THE PEOPLE, Respondent, v. JOE TROCHE, Appellant, 206 Cal. 35

WASTE, C. J. The appellant was charged with the murder of Mary Lorenzo, the killing occurring upon a trip to Nevada, where, according to appellant’s story, they intended to be married. On the morning of November 20, 1927, a stockman residing at Negro Hill, Placer County, found the appellant seated back of the steering wheel of an automobile standing on the side of the road. He was in a reclining position, covered with blood, and with a gunshot wound in his head. On the right side of the car was the dead body of the girl.

Her death had been caused through severance of the spinal cord from a gunshot wound passing through her neck from left to right. Appellant, who was able to talk, and to walk with assistance, stated to the stockman that he had killed the girl after a quarrel. He also stated to the constable, immediately called to the scene, that he had killed the girl. He made similar statements during his stay in a sanitarium in which he was placed during the time prior to his removal to the county jail. He signed a written statement containing a history of the affair in the office of the district attorney.

On arraignment the defendant entered a plea of not guilty, and also a plea of not guilty by reason of insanity. When the cause came on for trial the court announced that it would submit the trial of both issues to the one jury then about to be selected, and explained to the prospective jurors the nature of the issues raised by the two pleas and the procedure to follow. On the voir dire the jurors were examined by the court as to their state of mind on each plea.

When the examination of the jurors was completed, and those selected were sworn to try the cause, defendant, through his counsel, demanded of the court to know if, during the trial on the issue of not guilty, the defense would be permitted to offer evidence tending to prove the insanity of the defendant at the time of the alleged commission of the offense, and was informed that it would not, for the reason, assigned by the court, that on the trial of the issue of not guilty the defendant was “conclusively presumed to be sane.” The defendant, testifying in his own behalf on the trial of the issue of not guilty, claimed that he had no recollection or knowledge of how the tragedy occurred, and remembered nothing of what happened between the time he was driving in the automobile with the deceased and the time he was taken to the county jail.

On cross-examination, however, he gave minute details of the trip, and identified doctors, nurses, officials and other people who had seen and talked with him during his stay in the sanitarium and jail, and during the period when he claimed to have no recollection. At the conclusion of the trial of the first issue, which the court restricted to the circumstances connected with the offense and the subsequent conduct of the defendant, the jury returned a verdict of guilty of murder in the first degree, without recommendation.

Over the objection of the defense the trial court then directed that the question of the insanity of the defendant, raised by the plea of not guilty by reason of insanity, be forthwith submitted to the same jury which had just rendered the verdict of guilty. At the conclusion of the trial of the second issue the jury returned its verdict that the defendant was sane at the time of the commission of the offense. The trial court thereupon pronounced its judgment and sentence that the defendant be executed on a day fixed.

Prom the judgment and from the order denying his motion for a new trial the defendant has appealed. The principal arguments for reversal in the case center in an attack on the constitutionality of the recently enacted law prescribing the procedure to be followed when a person accused of the commission of a penal offense interposes a plea of not guilty together with a plea of not guilty by reason of insanity. (Pen. Code, sees. 1016, 1020, 1026.) The questions presented in the instant attack on the validity of the code sections are involved in a number of eases now on appeal to this court.

It was because of that fact that a re-argument and resubmission of this case was ordered.

Section 1016 of the Penal Code, which was amended in 1927 (Stats. 1927, p. 1148), to provide for the interposition of a fifth plea, “not guilty by reason of insanity,” has already been considered by this court and its validity upheld. (People v. Hickman, 204 Cal. 470 [268 Pac. 909]; see, also, the more recent case touching the subject, People v. Davis, 94 Cal. App. 192 [270 Pac. 715].) The provisions of

section 1017, also amended in 1927 (Stats. 1927, p. 1149), and which prescribe the form in which pleas to an indictment or information must be entered upon the minutes of the court, being directory and procedural, and not in any way involving any substantive rights of a defendant, are not called in question.

Section 1020 of the Penal Code, also amended in 1927 (Stats. 1927, p. 1149), provides that matters of fact tending to establish a defense under certain pleas, including that of not guilty by reason of insanity, may not be given in evidence under the plea of not guilty.

