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tinuance of insanity not conclusive.

the ordinance requiring the giving of a bond 14. Criminal law 311-Presumption of conis or is not a reasonable police regulation, it is evident that the ordinance under consideration goes much further. As argued by petitioner:

"It deprives the solicitor for an outside business house of the right to conduct his business on equal terms with the solicitor for the local business house. It deprives all business houses outside of the city of Sacramento of the right to secure trade in the city of Sacramento on terms that shall be the same as those on which local business houses solicit trade."

Being of the opinion that that portion of the ordinance which discriminates against solicitors representing outside houses and those representing houses within the city of Sacramento, by imposing a heavy burden upon the one and entirely exempting the other, though doing exactly the same kind and character of business and conducted in the same manner, renders section 74 of Ordinance 159, Fourth Series, of the city of Sacramento, null and void, it is hereby ordered that the writ prayed for be, and the same is hereby granted, and the petitioner discharged.

We concur: FINCH, P. J.; HART, J.

PEOPLE v. LITTLE. (Cr. 798.) (District Court of Appeal, Third District, California. Sept. 17, 1924.)

1. Criminal law 625 Trial judge not required to submit accused's present insanity to jury, in advance of trial, where he doubts insanity.

Where a request is made, under Pen. Code, §§ 1367, 1368, to have accused's present insanity determined, trial court is not required to submit that question to jury in advance of trial, where evidence submitted in support of request does not create doubt in judge's mind as to accused's insanity.

2. Criminal law 625-Trial judge's refusal to submit question of accused's insanity held

not error.

Even if presumption that insanity, once shown, continues until contrary is shown is applicable in criminal cases, fact of accused's having previously been committed to an insane asylum, while an important circumstance in tending to establish his later insanity, as when he committed the act for which he was on trial, amounted to no more than a circumstance to be considered with all the other evidence on the question.

5. Criminal law 938(1), 1156(3)-Granting or refusing new trial on ground of newly discovered evidence is discretionary with trial court, whose action is final, in absence of abuse of discretion.

The granting or refusing to grant new trial on ground of newly discovered evidence is discretionary with trial court, whose action is final, in absence of abuse of discretion. 6. Criminal law 945(1)-Refusal to grant new trial on ground of newly discovered evidence held not error.

Refusal to grant new trial on ground of newly discovered evidence held not error, where fact of accused's previous commitment in an insane asylum, sought to be established by such evidence, was admitted by state during trial.

Appeal from Superior Court, Sacramento County; Charles O. Busick, Judge.

E. J. Little was convicted of escaping from state prison, and he appeals from the judgment, and from the order denying new trial. Affirmed.

John S. Daly, of Sacramento, for appellant.

U. S. Webb, Atty. Gen., and J. Charles Jones, Deputy Atty. Gen., for the People.

HART, J. The defendant, a prisoner unstate prison at Folsom, was charged by indergoing a judgment of imprisonment in the formation filed in the superior court of Sacramento county with the crime of escaping from the custody and surveillance of the prison guards while he was employed and engaged in highway work on the outside of said prison. The jury found him guilty as charged, and he appeals from the judgment and the order denying him a new trial. In the month of October, 1923, the defendant was, with other convicts, assigned by the prison authorities to work on the state highways, and at the time of effecting his escape from the custody of the prison guards under whom he was so employed he was en gaged in such employment in Shasta county. Viewing testimony addressed to question while he was so employed, and after he haď On the evening of the 14th of January, 1924, of accused's insanity, raised pursuant to Pen. Code, §§ 1367, 1368, as a defense against partaken of his dinner, he left the camp and charge, it was for jury to determine whether did not return. His absence having been nodefense was sustained by preponderance of ev- ticed by the guards, pursuit of the defendidence upon that question, and jury's verdict | ant was inaugurated, and he was, on the folon the issue is conclusive on appeal.

Trial judge's refusal to submit to jury single question of accused's suggested insanity, pursuant to Pen. Code, §§ 1367, 1368, held not error, in view of unconvincing showing made in support of suggestion.

3. Criminal law 1159(5)-On defense of sanity, verdict held conclusive on appeal.

lowing day, apprehended and taken into cus

(230 P.)

tody by one of the guards while he was [1] The request made by the attorney for some distance from the camp at which he was employed, walking in the direction of the city of Redding. There is no dispute as to these facts, and they are sufficient to support the verdict.

