PRESTON, J., Dissenting.
I dissent. I cannot reach the conviction that the majority opinion is sound. No authority is cited that supports it. In fact, I do not believe it covers accurately the points of attack upon the validity of the statutes. The first statute involved may be set out again as follows:
Section 1026 of the Penal Code, enacted in 1927, reads in part: “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, or if the defendant pleads only not guilty by reason of insanity, then 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. ...”
With this provision must stand or fall the amendment passed at the same time to section 1020 of the Penal Code, which amendment omits the word “and” formerly found between the words “third” and “fourth,” in line two, and adds after the said word “fourth” the words “and fifth,” making the section as amended read as follows: “All matters of fact tending to establish a defense other than one specified in the third, fourth and fifth subdivisions of section 1016 may be given in evidence under the plea of not guilty.” The effect of said amendment is to provide that evidence of insanity at the time of commission of the act may not be given upon the trial under the plea of “not guilty.” It should also be first noted that likewise, in 1927, section 1016 of the Penal Code was amended to provide for
[52]
the interposition of this fifth plea, to wit: a special plea of “not guilty by reason of insanity.”
As I understand the main opinion it concludes that the steps inserted in the statutes by the amendments of 1927 were merely procedural, involving no invasion of the substantial rights of a defendant. It is my view that no legal basis can be found upon which to rest these provisions, and, moreover, that no beneficial results can flow from their practical operation. The conscience immediately rebels when the effect of these provisions is contemplated. They are no more nor less than provisions intended to hamper the free, full and fair consideration of the cause by the jury, a cause, too, which involves the life or liberty of the citizen. The state, representing the whole people, can least afford to «be cruel or unjust. These provisions savor of oppression. The rights of the state and the accused are not equal upon entering the temple of justice. The scales of justice are out of balance. A man may not be both guilty and innocent at the same time of a single charge. If the defendant, though insane or an idiot, must first be convicted, and then inquiry by the same jury is made as to his innocence, something is radically wrong. Such a law seems on its face clearly to be a step toward a return to the dark ages.
It will be noted- that on the first half of this bifurcated trial or hearing under this procedure the jury may not stop by merely finding that the defendant physically did or did not do the prohibited act. The jury must go further and find the existence or absence of all the elements of the crime charged. The jury must convict the defendant before any verdict adjudicating sanity may be announced. Even though the jury believe the defendant to have been insane, and, for that matter, to be still insane, yet under its oath it must, in violation thereof, attribute sanity to him, convict him of the crime, report the finding to the court, and assent in open court to the result. Indeed, in a ease of first degree murder the jury must also fix the punishment at life or death. The defendant, in other words, with condemnation resting upon his head and in some instances with execution facing him, must submit the issue of his sanity to the judgment of his condemnors, condemnors who have already adjudged him sane upon a modicum only of the available evidence that should have been considered by them:.
[53]
I repeat that a sovereign must indeed be unjust who exacts a verdict of guilty by such a method. Surely this court has the .power and is charged absolutely with the duty of preventing such a misuse of the machinery of justice.
But the legal infirmities of these provisions are easily discerned. They undertake to subdivide an indivisible integer, and therein lies their chief infirmity. In other words, the plea of not guilty necessarily includes within it the element of insanity. This is true not because of any legislative fiat, but because sanity is a fundamental element of all amenableness to punishment and is the prime ingredient of the criminal legislation of all civilized countries. (See Pen. Code, secs. 20, 21, 26.) There can be no malice, deliberation or premeditation without sanity. There can be no criminal intent—indeed, no criminal act—where there is no sanity. If the jury, in ascertaining the intent of the defendant, may not consider the evidence of his insanity, it must follow that the legislature has the power to dispense entirely with the element of intent. Tes, more is true: If the jury may not, before assessing guilt to the defendant, consider the fact that he is insane, not only may criminal intent be dispensed with, but - the time-honored and almost sacred presumption of innocence may be set at naught by the law-making power. (See
State
v.
Strassburg,
60 Wash. 106 [Ann. Cas. 1912B, 917, 32 L. R. A. (N. S.) 1216, 110 Pac. 1020].)
What think ye of a statute providing that if A commits the physical act of killing B, he shall be declared by law guilty of murder in the first degree, and upon arrest of the person thought to be the criminal he shall be conclusively presumed to be the party wanted, but, after his conviction, he may for the first time have a hearing before the same jury as to whether or not he is the man who really committed the act? If the provisions under review are procedural only, so must it be in the situation I have supposed.