Section 1026 (new in 1927; Stats. 1927, p. 1149) provides that “when a defendant pleads not guilty by reason of insanity, and also joins with it another plea or pleas, he shall first be tried as if he had entered such other plea or pleas only, and in such trial he shall be conclusively presumed to have been sane at the time the offense is alleged to have been committed.

If the jury shall find the defendant guilty, . . . the question whether the defendant was sane or insane at the time the offense was committed shall be promptly tried, either before the same jury or before a new jury, in the discretion of the court. In such trial the jury shall return a verdict either that the defendant was sane at the time the offense was committed or that he was insane at the time the offense was committed.

If the verdict or finding be that the defendant was sane at the time the offense was committed the court shall sentence the defendant as provided by law.” Then follows a provision as to the procedure to be taken in the event the verdict or finding be that the defendant was insane at the time of the commission of the offense, a question not here involved. The particular provisions just noted, and which were strictly followed, are the ones here under attack.

The arguments touching the validity of these provisions have been advanced from three points of view: First, that the present law affects the substantive rights of persons accused of crimes, and is unconstitutional and void in that it deprives a defendant of due process of law, and is an invasion of the guaranteed right of a citizen of this state to a common-law jury trial; second, that, when properly construed, the statute eliminates from the consideration of the jury during the trial of the general issue the question of the “legal insanity” of the defendant—the only kind of insanity which excuses one from punishment for a crime committed— but does not prevent the introduction of evidence tending to establish the mental condition of the accused at the time the offense was committed, for the purpose of showing a lack of criminal intent, malice, or premeditation, such evidence to be also considered by the jury, in the exercise of its discretion in a trial for murder, in fixing the degree of the crime and the punishment at life imprisonment or the extreme penalty, if it finds the offense to have been murder in the first degree; third, and in support of the validity of the law it is argued that the amendments in question relate merely to procedure in jury trials, and not to substantive law; that the procedural steps provided in no way infringe upon any rights secured to a defendant by the common law, or by the state and federal constitutions.

So far as the common law is concerned, it has no application to this particular question except in so far as it has been incorporated into our law by statutory enactment and judicial decision. It was but natural that the framers of the first state constitution and those called upon to first construe the provisions of that document should turn to that system of jurisprudence with which they were most familiar for precedents in enactment and construction. But when California became organized as a state it began to enact its own statutes to take the place of the provisions of the common law.

In 1872 it departed entirely from the ranks of the “common law states,” and, following the example particularly of the state of New York, it became a “code state.” It enacted four codes, to wit: a Political Code, a Civil Code, a Code of Civil Procedure, and a Penal Code, and declared that each established the laws of the state respecting the subjects to which it related.

One of the first provisions (sec. 4) in the Penal Code is that “the rule of the common law that penal statutes are to be strictly construed” has no application to that code, but that, to the contrary, “all its provisions are to be construed according to the fair import of their terms with a view to effect its objects and to promote justice.” In the same numbered

section of each of the other codes it is declared that the rule of the common law that statutes in derogation thereof are to be strictly construed has no application to such code. At the same time it was enacted that the common law, if repugnant to or inconsistent with the constitution of the United States or the constitution or laws of this state, shall not be the rule of decision in the courts of this state. (Pol.

Code, sec. 4468.) So long as the substance of the right to trial by jury, as guaranteed by the constitution, is preserved, the procedure by which this result is reached is wholly within the discretion of the legislature, and the courts may not set aside any legislation in this respect because the form of action—the mere manner in which the questions are submitted—is different from that which obtained at the common law. (Walker v. New Mexico & S. P. R. R. Co., 165 U. S. 593, 596 [41 L. Ed. 837, 841, 17 Sup. Ct. Rep. 421, 422, see, also, Rose’s U. S.

Notes].) We are also satisfied that the present statutes in no way violate the “due process” provisions of either the federal or the state constitutions. The words ‘‘ due process of law” merely mean law in its regular course of administration, according to prescribed forms and in accordance with the general rules for the protection of individual rights. (Kallock v.