On the arraignment of the defendant, his counsel suggested to the court that he was at that time insane, and requested the court to submit the question of his sanity to a jury prior to putting him upon his trial. This request was supported by an affidavit of the mother of the defendant, in which she gave a history of the life of the accused and detailed facts indicating that from the time that he was six years of age he was disposed to leave home at intervals and remain away for a considerable period of time and then return, not being able to give any reason for his conduct. This predilection for wandering from home, she averred, occurred from time to time until the year 1921, when he was examined in the state of Washington on a charge of insanity and committed by the authorities to the insane asylum, from which, so she further averred, he escaped or "wandered away," and to which he "has never been returned." No counter showing was made by the district attorney, but the court examined the affidavit of the defendant's mother, and stated that the document had not generated in the mind of the judge any doubt as to the defendant's sanity, and ordered the trial of the case to be proceeded with, saying, however:

"If it appears at any time before judgment to the court that the defendant is insane, the court will order the matter submitted to the jury. The court hasn't any doubt as to the sanity at this time."

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After the case for the people was closed, the defendant introduced the affidavit of the defendant's mother. The brother of the de

fendant was called as a witness for the defense. He testified to the peculiar actions of the accused from the time that he was a mere boy, particularly as to his disposition to leave his home without telling any one of his intention to do so and returning at unexpected times. He stated that his brother was possessed of the delusion that people were after him to do him injury or persecute him. On cross-examination by the district attorney, he admitted that his brother had been in much trouble during his lifetime, and had on one occasion served a term in the state prison of the state of Washington for the crime of burglary. He was asked by the district attorney if, as a matter of fact, the alleged hallucination of the defendant that certain people were endeavoring to get hold of him and do him injury or persecute him was not the fear he had of officers being in pursuit of him for the numerous crimes which he had committed from time to time. To this question the brother replied that he did not "think" so.

the defendant before the beginning of the trial to have the sanity of the accused investigated by a jury was based upon sections 1367 and 1368 of the Penal Code. The first named section provides:

"A person cannot be tried, adjudged to punishment, or punished for a public offense, while he is insane."

The section last named reads as follows: "If at any time during the pendency of an action up to and including the time when defendant is brought up for judgment on conviction a doubt arises as to the sanity of the defendant, the court must order the question as to his sanity to be submitted to a jury; and the trial or the pronouncing of the judgment termined by their verdict, and the trial jury must be suspended until the question is de

may be discharged or retained, according to the discretion of the court, during the pendency of the issue of insanity."

It has been held time and again that, while no person can be placed upon his trial for a public offense while he is insane, if the showing made in support of the suggestion that the accused is insane is not such as to create a doubt in the mind of the judge as to his sanity, then the refusal to act upon the request or suggestion will not be held to be error sufficient to warrant a reversal. In other words:

"The doubt referred to in the section is a doubt arising in the mind of the court in charge of the trial, and not of the counsel for the defendant. In the absence of such 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. Fountain, 170 Cal. 460, 150 P. 341.

See, also, People v. Hettick, 126 Cal. 425, 794, 802, 175 P. 6, 9, it is said: 427, 58 P. 918. In People v. Keyes, 178 Cal.

"The right to a jury trial in proceedings inaugurated under said section 1368 is addressed to the sound discretion of the judge before whom the cause is pending, and the showing must be sufficient to create a doubt in the mind of the judge as to the sanity of the defendant before he is required to submit the question to a jury, and we will not disturb his action unless it appears that there was a clear abuse of such discretion."

Furthermore, as shown above, the judge, although declining to hear evidence prior to the defendant being put upon his trial, suggested that he would listen to the evidence taken at the trial of the case, and that, if a doubt thereupon arose in his mind as to his sanity, he would submit the matter to the jury for the purpose of determining that single question. In the case of People v. Hettick, supra, a similar situation is presented, and, as it was said in that case, so it is true here. There the court said:

"It is to be presumed that the counsel for the defendant placed all the evidence tending to show insanity, that he could discover, before the court on the trial. He was entitled to and did introduce testimony as to the mental condition of the defendant at the time of the trial, yet it appears from the record that the judge who heard this evidence never for an instant had any doubt as to the sanity of the defendant. It is not probable that it would have had any different effect on the mind of the court had this evidence been presented before the trial began. The trial judge was in a better position to estimate the evidence than this court can be, and yet, reading the evidence from the printed page, as we have, we can find nothing in it to convince us that the court was wrong in entertaining no doubt at any time as to the defendant's sanity. In the absence of such doubt the court was not warranted in calling a special jury. People v. Geiger, 116

Cal. 440."