What a storm of protest would arise if the legislature had provided that on the first trial under this procedure a defendant is conclusively presumed to have been insane. Would the prosecution have admitted then that this change was only procedural? Or suppose that the legislature had provided that on the first trial sanity should be conclusively presumed, but on the second trial insanity should be con
[54]
clusively presumed. This mere act of reforming procedure would in that case be an entire nullification of the whole criminal law. Would such a strangulation of justice be held procedural only? So a mere contemplation of the effect of these provisions proves more clearly than words could express that the procedure outlined by the statutes is a procedure which destroys for all practical purposes the defense of insanity and thereby destroys one of the principal rights of a person charged with the crime.
It has been said, however, that these changes are procedural because the verdict on the first trial is but a conditional verdict. Is it possible that motive or criminal intent exists or can exist conditionally or hypothetically? They are either present or absent. The admixture making up the compound of criminal intent is not capable of a hypothetical or conditional or presumed existence. It may not be presumed to exist, then reach a conclusion of guilty based on such presumption, and, while still holding to this conclusion, undertake to determine the existence of intent. This is “boot-strap” lifting,
petitio principii.
Would anyone defend a statute which provided that a defendant must first be found guilty and then the same jury be required to retire and consider whether or not the defendant committed the act or was in fact the party wanted for the crime? This contention that the verdict is only conditional illuminates the positive conclusion that the statute is mischievous, unfair and unjust, and contrary to the basic principles underlying our criminal law. Again it is said that it is procedural because on the second trial the jury may pass upon the question of the defendant’s sanity. We have already observed that there could be no criminal intent, malice, premeditation or deliberation without the functioning of a sound but vicious mind. We have already observed that sanity is a necessary element of all crime. A defendant who is convicted has been thereby not only found guilty but also found to be sane. This conclusion is inescapable and undeniable. The jury on the first hearing has therefore passed upon the defendant’s sanity, determined the issue against him, and done so on a consideration of a portion only of the evidence that must be again passed upon at the second or final hearing.
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Is a juror who, after having heard the circumstances of the offense, and after having seen the defendant, and after having heard his testimony and decided that he is sane, in any condition of mind to be impartial when sitting in review upon his own act solemnly performed under oath and reported to the court? I submit that no juror, whatever his degree of mentality or whatever his degree of theoretical fairness, could impartially rejudge the second issue. No human mind, with the elements we know to exist in it, could do so. That is why our statute (see. 1073, subd. 2, Pen. Code) provides that a juror may be challenged “for the existence of a state of mind” in reference to the case, “which will prevent him from acting with entire impartiality and without prejudice to the substantial rights of either party.” That is also the reason underlying section 1074 of the Penal Code (subd. 4), which provides that a citizen may not sit as a juror if he has served on the grand jury which found the indictment, or on a coroner’s jury which inquired into the death of a person whose death is the subject of the indictment or information; and subdivision 6 of the same section, which forbids a citizen to sit as a juror if he has been “one of a jury formerly sworn to try the same charge, and whose verdict was set aside, or which was .discharged without a verdict, after the case was submitted to it.” Yet under the statutes under review it is permissible for the jury which has actually convicted the defendant, and in this case sentenced him to death, to sit again upon the issue of sanity.
The contention is made that there is but one trial. If this is true, then why not dispose of both pleas at one hearing? Why seek to prejudice, shackle and intimidate the jury by calling them into court in the midst of their deliberations and have them deliver a verdict which prejudges the undetermined issue involved? It is no parallel to this situation to say that the pleas of former acquittal, former conviction or other special pleas may be heard separately and, therefore, the plea of insanity may also be heard in like manner. This is untenable for the reason pointed out above, that insanity is a necessary ingredient of the plea of not guilty, whereas these special pleas rest upon their own separate foundations, and do not depend in any respect upon the plea of not guilty.
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Reference is made to the case of
Bennett
v.
State,
57 Wis. 69 [46 Am. Rep. 26, 14 N. W. 912], wherein 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. That procedure is not constitutionally objectionable, and the reason is, that on that issue every item of evidence admissible under the plea of not guilty may be heard and should be heard on the plea of insanity, and the result is that such a practice involves two separate, distinct but full and complete trials of the case. No defendant can constitutionally object to such procedure, nor could he object to a procedure which authorized a new jury for the issue of insanity if the whole field of guilt or innocence could again be traversed. That this duplicate procedure was found impracticable is evidenced by the fact that in 1911 the' state of Wisconsin abandoned it by repeal of the statute.
However, in the case of
French
v.
