People v. Messerly

GRIFFIN, J.

Appellant was accused by information of the crime of assault with a deadly weapon. He pleaded not guilty and not guilty by reason of insanity, and expressly waived the appointment of an alienist from the state hospital. Two other alienists were appointed by the court. The jury found appellant guilty of assault with a deadly weapon as charged. Thereafter the trial court ordered the trial to proceed before the same jury on the plea of not guilty by reason of insanity. After deliberating for more than a day the jury declared it was unable to agree upon a verdict. It was thereupon ordered discharged. Appellant moved to set aside the verdict of guilty of assault with a deadly weapon, which motion was by the court denied. The ease was thereafter reset for trial on the second plea for February 3, 1941. Appellant waived the statutory time for trial and moved for continuances which were granted. On March 3, 1941, a new jury was sworn to try the issue of not guilty by reason of insanity. That jury returned its verdict finding appellant sane at the time of the commission of the offense as charged in the information. This appeal is from the judgment of conviction.

A brief

resume

of the facts may be thus stated: On the night of October 22, 1940, appellant went to the home of his estranged wife. He had been separated from her for several months and had been negotiating for a reconciliation. He had been drinking for some time prior to his call at his wife’s residence on the night in question. A married couple were visiting at her home on that night. Appellant appeared at the rear door of the home. Later appellant and appellant’s wife were seen in the kitchen. Appellant was striking his wife up and down the back and over the shoulders with what afterwards proved to be an ice pick. Several of the stab wounds pierced her lungs, causing severe hemorrhages.

[720]

The ice pick was still in the appellant’s hand at the time of the arrival of the investigating officers.

Appellant argues: (1) That it was error to try the insanity plea alone before a new jury, after the first jury had disagreed on this issue, and contends that he was also entitled to a retrial by the new jury of the question of his guilt or innocence of the offense charged. (2) That he did not have the benefit of two alienists as contemplated by section 1027 of the Penal Code. (3) The sufficiency of the evidence of appellant’s sanity is also questioned.