In their petition, counsel for the people say: "On the outset of this matter we admit that the decision heretofore rendered in this case is correct in principle, but *Page 437 we claim that the people tried one case and the court decided another."
The point is that the defendant, at the trial, tried his case solely upon the theory of temporary insanity brought on by "recent indulgence in alcoholism"; that such was the theory upon which the learned trial court instructed the jury, and that this court decided the case upon the erroneous supposition that the defense interposed by the defendant was that he was wholly irresponsible and not accountable in law for his act because of settled insanity superinduced by the excessive use of intoxicating liquors.
In proof of their position, counsel for the people call attention to certain language of the attorney for the defendant in his opening statement to the jury, in which he declared: "In other words, I think, gentlemen, we will show you beyond question in this case that Frank Goodrum, at the time this assault was made, knew nothing about it; that he was simply laboring under a case of delirium tremens — simply insane from the effect of alcohol that he had consumed in the week or two before that, and that he was in a state of mind not to be accountable for what he did. We will show you that the acts that he did in the manner in which this offense has been portrayed here were not natural, but unusual — an improbable way of doing that kind of thing; that he had nothing against his wife at any time. Now, I say if we show you that, then that is a defense to this action." Again, in his opening address, the attorney said: "We will show you that he was nervous; that he had all the indications, gentlemen, that make up a case of alcoholic insanity — not drunkenness, gentlemen, but the effects of alcohol after the stimulant has died out — the effect on the nerves. . . . I think I will show you what I have said, and even more on that line."
Thus, it is contended, the counsel for the defendant expressly limited the purpose of proof upon the question of the mental condition of the accused at the time of the commission of the alleged assault to the establishment of the fact that he was suffering only from temporary mental derangement as the result of the use of intoxicating liquors, and this proposition is, it is asserted, emphasized and clearly sustained by the statement of counsel that he would show that the defendant, on the occasion of the assault, was suffering from an *Page 438 attack of delirium tremens, a condition which is a mere temporary effect of alcoholism and not a characteristic of settled insanity caused by alcoholism.
It is to be conceded that the attorney for the accused, in his opening statement to the jury, was not altogether happy in his expressions or the presentation of his case as he proposed to make it. Obviously, mere temporary mental derangement resulting from the use of intoxicants, whether it manifests itself in the form of delirium tremens or in some milder form, cannot operate to absolve a person from liability for a criminal act, and testimony disclosing that precise mental state at the time the criminal act was committed is admissible only where the existence of a particular purpose, motive, or intent is a necessary element of the crime charged, and then it may be considered by the jury, not as the predicate for the full exoneration of the accused, but solely to enable or assist them in determining the purpose, motive, or intent with which he committed the act. (Pen. Code, sec. 22.)
But we think that the opening statement of counsel is broader in its scope than the people ascribe to it. Whether the attorney for the defendant, in his opening statement, did or did not state to the jury in apt technical language that he proposed to rely upon the defense of insanity for the complete exoneration of the accused, it is clear to our minds that said statement clearly enough and so sufficiently shows that that was what he intended and endeavored therein to say. On numerous occasions, in the course of his statement, he declared that he would show, or attempt to show, that the defendant, when the assault was made, was insane; that he was suffering from "alcoholic insanity," adding, in one instance, when using the latter language, the statement, "not drunkenness," thus attempting to emphasize the proposition that he did not refer to mere temporary mental aberration or derangement, but to settled insanity; that the accused was "in a state of mind not to be accountable for what he did," and many other like expressions, all indicating with sufficient clearness that what he intended to say to the jury was that he proposed to prove that the defendant, by the excessive use of intoxicating liquors for a time prior to the assault, had become afflicted with insanity to a degree that, in a legal *Page 439 view, he was, at the time of the assault, wholly irresponsible and not accountable for his act.
But a defendant, in a criminal case, in making a defense and proving his case, is not necessarily required to remain strictly within the literal scope of the defense outlined by his counsel in his opening address to the jury. It may happen, as doubtless it has happened, that a lawyer may not succeed in stating his case to the jury in a strictly proper manner or in correct technical nomenclature. This may naturally occur in a criminal case where the attorney for the defendant, generally well learned in the law, has had no experience in the practice of the criminal law, and whose practical familiarity with the rules and doctrines of that branch of jurisprudence is decidedly limited. Hence, that would be a strange, and, indeed, a manifestly unjust rule which would, in a case where his defense had not been properly explained in the opening statement, preclude the defendant from making his case as he intended to prove it, and as he had reason to believe he could only prove it as in complete answer to the charge against him. But, even assuming that the opening statement of counsel for the accused in this case is amenable to the interpretation to which it is subjected by the people, the trial court in this case, so far as the proof was concerned, accorded to the defendant the right to traverse a broader field than the said opening statement, as so interpreted, warranted; for it allowed opinion testimony of intimate acquaintances of the defendant that he was insane at the time, or in near proximity to the time, at which the assault occurred. This testimony, even if it may truly be said that the opening statement did not, squarely and broadly brought into the case as a vitally important issue therein the question whether the defendant was insane to the extent that he was so bereft of reason and the power of volition as to have rendered him wholly irresponsible for his act. And the fact that the testimony offered in support of that issue might have been insufficient in probative force to prove it by the requisite degree of proof, or the fact that other witnesses might have given testimony tending to show or even satisfactorily showing that the mental condition of the accused was only temporary and the result of mere drunkenness, could not have the effect of taking insanity from the case as one of the vital issues. The issue was there and some testimony *Page 440 received in its support, and, as declared in our former opinion and as is obviously true, it was wholly for the jury to say whether it was proved to a sufficient degree to entitle the defendant to an acquittal on the ground that thus he was not in a mental condition to be responsible, legally, for the assault. Hence it was, as we have held, error, prejudicial to the accused, for the court to have practically taken that question from the jury, and, moreover, under our view of the record as above pointed out, we may add to what we said in our former opinion that the court further erred to the serious detriment of the defendant by confining the jury to the consideration of the evidence upon the defendant's intoxication to the mere determination by them of the particular "purpose, motive, or intent" with which the accused committed the act. In other words, we think that an instruction on insanity brought on by the use of intoxicating liquors that will, in law, excuse a criminal act, should have been given, and that, such an instruction having been proposed by the defendant and disallowed, the action of the court in that respect constituted prejudicial error.
There can be no possible doubt that the trial court intended to and did, under its conception of the case, give the defendant a fair trial; but we think the scope of the defendant's position in the case was misapprehended by the prosecuting attorney and that the court, erroneously adopting the misconceived theory of the people, made the errors above referred to, and which we think undoubtedly demanded the reversal heretofore ordered.
Rehearing denied.
Chipman, P. J., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 9, 1916. *Page 441