People v. Norton

PLUMMER, J. The defendant in this action was,' on the sixteenth day of January, 1934, arraigned upon an information charging him with lewd and lascivious conduct, etc. To the information the defendant entered a double plea— “guilty”, and “not guilty by reason of insanity”. Following this plea a trial was had to determine the mental condition of the defendant at the date of the commission of the act to which he had pleaded guilty. The defendant having been found sane, this appeal is taken from the order of the court denying the defendant’s motion for a new trial, and the judgment pronounced upon the plea of guilty and the finding of the jury that the defendant was sane at the date of the commission of the act alleged.

The first reason assigned for reversal is based upon the contention that the court did not follow the provisions of section 1027 of the Penal Code, wherein it is specified that where a defendant pleads not guilty by reason of insanity, two alienists must be appointed, at least one of whom must be from the staff of a state hospital.

The record shows that upon the entry of the plea of not guilty by reason of insanity, the court appointed Dr. Margaret H. Smyth, superintendent of the state hospital for the insane at Stockton, and Dr. E. M. Wilder, of Sacramento'. No objection appears in the record to have been made as to the competency of either of the persons appointed by the court to examine into, report and testify as to the mental condition of the defendant.

. The chief point of attack upon this appeal in this particular is directed against Dr. Wilder, in. that the doctor, upon his cross-examination, in open court, stated that he was not an alienist, that is, he was not a person, at the present time, giving special attention to the treatment of mental disorders. While the language of section 1027, supra, appears to be mandatory in form, we think it is incumbent that the objection as to the competency of the person appointed by the court should be timely interposed in order [73]that the trial court may correct any error therein, if error there be. This appears to be the holding of this court in the case of People v. Wiley, 111 Cal. App. 622 [295 Pac. 1075].

The testimony of Dr. Wilder shows that the following foundation was laid for its introduction (we quote from the record as follows): “Q. Of what medical institution are you a graduate? A. University of California Medical. Q. Have you made any special study of mental disorders or mental diseases? A. Well, I began in the Napa State Hospital for two years when I was a young man; since that time I have studied it and been qualified as an expert in some of the counties of the State and in the Federal court. Q. That presupposes, does it, examination of persons whose mental condition is under question?' A. Yes, sir, that presupposes it.” The witness further testified that there had come under his observation and for him to pass upon, between 300 and 500 cases where the mental condition of the patient was in question. The physician further testified that he was giving special attention, and had been for some time, to other diseases. Upon cross-examination the doctor further testified: “Q. Now, Doctor, as a matter of fact you are not a specialist in insanity, are you? A. No, I am not a specialist in insanity; I do not treat the insane. The courts have been kind enough to qualify me as an expert in the examination of the insane—that is the distinction.”