Superior Court, 56 Cal. 229, 240.) Due process of law is not limited to the due process of the settled usages of the past, but may include new methods of procedure unknown to the common law, provided they are in harmony with the accepted underlying principles of such procedure according to the traditions of the common law. They must be orderly and provide for reasonable notice and opportunity to be heard. (Hurtado v. California, 110 U. S. 516 [28 L. Ed. 232, 4 Sup. Ct. Rep. 111]; Twining v. New Jersey, 211 U. S. 78 [53 L. Ed. 97, 29 Sup. Ct. Rep. 14, see, also, Rose’s U. S. Notes].) Mr.

Cooley, in his work on Constitutional Law, says (p. 224): “When life and liberty are in question there must, in every instance, be judicial proceedings; and that requirement implies an accusation, a hearing before an impartial tribunal with proper jurisdiction, and a conviction and judgment, before the punishment can be inflicted. But the states will prescribe their own mode of proceeding and trial.” (See, also, People v. Hickman, supra.) Neither does the present law deprive an accused person of any of the essentials of a common-law jury trial. The state constitution (art.

I, sec. 7) declares that “the right of trial by jury shall be secured to all, and remain inviolate, ’ ’ but does not define what that trial is. Whatever the framers of the constitution may have had in mind, it seems to be thoroughly settled that the constitutional guarantee refers to the right to a trial hy a jury as known at common law. (In re Mana, 178 Cal. 213, 214 [L. R.

A. 1918E, 771, 172 Pac. 986].) Juries at the common law were not always the same, but, through changing conditions and gradual development, it came about that a jury for the trial of a cause was established to be “a body of twelve men, described as upright, well qualified and lawful men, disinterested and impartial, not of kin nor personal dependents of either of the parties, having their homes within the jurisdictional limits of the court, drawn and selected by officers free from bias in favor of or against either party, duly impaneled under the direction of a competent court, sworn to render a true verdict according to the law and the evidence given them; who, after hearing the parties and their evidence, and receiving the instructions of the court relative to the law involved in the trial, and deliberating, when necessary, apart from all extraneous influences, must return their unanimous verdict upon the issues submitted to them.” (Opinion of Justices, 41 N.

H. 550, 551, quoted approvingly in Capital Traction Co. v. Hof, 174 U. S. 1, 15 [43 L. Ed. 873, 19 Sup. Ct. Rep. 580, 586, see, also, Rose’s U. S. Notes].) To the same effect, but more concisely stated, was the first definition of a trial jury adopted by the legislature in this state.

Section 193 of the Code of Civil Procedure, enacted in 1872, read: “A trial jury is a body of men returned from the citizens of a particular district before a court or officer of competent jurisdiction, and sworn to try and determine, by unanimous verdict, a question of fact.” Other than an amendment adopted in 1880, striking out the word “unanimous,” in order to permit of a verdict by three-fourths of the jury in civil cases, in accordance with the provision of the new constitution adopted in 1879, and another amendment in 1917, substituting the word “persons” for the word “men,” in order to provide for women jurors, the definition of a jury in this state has remained the same.

It is therefore manifest that there is nothing in the new enactments to in any way interfere with the constitutional right of a citizen to a trial by jury, as established by the common law and guaranteed by the federal and state constitutions. (See Smith v. Western Pac. R. Co., 203 N. Y. 499 [Ann. Cas. 1913B, 264, 40 L. R. A. (N. S.) 137, 96 N.

E. 1106].) It has been very earnestly argued that the provision that, during the trial of the first issue, one who has interposed the plea of not guilty by reason of insanity shall be conclusively presumed to have been sane at the time of the commission of the offense—the question of his sanity to be subsequently determined, if he be found guilty of the offense charged— amounts to a splitting of the issues and a trial by piecemeal. This contention rests upon the proposition that the issue of not guilty under the first plea contains within it the issue of sanity or insanity.

That is undoubtedly true where, as under the old system, but one plea was required; but it does not follow that there is any legal objection to the procedure now prescribed. The plea of insanity is, and of necessity must be, a plea of confession and avoidance. (State v. Lawrence, 57 Me. 574, 583; People v. Leong Fook (Crim. 3143), post, p. 64 [273 Pac. 779], this day decided.) The requirement under the present system, that the two issues be separately tried, while a departure from the old method of procedure, is but a departure in procedure.

