PEOPLE v. CHAMBERLAIN

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District Court of Appeal, Third District, California.

PEOPLE v. CHAMBERLAIN.*

Cr. 1479.

Decided: February 28, 1936

L. R. Lambert and C. W. Anderson, both of Santa Rosa, for appellant. U. S. Webb, Atty. Gen., Ralph H. Cowing, Deputy Atty. Gen., and Wm. F. Cowan, Dist. Atty., and Toland C. McGettigan, Deputy Dist. Atty., both of Santa Rosa, for the People.

The defendant was charged with murder. Under the provisions of section 1016 of the Penal Code he pleaded not guilty of the offense charged and also not guilty by reason of insanity. The jury rendered a verdict of guilty of murder of the first degree with a recommendation of imprisonment in the state prison for the remainder of his life. A subsequent trial on the issue of his sanity at the time of the commission of the offense resulted in a verdict that he was then sane. A motion for new trial on the issue of insanity alone was then presented and denied. Judgment was accordingly pronounced imprisoning him in the state prison at San Quentin for the balance of his lifetime. This appeal is from the order denying defendant's motion for a new trial and from that portion of the judgment of conviction which determines that the defendant was sane at the time of the commission of the homicide with which he was charged.

The question as to whether a defendant may appeal from a portion only of the judgment of conviction rendered against him which determines the one issue of insanity is not raised by this record, and we therefore refrain from expressing an opinion regarding that subject. For the purpose of this appeal we shall assume the notice of appeal which was given in this case was sufficient to authorize this court to consider the sufficiency of the evidence and the regularity of proceedings upon both the charge of murder and the issue of insanity which were separately presented to the jury.

The evidence abundantly supports the verdict and judgment to the effect that the defendant is guilty of murder of the first degree, except for the issue of insanity which will be hereafter considered. The defendant concedes this is true. The appeal is taken “from that portion of the verdict (and judgment) on the plea of not guilty by reason of insanity alone,” and from the order denying the motion for new trial on the grounds that the evidence fails to support the verdict that the defendant was sane at the time of the commission of the homicide, and that the court erred in instructing the jury on the trial of the issue of sanity that the concurrence of nine of its members was sufficient to render a verdict that the defendant was then sane.

The judgment in so far as it finds the defendant guilty of murder of the first degree with a recommendation for life imprisonment is fully justified by the evidence.

The court erred in instructing the jury, which tried the issue of the defendant's sanity at the time of the commission of the homicide, that “it is not necessary that your verdict be a unanimous one as regards this particular issue. That issue is to be decided not by a unanimous opinion but according to the law by three-fourths of your number, or when nine of you have agreed upon a verdict you can return the same to the court.” Insanity is merely a separate defense to the charge of a crime. It is therefore necessary that the jury shall unanimously determine the merit of a defense of insanity like any other defense to an alleged crime before the accused person may be found guilty of the offense with which he is charged. People v. Bradshaw, 5 Cal.App.(2d) 528, 43 P.(2d) 317, 318; People v. Garcia, 98 Cal.App. 702, 277 P. 747. In both of these cases hearings were denied by the Supreme Court. The Bradshaw Case, above cited, was reversed by the Appellate Court on the sole ground that the trial court erred in giving to the jury which tried that case on the issue of insanity almost the identical instruction which is challenged in this case to the effect that the concurrence of nine jurors was sufficient to render a valid verdict on that issue. The Appellate Court held that that charge constituted reversible error. The clear inference from the language employed in that opinion is that it requires an unanimous verdict of a jury to determine the issue of insanity imposed as a defense to a criminal charge. The Supreme Court approved that declaration of the law by denying a hearing upon petition therefor. The fact that the Appellate Court there said: “The people admit that the last instruction [authorizing the jury to determine the issue of insanity by the concurrence of only nine of its members] was erroneous” does not detract from the binding force of that decision which clearly holds that the verdict of a jury on the issue of insanity imposed as a defense to a criminal charge, must be unanimous.

In support of the rule requiring an unanimous verdict on the issue of insanity imposed in a criminal action, it has been frequently held that the procedure prescribed by section 1026 of the Penal Code requiring separate hearings before the same or different juries upon the crime with which the defendant is charged and upon the special defense of insanity are, in effect, but one and the same trial. People v. Troche, 206 Cal. 35, 48, 273 P. 767; People v. Leong Fook, 206 Cal. 64, 70, 273 P. 779.

It is inconsistent to hold that an unanimous verdict is required on certain issues of a criminal case, and that a valid verdict affecting another issue of the same case may be rendered by the concurrence of a less number of the jurors.

That erroneous instruction is, however, not reversible error under the circumstances of this case for the reason that it is not shown to have been prejudicial. The record on appeal indicates that the verdict of the jury on the issue of insanity was unanimous. The verdict was signed by the foreman, received, recorded and declared by the jury in open court in the usual manner. After the verdict was recorded by the clerk the judge of the court inquired of the jury: “Ladies and gentlemen of the jury, is that your verdict as declared by the Clerk?” To which inquiry the record shows: “(The jury answers in the affirmative.)” The jury was not polled. The defendant waived his right to challenge the sufficiency of the verdict by failing to request the polling of the jury under the provisions of section 1163 of the Penal Code. That was the opportunity furnished by law for him to ascertain the exact position of each juror with relation to the verdict. If the verdict was assented to by all of the members of the jury, the challenged instruction was harmless although it was erroneous. We must assume the verdict was returned by unanimous vote of the jury since no dissenting vote was announced when it was formally assented to and declared in open court. There is nothing in the record indicating that the verdict was not unanimous. The defendant did move for a new trial on the issue of insanity on the ground that the verdict was not unanimous. This motion was supported by an offer to introduce an affidavit of the foreman of the jury. Upon objection, this affidavit was rejected. The affidavit is not contained in the record on appeal. We can only speculate as to the averments of the affiant which are contained in that affidavit. The court properly excluded that affidavit. No rule of evidence is better established than that which declares that a juror may not impeach a verdict returned in a trial in which he participated by evidence subsequently supplied either orally or by affidavit, except to prove that the verdict was reached by lot or chance. Section 657, Code Civ.Proc.; People v. Kromphold, 172 Cal. 512, 524, 157 P. 599. This case does not come within that exception. We are therefore bound to assume that the challenged instruction was harmless and that the verdict is valid on the assumption that it was concurred in by each of the members of the jury.

