’s present sanity. Doubtless the facts alleged in the affidavit would have been sufficient foundation for a commitment of the defendant to an asylum for the insane upon the theory that he was so far medically insane as to be dangerous to be at large. But “the insanity which demands' that a person should be confined in an insane asylum is not the same insanity which bars the prosecution of that person for the commission of a felony.” (In re Buchanan, 129 Cal. 333 , [ 61 Pac. 1120 , 50 L. R. A. 378 ].) We are not prepared to say as a matter of law that the affidavit relied upon was sufficient in any one or all of the facts alleged therein to necessarily create a doubt in the mind of the court as to whether or not the defendant was then legally insane in the sense and to the extent that he did not appreciate his situation, and was incompetent mentally to assist in making and presenting a

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 ].)

The denial by the court of the motion in question was the equivalent of an express finding that no doubt of the defendant’s then mental condition was present in the mind of the court. We are not prepared to say from all of the evidence presented to and before the trial court upon the hearing of the motion that the court abused the discretion vested in it by the provisions of section 1368 of the Penal Code.

“An insane person cannot be . „ . adjudged to punishment or punished for a public offense while he is insane” (Pen. Code, see. 1367); but the present insanity of a defendant about to be arraigned for judgment upon a criminal conviction is not a ground for a motion in arrest of judgment (Pen. Code, sec. 1185), and therefore, from a technical point of view, the motion in arrest of judgment was properly denied.

But aside from this, and treating all that occurred at this juncture in the proceedings as an objection to the pronouncing of judgment because of the present insanity of the defendant, the refusal of the court to suspend judgment in the face of the objection was a sufficient indication that the mind of the court was still free from any doubt as to the sanity of the defendant. The evidence submitted in support of the objection was not, in our opinion, of such a character as would necessarily cause the court to ’ hesitate before pronouncing judgment.

Counsel for the defendant complains that the trial court’s modification of defendant’s requested instruction No. 52 withdrew from the jury the right to consider the defendant’s alleged insanity at the time of the trial as a factor in determining his mental condition at the time of the killing. This instruction as originally presented and requested directed the jury to bring in a verdict of acquittal if the evidence warranted a finding that the defendant was insane at the time of the trial. The court’s modification of this instruction re

Two witnesses, both medical gentlemen, were called in rebuttal of the case presented upon behalf of the defendant. They, as experts, testified that- in their respective opinions the defendant was sane at the time of the trial, and was sane at the time of the commission of the crime charged. The defendant’s attorney now insists that the court erred in its refusal to charge the jury, as requested, that “If there is any reasonable doubt of the facts upon which the opinion is based the jury should take this into consideration in weighing the opinion of the experts.”

The equivalent of this instruction is to be found elsewhere in the charge of the court. Moreover, no principle of law was embodied in the subject matter of the instruction. It would

The court’s modification of defendant’s requested instruction numbered 55 did not destroy its effect. The instruction as modified correctly stated the law upon the subject of the defendant’s neglect or refusal to offer himself as a witness in the case. That counsel had advised him not to take the witness-stand was not a matter for the jury’s consideration.

We have examined the several other assignments of error, predicated upon the court’s modification or refusal of requested instructions, and are satisfied that in every instance of modification or refusal the subject matter of the requested instruction was elsewhere fully and fairly covered by the charge of the court.

Counsel for the defendant devotes the closing pages of his brief to a cursory review of the evidence pertaining to the defendant’s mental condition at the time of the commission of the offense. The finding of the jury, implied from the verdict, that the defendant was then sane is not specifically assailed. However, it appears to be counsel’s purpose to urge upon this court a review of the evidence, and with that thought in mind we have carefully gone over the entire record. We are impressed with the strength and bona fides of the special defense interposed upon behalf of the defendant; but upon the whole case the evidence—fact, presumptive and opinion— is sufficiently conflicting to preclude this court from forming or expressing any opinion of its sufficiency.

The point incidentally made that no foundation was laid for the expert opinions of the defendant’s mental condition at the time of the tragedy was not urged in the form of an objection at the trial of the case, and therefore it cannot be considered here.

The judgment and order are affirmed.

Hall, J., and Kerrigan, J., concurred.