Each issue must still be tried by a jury of twelve impartial persons, and the verdict must be unanimous. In substance, the old and the new systems are alike. The guaranteed right of a trial by jury is as inviolate and just as much secured to all under the •new system as it was under the old. The interposition of special pleas by way of abatement, or for the purpose of avoiding punishment for offenses committed, has long been permitted in this state and in other jurisdictions.

Special pleas of a former judgment of conviction or acquittal of the offense charged, and of once in jeopardy, have long been recognized. (Pen. Code, sec. 1016.) In other jurisdictions defendants are required to interpose the special plea of not guilty by reason of insanity where insanity is relied upon for the purpose of escaping punishment, the finding of the jury on that fact to be conclusive during the subsequent proceedings in the cause. Courts in those states have uniformly held that such procedure does not amount to a violation of constitutional provisions, relating to jury trials, similar to our own.

In Bennett v. State, 57 Wis. 69 [46 Am. Rep. 26, 14 N. W. 912], the court upheld the validity of a statute requiring that a defendant specially plead insanity, when relied on as a defense, the issue on the special plea to be first tried; if the verdict of the jury be that the defendant was sane at the time of the commission of the offense, his trial upon the plea of not guilty to at once proceed before the same jury, and the finding of the jury on the special plea to be final and conclusive for the purpose of the further trial.

Under provisions of a constitution similar to our own, the supreme court of Wisconsin held that there was no constitutional objection to the statute, and that the other objection, that it required the jury to dispose of the special plea by a verdict thereon before the trial proceeded upon the plea of not guilty, was one relating to the form of jury trial, and not to substance. The court said: “All the issues would still be tried by a jury in the same way they are now tried. ...

It is clear, if the legislature have the power to compel the defendant to plead insanity as a defense, or waive it, then it has power to prescribe the manner of disposing of that issue on the trial so long as it leaves the accused a trial by jury upon such issue.” (See, also, Hempton v. State, 111 Wis. 127 [86 N. W. 596]; Oborn v. State, 143 Wis. 249 [31 L. R. A. (N. S.) 966, 126 N.

W. 737].) A statute of Alabama providing that where the defense of insanity is relied upon it must be set up by a special plea, and cannot be put in issue under a general plea of not guilty, was held not to contravene any constitutional guarantee. (Walker v. State, 91 Ala. 76 [9 South. 87]; Baker v. State, 209 Ala. 142 [95 South. 467].) In People v. Hickman, supra, this court upheld the constitutionality of

section 1016 of the Penal Code, which has the same effect as the Alabama statute. (See, also, Ex parte Brown, 39 Wash. 160 [109 Am. St. Rep. 868, 4 Ann. Cas. 488, 1 L. R. A. (N. S.) 540, 81 Pac. 552, 553], and State v. Saffron, 146 Wash. 202 [262 Pac. 970].) The trial court committed no error in strictly following the letter of the statute (Pen. Code, secs. 1020 and 1026) and excluding, on the trial of the general issue of not guilty, all evidence tending to show the mental condition of the defendant at the time of the commission of the offense.

The doctrine of “partial insanity,” announced by some authorities, particularly Wharton in his work on Criminal Law, has never been recognized as the law in this jurisdiction. In this state, in order that “insanity may be available as a defense to a crime charged, it must appear that the defendant, when the act was committed, was so deranged and diseased mentally that he was not conscious of the wrongful nature of the act committed.

If he has reasoning capacity sufficient to distinguish between right and wrong, as to the particular act he is doing, knowledge and consciousness that what he is doing is wrong and criminal and will subject him to punishment, he must be held responsible for his conduct.

Although he may be laboring under partial insanity, as, for instance, suffering from some insane delusion or hallucination-—still, if he understands the nature and character of his action and the consequences—if he has knowledge that it is wrong and criminal, and that if he does the act he will do wrong, such partial insanity or the existence of such delusion or hallucination is not sufficient to relieve him from responsibility for his criminal acts.” (People v. Willard, 150 Cal. 543, 554 [89 Pac. 124, 129]; People v. Kerrigan, 73 Cal. 222, 225 [14 Pac. 849], See, also, People v.

