People v. West

[370]

THE COURT.

A rehearing in these cases was granted by this court and, upon further consideration, we have concluded that the judgment should be reversed and a new trial granted.

The defendants were convicted in the superior court of the crime of murder in the second degree and sentenced to the penitentiary for life. At the time of the homicide, November 28, 1913, they were inmates and patients at the Mendocino state hospital for the insane and deceased, at the time of his death, was also an inmate and. patient of said institution. Before the trial the defendants regularly moved the court that the question of their present sanity be submitted to a jury as provided by section 1368 of the Penal Code. The court denied the motion and in this we think prejudicial error was committed.

In support of said motion the defendants introduced and read the affidavit of one of their counsel, Mr. Hale McCowen, Jr. From this affidavit it appeared that, at the time of the homicide, the defendants were confined in the hospital as insane persons and were being treated as such and that neither had been discharged as cured or at all; that the defendant Peoples had been sent to the hospital upon the certificates of two surgeons of the United States navy at Puget Sound, Washington, dated October 24, 1913. West was committed from the penitentiary at San Quentin upon the certification of the warden, the resident physician and surgeon, and the captain of the yard, that West was insane. The commit- ' ment was dated November 10, 1913. It is thus to be noticed how closely their commitment was followed by the homicide, and, it may be stated, the trial occurred soon thereafter.

Mr. McCowen further set out in his affidavit that both he and his associate “have each made efforts to secure from the said defendants some statement concerning the crime charged in the information; that said defendants refuse to say anything about the facts or circumstances of the offense and act as though suffering from delusions of some character. That affiant therefore alleges that it is his opinion that both of these defendants are mentally insane; and that neither of them is mentally competent to make a just and rational defense to the charge made against them.”

It must be admitted that there was thus presented a very strong showing of present insanity. It is asserted by appellants’ counsel that the facts “constitute the strongest showing