State,
85 Wis. 400 [39 Am. St. Rep. 855, 21 L. R. A. 402, 55 N. W. 566], where the jury which sat on the insanity hearing was unable to agree and was required to sit upon the plea of not guilty over the objections o£ defendant, the court of that same state had this to say: “The case stood precisely as it would if these statutes in relation to a special issue of insanity had not been enacted. The accused is placed on trial for the crime. His insanity is a question material to the case. A jury is forced upon him to try his case, all of whom had formed and expressed an opinion on the question whether he was or was not insane when he killed the deceased. Does the law suffer or sanction such a biased, partial and prejudiced jury for the trial of one charged with the crime of murder? Anyone would say that this would be a judicial outrage upon the legal and constitutional rights of the accused. And yet this is just such a case. The accused has the right to demand that he be tried before a fair and impartial jury. Constitution, article I, section 7, provides that the accused shall have ‘a speedy public trial before an impartial jury.’ Besides this, the right of the accused to have a jury specially selected and impaneled to try him for the crime charged, and his right of challenge, were cut off and denied. It is obvious and self-evident that this jury was an unlawful one, and that the accused was deprived of his
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constitutional right of trial hy jury. It has been uniformly held, and from early times in the history of jury trials for crime, that the grand jury that found the indictment, and each one of them, is disqualified from sitting on the petit jury to try the accused.”
This language is clearly applicable to a jury which the law requires to report their adverse conclusion before they finish their deliberations on the same issue. Due process of law is defined as follows: “By the law of the land is most clearly intended the general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land.”
(Dartmouth College
v.
Woodward,
4 Wheat. (17 U. S.) 517, 581 [4 L. Ed. 629, see, also, Rose’s U. S. Notes].) Volumes might be quoted on this subject, but no clearer statement can be found than the above. Who can state that these provisions meet this test?
In thus making a judicial inquiry as to the existence of a fact, to wit, guilt or innocence, the court and jury are circumscribed by a legislative declaration which forbids the introduction of essential evidence upon that issue by declaring that a necessary element of guilt be conclusively presumed. Is this due process of law? Has the defendant in such case had his full day in court? May the legislature thus commit an incursion into the domain of the courts? The answer universally given is “No.” E’ven in civil eases, unless the legislature is making substantive law and not merely rules of evidence, it may not make one fact conclusive evidence of another.
Says Mr. Wigmore (2 Wigmore on Evidence, 2d ed., p. 1057, sec. 1353): “The judicial function under the Constitution is to apply the law in controverted cases; to apply the law necessarily involves the determination of the facts; to determine the facts necessarily involves the investigation of evidence as a basis for that determination. To forbid investigation is to forbid the exercise of an indestructible judicial function. To make a rule of conclusive evidence,
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compulsory upon the Judiciary, is to attempt an infringement upon their exclusive province.”
Again, Judge Cooley wrote: “But there are fixed hounds to the power of the legislature over this subject which cannot be exceeded. As to what shall be evidence, and which party shall assume the burden of proof in civil cases, its authority is practically unrestricted, so long as its regulations are impartial and uniform; but it has no power -to establish rules which, under pretense of regulating the presentation of evidence, go so far as altogether to preclude a party from exhibiting his rights. Except in those eases which fall within the familiar doctrine of estoppel at the common law, or other cases resting upon the like reasons, it would not, we apprehend, be in the power of the legislature to declare that a particular item of evidence should preclude a party from establishing his rights in opposition to it. In judicial investigations the law of the land requires an opportunity for a trial; and there can be no trial if only one party is suffered to produce his proofs.” (2 Cooley’s Constitutional Limitations, 8th ed., Carrington, pp. 768, 769.)
In
State
v.
Beach,
147 Ind. 74 [36 L. R. A. 179, 46 N. E. 145, 146], the rule, with a superabundance of authority to sustain it, has been stated as follows: “We think it clear that the legislature has the power to prescribe rules of evidence and methods of proof. A law which would, in effect, . exclude the evidence of a party, and thereby deny him the right to be heard, would deprive him of due process of law. A law which provides that certain facts are conclusive proof of guilt would be unconstitutional, as also would one which makes an act
prima facie
evidence of crime which has no relation to a criminal act, and no tendency whatever to establish a criminal act. If, however, the legislature, in prescribing the rules of evidence in any class of cases, leaves a party a fair opportunity to establish his case or defense, and give in evidence to the court or jury all the facts legitimately bearing on the issues in the cause to be considered and weighed by the tribunal trying the same, such acts of the legislature are not unconstitutional.”
In
Vega S. S. Co.
v.