Hurtado, 63 Cal. 288.) In this state “so far as accountability to the law is concerned, there is no middle ground.” (People v. Perry, 195 Cal. 623, 639 [234 Pac. 890, 896].) Such is the law in many jurisdictions. (Warner v. State, 114 Ind. 137 [16 N. E. 189]; United States v. Lee, 4 Mackey (D. C.), 489 [54 Am. Rep. 293]; Commonwealth v. Wireback, 190 Pa. St. 138 [70 Am. St. Rep. 625, 42 Atl. 542]; Dean v. State, 105 Ala. 21 [17 South. 28]; Wartena v. State, 105 Ind. 445 [5 N. E. 20]; Kirby v. State. 68 Tex. Cr. Rep. 63 [150 S. W. 455].) “Protection is always afforded in courts of law to persons of unsound mind.

Distinction is made between sanity and insanity in people, but not as respects their grade of intelligence. The law does not attempt to measure degrees of intellect, nor to make distinction with respect thereto, where the power of thought and reason exists. ’ ’ (State v. Schlaps, 78 Mont. 560, 578 [254 Pac. 858, 863].) In 14 R C. L., page 599,

section 54, it is said: “It is the general rule that insanity, when interposed as a defense in a criminal prosecution, is either a complete defense or none at all, and it has been held that there is no degree of insanity sufficient to acquit of murder but not of manslaughter.” A valuable note on this subject is found in the case of Knights v. State, 76 Am. St. Rep. 83 (58 Neb. 225 [78 N. W. 508]).

It follows, therefore, that any evidence tending to establish the insanity of the defendant under his plea of not guilty by reason of insanity at the time of the commission of the homicide, other than evidence of the immediate circumstances of the offense, would have been irrelevant and immaterial on the trial of the general issue as to the guilt or innocence of the defendant raised by the general plea of not guilty.

As the statute accorded the defendant his full right, and ample opportunity to submit to a jury his plea of insanity at the time of the commission of the offense, in excuse of his act and as a reason why no penalty of the law should be visited upon him, it follows that the trial coúrt correctly excluded the evidence on the trial of the general issue.

Furthermore, the only evidence admissible for the purpose of enabling the jury to determine whether the death penalty or life imprisonment should be imposed in the event the defendant should be found guilty of murder in the first degree was the evidence which the court did admit, and which concerned “the circumstances connected with the offense.” (People v. Golsh, 63 Cal. App. 609, 613 et seq. [219 Pac. 456] ; see, also, People v. Witt, 170 Cal. 104, 110 [148 Pac. 928].) The insanity of a defendant cannot be used for the purpose of reducing his crime from murder in the first degree to murder in the second degree.

If responsible at all in this respect, he is responsible in the same degree as a sane man, and if he is not responsible at all he is entitled to an acquittal in both degrees. (State v. Maioni, 78 N. J. L. 339 [20 Ann. Cas. 204, 74 Atl. 526, 528].) From these general deductions, applicable to all the cases now in this court in which the new law relating to the plea of insanity in criminal cases is under attack, we pass to a consideration of the special matters raised by the appellant Troche in his appeal.

Counsel for appellant argues that the provision of the state constitution guaranteeing a public and a speedy trial to one accused of a crime “means one speedy and public trial, and no more.” The trial had by the defendant, under the present law, amounted to one trial, and no more. The defendant was charged with the commission of but one crime, and his pleas to the one accusation, constituting his answer and defense, tendered the issues for investigation by the court and the jury selected to try the case.

Whether the issue of the guilt or innocence of the accused should be tried before or after the trial of the issue of his sanity or insanity, was a question to be determined by the legislature. The order in which the inquiry upon the issues is to be conducted in such a case is a matter which may be regulated by statute, and, if the course prescribed gives the accused the right to present his defense fully upon the trial of the case, he is not deprived of any right or privilege incident to the common-law jury trial. (Schissler v. State, 122 Wis. 365, 379 [99 N.

