People v. Cornell

RICHARDS, J.

The defendant herein appeals to this court from a judgment imposed upon his conviction of the crime of murder in the first degree by a jury without recommendation, and from an order denying him a new trial. The double murder of which the defendant was thus convicted was committed in the city of Bakersfield on the evening of October 17, 1926, his wife and stepdaughter being the victims of his atrocious and premeditated crime.

[146]

The defendant, who at the same time made an ineffectual attempt to end his own life, was apprehended upon the scene of his crime and has at no time denied his part in the commission of the double homicide except possibly by his plea of not guilty, the only defense, however, offered in his behalf upon the trial being the defense of insanity, the chief points urged upon this appeal having relation to that defense. The first contention which the defendant urges upon this appeal is that the trial court committed prejudicial error in relation to the appointment by it of a certain medical expert upon the issue of the defendant’s alleged insanity which had been raised on the defendant’s behalf during the course of the trial. Such appointment was made under the provisions of section 1871 of the Code of Civil Procedure as amended in 1925 [Stats. 1925, p. 305]. The defendant does. not question the power of the court to make such appointment under the terms of such provisions, but relies upon certain irregularities alleged to have occurred in the course of making the same. At the time of its selection of the medical expert so chosen the trial judge made some comment in the presence of the jury with relation to the experience, ability, and impartiality of said expert and to the fact that he had been theretofore acting as an expert alienist in the superior courts of Los Angeles. The defendant, while objecting through his counsel to the appointment of said expert by the court, placed such objection upon the ground that the defendant had secured the services of his own experts and hence was not in need of said or any appointive alienist, but he neither then nor since offered any objection to the character, qualifications, or impartiality of the chosen expert. It would thus seem that no prejudicial injury was suffered by the defendant either through the making of such appointment by the court or by its remarks touching the qualities of the proposed appointee. The appellant cites no authority and offers no sufficient reason why the action of the court in the matter of the appointment of an official expert under the provisions of the foregoing section of the code should be had without the presence of the jury. Like every other step in the trial of a criminal cause, it is a proceeding which should be held in open court and in the defendant’s presence and with respect to which the jury should be informed