People v. Ellsworth

GAROUTTE, J.

Defendant has been convicted of murder of the second degree, and appeals from the judgment and order denying his motion for a new trial. The single question presented by this appeal arises upon a ruling of the court rejecting certain proposed evidence offered by the defendant. The sole defense was insanity, and we must test the soundness of the court’s ruling in view of that defense.

It was proposed to show by the evidence of the witness Shearer, an acquaintance, certain declarations and acts of de

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fendant. The questions asked the witness, and to which objections were sustained, a-re as follows: “1. Did he at that tim'e state to you what to your mind showed that he was in great peril of his life?

2.

What acts, if any, of the defendant were the acts of fear on his part-—what did he do?” In this connection counsel for defendant stated that he proposed to show by the witness "that the defendant was that night in such a great fear, in fact in fear of his life, and he made such statements to this witness —that he was afraid of his life, and insisted that the witness accompany him to his home, stating that he was fearful they would take his life.” It appears from the record that the trial court denied the admission of this evidence upon the ground that testimony as to acts and declarations of defendant was not admissible unless counsel also asked the witness his opinion of defendant’s sanity or insanity, counsel for defendant at the time stating that he did not intend to ask questions of that kind of the witness. The reason which appears to have moved the court in denying answers to the foregoing questions is not legally sound. The trial court evidently rested its ruling upon section 1870 of the Code of Civil Procedure, which provides that evidence may be given of the "opinion of an intimate acquaintance respecting the mental sanity of the person, the reason for the opinion being given.” This section alone refers to cases where opinion evidence may be given, and in no way purports to curtail the right of defendant to show his acts, declarations, etc., as evidence tending to prove his insanity. Whether or not those acts and declarations are simulated is a question of fact for the jury.