Consolidated Elevator Co.,
75 Minn. 308, 312 [74 Am. St. Rep. 484, 43 L. R. A. 843, 77 N. W. 973, 974], the court, in discussing the legality of a statute that made conclusive the certificate of a state weighmaster,
[59]
said: “But is it competent for the legislature to make the weight thus ascertained absolutely conclusive? We are of the opinion that it is not. The legislature cannot in this manner provide for the arbitrary exercise of power, so as to deprive a person of his day in court to vindicate his rights. And the law which closes his mouth absolutely when he comes into court is the same, in effect, as the law which deprives him of his day in court (citing many cases).”
An early annotator stated the rule as follows: “In criminal prosecutions, we apprehend that under no circumstances can the legislature create a conclusive presumption of guilt, nor deprive the accused of the right to offer proof of his innocence, nor require the jury to disregard such proof, nor to give effect to any presumption of the truth of which they are not satisfied.
Voght
v.
State,
124 Ind. 358 [24 N. E. 680] ;
State
v.
Beswick,
13 R. I. 211 [43 Am. Rep. 26].” (Note,
People
v.
Cannon,
36 Am. St. Rep. 689 (139 N. Y. 32 [34 N. E. 759].)
A case often cited and frequently distinguished, but at no time overthrown, is
Hammond
v.
State,
78 Ohio St. 15 [125 Am. St. Rep. 684, 14 Ann. Cas. 732, 15 L. R. A. (N. S.), 906, 84 N. E. 416], where the court had under consideration a statutory provision as follows: “The character of the trust or combination alleged may be established by proof of its general reputation as such.” The court, in declaring it invalid, said: “It may be conceded that, within proper constitutional limits, the legislature has the general power to prescribe rules of evidence and methods of proof— to determine what may or may not be competent evidence in a particular case—and, with certain qualifications, has, perhaps, the power to enact and prescribe that in criminal prosecutions certain facts, when duly established, shall be held to be presumptive or
prima facie
evidence of guilt. But this power is not without its limitations, one of which is that the legislature may not arbitrarily create a conclusive presumption of guilt against the accused, as to any element of the crime charged, by giving artificial and evidential force and effect to certain facts which otherwise would be wholly irrelevant and inconclusive. . . . Thus, the statute in terms makes proof of the general reputation of the trust or combination, not only competent evidence against the accused, but sufficient and conclusive evidence
[60]
of the unlawful and criminal character of the combination to which he may belong. This, in effect, is to deprive the accused of the protection of the cardinal presumption that every person is to be presumed innocent until he is legally proven guilty—a presumption which attends the accused throughout his trial, and has reference and relation to every fact that must be established in order to prove his guilt beyond a reasonable doubt. If the general assembly, in order to make conviction easier under this act, can rightfully provide that one of the essential and constituent elements of the crime charged, viz., the unlawful character of the trust or combination, may be shown and made certain by proof of common rumor or general reputation, and the guilt of the accused be thus established, it is difficult to see why it may not, with equal right, provide that murder, arson, or any other crime may be thus established by proof that the person accused thereof is generally reputed to be the person who committed the same—a proposition at once so obnoxious and repugnant to the plainest principles of reason and justice that none would yield assent to it. . . . To concede to the legislature the power to provide, in prosecutions under the act here in question, that the unlawful character of the combination to which the defendant belongs may be established—that is, made certain—by proof of its general reputation as such, is to grant that the legislature has power to, and may, in a criminal case, prescribe a rule of conclusive evidence as to a vital and controlling fact that shall be binding alike upon court and jury. This the general assembly may not do.”
Mr. Justice Lurton, in the case of
Mobile etc. R. R.
v.
Turnipseed,
219 U. S. 35, 42, 43 [Ann. Cas. 1912A, 463, 32 L. R. A. (N. S.) 226, 55 L. Ed. 78, 31 Sup. Ct. Rep. 136, 137, see, also, Rose’s U. S. Notes], summed the whole situation up in a single paragraph: ‘‘The law of evidence is full of presumptions, either of fact or law. The former are, of course, disputable, and the strength of any inference of one fact from proof of another depends upon the generality of the experience upon which it is founded. . . . Legislation providing that proof of one fact shall constitute
prima facie
evidence of the main fact in issue is but to enact a rule of evidence, and quite within the general power of government. • Statutes, national and state, dealing with such meth
[61]
ods of proof in both civil and criminal cases abound, and the decisions upholding them are numerous. . . . That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law it is only essential that there shall be some rational connection between, the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate, So, also, it must not, under guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed.”