[2] The court in this case, in determining whether the defendant's mental condition was such as to justify referring the question of his sanity to a jury for determination, had the right to take into consideration, and no doubt did, that the defendant had been convicted of the crime of burglary in the state of Washington, that he had been convicted of a like offense in the county of Tehama, this state, and that, before being assigned to highway work by the prison authorities, he was, as the evidence shows, subjected to a medical examination by the prison physician. For the same purpose the court also had a right to take into consideration, and doubtless did, that the accused made his escape from the custody of his guards under such circumstances as would tend to indicate that he was in possession of sense enough to know that he was under forced restraint, and knew at the time he was leaving such custody he was wrongfully attempting to release himself from such restraint. At any rate, upon the record before us we cannot say that the court erred in its refusal to submit to a jury the single issue of defendant's suggested insanity at the time of the trial.

[3] So far as the testimony addressed to the question of the defendant's sanity might be regarded as a defense against the charge for which he was on trial, it is to be said that it was for the jury to determine whether the defense was sustained by that degree of proof essential to support such a defense, by a preponderance of the evidence upon that question, and the verdict of the jury is conclusive on this court as against the defendant's plea in that regard.

[4] The attorney for the defendant seems to attach much importance here to the rule that a person once shown to be insane is presumed to continue in that condition until the contrary is shown. Granting, but not here deciding, that that presumption is applicable in criminal cases, the answer to the proposition is that, while the fact of his

having previously been committed to an insane asylum constituted an important circumstance, in that it tended to establish that the defendant was either insane at the time he committed the act or at the time that the trial was had, or on all occasions, yet it amounted to no more than a circumstance to be considered by the court or the jury with all the other evidence on that question, in determining the issue of insanity.

not granting the defendant a new trial on [5, 6] It is claimed that the court erred in the ground of newly discovered evidence. The newly discovered evidence consisted, entirely of the commitment of the accused by the authorities of the state of Washington to the insane asylum of said state in the year 1921. The matter of granting or refusing to grant a new trial is largely in the discretion of the trial court, and, unless the showing made is such as to warrant the conclusion, upon an inspection of the record, that the court below abused its discretion in denying a motion for a new trial, the action of the court in that regard cannot be disturbed on appeal. It is clear that the "newly discovered evidence" upon which counsel relied for a new trial added nothing to what was shown at the trial of the defendant, it having been expressly admitted by the counsel for the people that the defendant was, at the time mentioned in the commitment, committed to the insane asylum in Washington on a charge of insanity, and was an inmate of the institution for a number of months.

No other questions are presented.
The judgment and the order are affirmed.
We concur: FINCH, P. J.; PLUMMER, J.

PEOPLE v. WEBER. (Cr. 804.) (District Court of Appeal, Third District, California. Sept. 17, 1924.)

Criminal law 302(1)-Affidavit held not to show defendant denied right to public examination before committing magistrate.

Affidavit, not shown to have been introduced in evidence or considered at hearing on motion to dismiss information for escape from state's prison, and stating that preliminary examination was held behind prison walls in Warden's office, and not showing that such office was not open to general public during examination, held not to show that defendant was denied right to public examination before committing magistrate.

Appeal from Superior Court, Sacramento County; John F. Pullen, Judge.

Albert Weber was convicted of escaping from state prison, and appeals. Affirmed.

Albert Weber, in pro. per.

(230 P.)

U. S. Webb, Atty. Gen., and J. Charles Jones, Deputy Atty. Gen., for the People.

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FINCH, P. J. The information charges that the defendant was "a prisoner lawfully committed to the state prison at Folsom for a term less than life; and * * * while at work outside such prison, to wit, in the county of Shasta, state of California, under the surveillance of prison guards of said Folsom prison, did willfully, unlawfully, and feloniously escape from the surveillance of said prison guards." The charge was proved by uncontradicted evidence, and the jury returned a verdict of guilty. The defendant prosecutes this appeal from the judgment.