W. 593].) Appellant further contends that, as the Criminal Practice Act of 1851 (Stats. 1851, p. 212), and sections 1019 and 1020 of the Penal Code, enacted in 1872, provide that the plea of not guilty puts in issue every material allegation of the indictment or information, and that all matters of fact tending to establish a defense, other than a former judgment of conviction, and once in jeopardy, may be given in evidence under such plea, the action of the trial court in this case was error.

An answer to the contention is that the whole matter of trial is one of procedure, which is subject to the control of the legislature, within the limitations we have already discussed, none of which were transcended in the enactment of the new law. A more complete answer to this contention will be found in the decision of this court in People v. Leong Fook (Crim. 3143), post, p. 64 [273 Pac. 779].

Another contention of the appellant is that the legislature has no right or power to enact a law declaring that, at the time of the commission of an offense, an accused shall be conclusively presumed to have been sane, or that, at any given time, a person is conclusively presumed to be sane, or insane, and that when the legislature does so it is invading the province of the judicial branch of the government. If the legislature had gone so far as the appellant would lead us to believe, his contention would arouse considerable interest; but it has not.

The presumption established is one merely for the purpose of a trial, and is not one of guilt, but only a presumption of sanity. The whole law relating to crimes rests upon the presumption of sanity, and, if it does not exist in any particular case, such case is an exception, and the absence of sanity must be proved by the person asserting it. In conformity with that principle, one who tenders the issue of insanity, as a bar to punishment for an offense committed, must satisfactorily establish such insanity by a preponderance of the evidence.

In other matters the accused has only the burden of raising a reasonable doubt in the minds of the jurors. It has long been the law of this state that, “Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse "it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.” (Pen.

Code, sec. 1105.) In view of the general presumption of sanity, which abides until overthrown by the accused by a preponderance of evidence, the legislature has deemed it wise to provide that the plea of insanity at the time of the commission of the offense must be made in a special manner, and that, unless the issue is raised in that way, it will be held to be waived for the purpose of the trial. It goes no further. If the plea may be waived, it would seem to logically follow that, for the purpose of the trial, the accused may be conclusively presumed to have been sane when he committed the act.

The appellant complains that upon the voir dire “not one question was asked by the court of any talesmen as to their views as to the defense of insanity.” Aside from the fact that appellant’s counsel might have examined the jurors on that subject, it seems that he is mistaken in making this assertion.

The reporter’s transcript shows that the court, on the voir dire, fully instructed the jurors as to the nature of the charge and the defenses the defendant was entitled to make, including the defense of insanity, and asked the jurors if, in view of a trial of the second issue— that of the insanity of the defendant—any of them had any objection to that defense, and if any of them “knew of any reason of any kind whatever why [they] could not act fairly and impartially.” Subsequently, when the clerk of the court read the information and stated the plea of the defendant, the court very fully defined the issues to the jury, in the light of the two pleas.

The court appears to have made it very clear at that time that, if the jury returned a verdict of guilty on the first issue, it would at once submit the issue of insanity to it. It is contended that the court and the district attorney were guilty of misconduct, the former in permitting, and the latter in demonstrating before the jury, after the evidence was closed, how many shells the pistol of the defendant would hold. As the pistol was already in evidence, it does not appear that any error resulted from the action complained of.

In support of his plea that he was insane at the time of the homicide, and that the direct cause of the act was an attack of insanity suffered by him after his fiancee and he left San Francisco, appellant offered evidence showing that he had received a severe fracture of the skull by a fall from a tree, when he was ten years old, and that he had suffered from temporary insanity on many occasions.

There is no question but that all those facts were established; but, a doctor who had the defendant under observation from the time of the homicide until the trial, during which period the defendant talked freely of his crime, testified that, during the greater part of that period the defendant was rational. The superintendent of one of the state hospitals for the insane, testifying as an expert, declared the defendant was sane when he committed the homicide.

Under full and accurate instructions on the subject of insanity, as viewed in this state, when interposed by one seeking immunity from punishment for a crime committed, the jury found that the defendant was sane at the time he killed his sweetheart. The finding of the jury concludes the question. The judgment is affirmed. Shenk, J., Curtis, J., Richards, J., Langdon, J., and Sea-well, J., concurred.