A recent annotator put the question in this form: “The general proposition is supported by many cases that a legislature cannot constitutionally make one fact conclusive evidence of another material fact in controversy, if the former is not, in and of itself, by virtue of its own force, conclusive.” (51 A. L. R, p. 1149. See
Griffin
v.
State,
142 Ga. 636 [Ann. Cas. 19160, 80, L. R. A. 1915C, 716, 83 S. E. 540].)
It will be noted that the above quotations from the opinion in the ease of
Hammond
v.
State, supra,
bring vividly into play the further evident proposition, that to conclusively presume any ingredient of crime is to clash squarely with the presumption of innocence. The defendant in such case enters upon his trial not surrounded by this ancient and wise safeguard but must yield that advantage in part at least to a presumption of an element of guilt which, though he may be able to do so, the strong arm of the law forbids him an opportunity to combat.
This is no time or place for a lengthy dissertation upon this presumption, but it may be well remembered that its object is to protect the innocent and not to shield the guilty. It is a presumption of both law and fact. It was present in the Roman law and some authorities state that it marks back through Sparta and Athens to the Book of Deuteronomy. It was known to be a part of the common law as early as 1802. In 1817 Lord Gillies, in
McKinley’s Case
(33 St. Tr. 275, 506), in speaking of this presumption said, among other things: “It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman; and I was happy to hear from Lord Hermand
[62]
he is inclined to give full effect to it. To overturn this, there must be legal evidence of guilt, carrying home a degree of conviction short only of absolute certainty.”
Blackstone maintained (1753-1765) that: “the law holds that it is better that ten guilty persons escape than that one innocent suffer.” (4 Bl. Com., chap. 27, margin page 358,
ad finem.)
It is the strongest presumption known to the law. It is as much a part of our constitution, both state and national, as if it were written therein in letters of burnished gold. This fact has been assumed many times in this state and in one ease at least expressly stated
(In re Wong Hane,
108 Cal. 680 [49 Am. St. Rep. 138, 41 Pac. 693]). We presume that no one would contend that this presumption could be overthrown by any statutory enactment.
Prima facie
evidence or presumptions may be declared to exist where they flow logically from certain facts, but the presumption of innocence is ever present even in the deliberations of the jury and may alone and of itself sometimes avail to acquit the defendant.
This court should be quick and decisive in its action to declare anew our bill of rights and to preserve the essential attributes of a jury trial as known to the common law and as preserved by our constitution (art. I, secs. 7 and 13, Const.). These provisions are so obnoxious to the spirit of our institutions that the blood of Abel “crieth from the ground” for vindication.
The question of the degree of insanity that shall constitute a defense of crime is not here involved and no reason exists to question the established rule on this subject
(People
v.
Willard,
150 Cal. 543 [89 Pac. 124];
People
v.
Gilberg,
197 Cal. 306, 314 [240 Pac. 1000] ;
People
v.
Sloper,
198 Cal. 238, 245 [244 Pac. 362]).
It should here be noted that the striking down of these provisions will in nowise hamper but on the contrary will greatly aid the administration of the criminal law. The pleas, and the effect thereof, provided for in section 1016 of the Penal Code, will remain intact and fully effective
(People
v.
Hickman,
204 Cal. 470 [268 Pac. 909]). Hereafter a plea of not guilty and the special plea of not guilty by reason of insanity will be' tried at the same time before a single jury as in the states of Wisconsin and Washington,
[63]
and perhaps other states, and the jury may be, and doubtless will, under all proper circumstances, be required to find on the special plea. Defendant will, in case of a verdict that he was insane at the time of the commission of the offense, be dealt with as provided in the remaining portion of said section 1026 of the Penal Code.
It may also be said that it is not every double trial that would entitle a defendant to reversal of the judgment of conviction—only those cases where it can be seen that prejudice has been suffered by him. If there be no evidence produced upon the second hearing that would warrant or justify a finding that the defendant was insane, then, of course, no error would appear, but in the case before us there was substantial evidence, in addition to the circumstances of the case, which would have supported the verdict that defendant was insane at the time he committed the act; therefore, prejudicial error appeared in the case before us.
It may here also be said that we have not presented this dissent upon the ground that the jury in assessing the punishment of death in this ease should have been allowed to receive all or a portion of the evidence admissible upon the issue of insanity in order that it might determine in a just manner the question of punishment. I prefer to rest my conclusion upon a broader ground and content myself with citing that situation as additional evidence of the inhumanity of the provisions under consideration. The judgment should be reversed.
Hearing in Bank denied.
Preston, J., dissented.