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The defendant moved the trial court to dismiss the information on the ground, in substance, that he had not been legally committed by a magistrate. The particular ground of objection made was that defendant was denied his constitutional right to a public examination before the committing magistrate, "in that the trial was not had in any justice court, but was had behind prison walls, that is to say, in the office of the warden of the California state prison, situate in the prison inclosure of the Folsom state prison." In People v. Tarbox, 115. Cal. 57, 62, 46 P. 896, 897, it is said: "There can be no question that a defendant has the 'right' to a public examination before the committing magistrate."

214 P. 1003; People v. Lewis, 61 Cal. App. 280, 214 P. 1005; People v. Vanderburg (Cal. App.) 227 P. 621; People v. Upton (Cal. App.) 228 P. 50.

The judgment is affirmed.

We concur: HART, J.; PLUMMER, J.

In re BARR'S ESTATE. (Civ. 4760.) (District Court of Appeal, First District, Division 1, California. Sept. 26, 1924. Hearing Denied by Supreme Court Nov. 21, 1924.) 1. Wills 300-Trial court warranted in believing contestant's evidence and disbelieving proponent's.

The trial court in a will contest, tried before it without a jury, was warranted in believing as true all evidence in support of contestant's claim unless it was inherently so improbable as to be entirely unworthy of belief, and in disregarding as untrue all evidence on behalf of proponent which was contradicted or otherwise impeached.

2. Wills

400-Evidence to be interpreted to support finding where reasonably possible.

facts in will contest, tried before court without
It is duty of appellate court in reviewing
jury, to interpret evidence so as to support
finding to extent that it is reasonably suscep-
tible thereto in light of rule as to trial court's
right to believe or disbelieve evidence.
3. Wills 400-Finding of trial court, sup-
ported by substantial evidence, not set aside.
In will contest, tried before court without

L

testator's mind before and after testamentary act, relevant.

In proceedings to probate will, contested for testamentary incapacity of testator, evidence to show condition of testator's mind before and after date of testamentary act was relevant as bearing upon condition of his mind when will was executed.

It was held, however, that the defendant jury, questions of weight of evidence and credhad waived his right to a public examina-ibility of witnesses are for court, and, where tion. The statement quoted, therefore, was finding is supported by substantial evidence, it not necessary to the decision. Assuming that cannot be set aside by reviewing court. the law is as so stated, the record fails to 4. Wills 53(2)-Evidence as to condition of show that defendant was denied his right to a public examination. There appears in the clerk's transcript a copy of an affidavit made by defendant. There is nothing in the record showing that such affidavit was introduced in evidence or considered at the hearing on the motion to dismiss the information. Further, if the affidavit were properly authenticated, it does not show that the examination was not public. The affidavit states that the preliminary examination was "held behind prison walls, that is to say, in the office of the warden of the California state prison, situated in the prison inclosure and prison walls of the Folsom state prison." There is nothing in the affidavit showing that the warden's office was not open to the general public during the examination or that the public, or any part thereof, was excluded therefrom.

All other points made by appellant have been considered and decided against his contentions in one or more of the following cases: Bradford v. Glenn, 188 Cal. 350, 205 P. 449; People v. French, 61 Cal. App. 275,

5. Wills 55(1)—Evidence on issue of mental unsoundness sufficient to sustain verdict adverse to will.

In proceedings to probate will, contested for testator's incapacity and mental unsoundness, conflicting testimony on such issues held sufficient to justify finding adverse to will.

Appeal from Superior Court, City and County of San Francisco; James M. Troutt, Judge.

Application of Mabel W. Barr for probate of alleged will of William George Barr, deceased, contested by George R. Stiles. From judgment denying admission of will to probate and denying new trial, proponent appeals. Affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Byron Coleman, of San Francisco, for ap-sues thus made was tried by the court sitpellant. ting without a jury. The trial court found J. J. Dunne and James Walter Scott, both that on September 6, 1914, and at the time of San Francisco, for respondent.

ST. SURE, J. William G. Barr, an adjudged insane person, died on May 27, 1916, while an inmate of the state hospital for the insane at Agnews, leaving an estate valued at approximately $12,000. Mabel W. Barr, his wife, survived him as his only heir. In due time Mrs. Barr offered for probate a document in words and figures as follows:

"Belmont, Sept. 6, 1914.

"I, William G. Barr, being of sound mind, and in every way well physically and mentally, do leave all I possess to my wife Mabel W. Barr-hereby revoking former wills if any.

"Wm. G. Barr."

In her petition Mrs. Barr alleged the usual jurisdictional facts, and that the aforesaid instrument was entirely written, dated, and signed by the hand of said William G. Barr and is his last will and testament.

Thereafter George R. Stiles filed his opposition to the probate of said instrument wherein his interest and his ground of contest are alleged as follows:

of the purported execution of aforesaid written instrument that Mr. Barr was insane, incompetent, of unsound mind, and not competent to make a will. From its findings the trial court concluded that aforesaid written instrument was not the last will and testament of William G. Barr, sustained the opposition, and denied probate. Judgment was entered accordingly. Proponent moved for a new trial upon the ground of the insufficiency of the evidence to justify the decision, and that the decision was against law. Motion for new trial was denied, and proponent appeals from the judgment.

Substantially the facts are these: The time and place of decedent's birth are unknown. The first knowledge of him, he was an inmate of a San Francisco foundling asylum, and of the age of 2 years. Nothing is known of the characteristics, environment, or mode of life of his immediate progenitors or family. He was an abandoned child. When he was 8 years of age he was legally adopted by a resident of San Francisco. He had resided with his adopter since he was 2 years old. He received schooling at a grammar and high school. He obtained employment in the office of an insurance company and accumu

"That he is the sole legatee and devisee of said William George Barr, deceased, under the terms and provisions of an holographic will executed by said William George Barr, de-lated sufficient money to enable him to atceased, on the 5th day of November, 1912; tend a preparatory school in Massachusetts. that said will so executed on said 5th day of November, 1912, is the last will and testament of said William George Barr, deceased; that at the time of the execution of the said will dated November 5, 1912, said William George Barr was of sound and disposing mina, and not acting under menace, fraud, duress, or undue influence of any kind, and that said last-named will is a valid one, and is, as this contestant alleges entitled to be admitted to probate as the last will and testament of said deceased; that the alleged will and testament bearing date September 6, 1914, ought not to be admitted to probate as the last will and testament of said William G. Barr for the reasons hereafter set forth.

"(1) That said paper writing is not the last will and testament of said decedent in that said William G. Barr was insane, incompetent, and of unsound mind at the time of the execution of said paper writing, and was by reason thereof not competent to make a will;

"(2) That the said William G. Barr was not of sound and disposing mind on the 6th day of September, 1914, the date of the alleged execution of said will; that on the contrary he

was at said time of unsound mind and insane, and was confined to and an inmate of an asylum for the insane at Belmont, Cal.;

He entered Harvard University, where he obtained his academic degree. While at Harvard he devoted about one year to the study of law. Returning to San Francisco from Harvard he entered Hastings College of the Law, from which he received his professional degree. He was admitted to the bar, opened an office in San Francisco for the practice of the law, yet he never actively engaged in practice, but devoted his attention to real estate, oil, and accounting matters.

During the earlier period of his life decedent held a responsible position with a life insurance company. He is described as a friendly, genial, pleasant, sociable man; interested in general current topics. He did not use vulgar, obscene and scurrilous language; and his method of expressing himself was always that of a gentleman. He took much pleasure in innocent social enjoyment; he liked cards, dancing, dinner and house parties. He was very bright; not

taciturn.

He was not suspicious of others, nor subject to delusions or eccentricities of any kind.

"(3) That the said decedent was not at the In January, 1907, decedent became a lodtime of the alleged execution of said paper ger in the home of Mr. George Wilbur in writing, dated September 6, 1914, competent to San Francisco, where he met Mabel W. Wilmake and publish a will, or to make any tes- bur, whom he subsequently married. Decedtamentary disposition whatever of his prop-ent was then in his thirty-third year. A erty." warm friendship between the deceased and Mabel W. Barr, proponent, made answer the members of the Wilbur household was

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