We are, however, impelled to hold that the verdict on the issue of insanity is not supported by the evidence. There is no substantial evidence to indicate that the defendant was sane at the time he perpetrated the homicide in question. Upon the trial of the issue of insanity, pursuant to the provisions of section 1369 of the Penal Code, the defendant called ten nonexpert witnesses who related incidents strongly indicating that Mr. Chamberlain was insane at the time of the commission of the offense with which he was charged. There was evidence of insanity in his family supporting the theory that he probably inherited insane tendencies. Several of these witnesses testified that he was irrational or insane, giving their reasons therefor. None of them thought he was sane. The evidence of a deranged state of mind on his part is very convincing. The defendant was called and examined at great length as a witness in his own behalf. He seemed to resent the inference that he was insane. We are convinced no unbiased person can read the record of his testimony without absolute conviction that his mind is radically and hopelessly deranged. Dr. Thurlow, a reputable physician, and graduate of the Medical School of the University of Michigan, with twenty-five years of active practice in his profession, was called as an expert witness. He had carefully examined the defendant including his family history with the express purpose of ascertaining the state of his mind. He had also listened to the examination of the defendant as a witness in the trial of this case. He positively asserted that the defendant was insane at the time of the commission of the homicide, and that his mental disease had existed for a period of at least ten years. He classified his mental disorder as paranoia which is indicated by fixed delusions of persecution, egotism and homicidal or suicidal tendencies, all of which symptoms the defendant had displayed. He was certain that the state of the defendant's mind precluded him from distinguishing between right and wrong and from realizing that it was wrong for him to have killed his victim and to have attempted to kill another individual. The doctor was very fair, positive of his opinions, clear and explicit in applying the facts and history of the case in support of his belief that the defendant was a chronic paranoiac. In a thorough and able cross-examination the evidence of Dr. Thurlow to the effect that the defendant was insane when he committed the homicide was strengthened rather than weakened.

In addition to the testimony of Dr. Thurlow, the court appointed and summoned two other alienists pursuant to the provisions of section 1027 of the Penal Code. Dr. Johnson, superintendent of the Napa State Hospital, and Dr. Cushman, superintendent of the Mendocino State Hospital, were examined as medical experts regarding the state of the defendant's mind. Both of these medical experts carefully examined the defendant before the trial, including his family history, and both of them heard the defendant's evidence adduced in court. Each of these doctors positively pronounced the defendant insane at the time of the commission of the homicide, giving his reasons therefor. They also classified him as a chronic paranoiac and asserted that he did not realize the difference between right and wrong or that the homicide which he committed was wrong. There is no substantial evidence in the record to the contrary. When the defendant closed his affirmative showing on the issue of insanity and rested his case, the prosecution also rested without adducing any evidence to rebut the case of the defendant. The prosecution rested solely on the presumption of law that all men are presumed to be sane. Upon that evidence the jury returned a verdict of sanity.

The mere disputable presumption that all men are deemed to be sane until the contrary appears from competent proof is of slight value in support of the verdict of sanity in this case, if, indeed, it is not entirely dissipated by the convincing proof of insanity which was adduced by the defendant without any attempt on the part of the prosecution to rebut that evidence by expert or nonexpert testimony. It is said in that regard in the case of Savings & Loan Society v. Burnett, 106 Cal. 514, at page 529, 39 P. 922, 925: “Disputable inferences or presumptions, while evidence, are evidence the weakest and least satisfactory. They are allowed to stand, not against the facts they represent, but in lieu of proof of them. The fact being proven contrary to the presumption, no conflict arises.”

In the present case the evidence of insanity is so convincing that the mere presumption of sanity is scarcely worthy of consideration. The prosecution appears to have conceded that fact by failing to offer any evidence to rebut the showing made by the defendant on that issue. The burden was on the defense to prove insanity by a mere preponderance of the evidence. It may not reasonably be said this presumption warranted the jury in finding the defendant to be sane, in view of the persuasive character of the evidence of his insanity. Reputable, experienced expert witnesses should be of great value in determining the sanity of a defendant under the circumstances of this case. All of the expert witnesses agree that he was insane. There appears to be nothing unreasonable in their testimony. In the absence of evidence to the contrary, the jury was not warranted in rejecting all of the evidence and arbitrarily finding a verdict in conflict therewith. We are of the opinion the motion for a new trial on the ground that this verdict was not supported by the evidence was erroneously denied. We are unable to find any substantial evidence to support this verdict. The presumption of the sanity of the defendant was completely and effectually dispelled by uncontradicted evidence to the contrary.

It is true that the jurors are the sole judges of the credibility of witnesses and of the weight of evidence. It is also true, as it is expressed in section 1127b of the Penal Code, that the opinions of expert witnesses may be disregarded by the jurors if the conclusions of such witnesses appear to be unreasonable. That section provides: “Duly qualified experts may give their opinions on questions in controversy at a trial. To assist the jury in deciding such questions, the jury may consider the opinion with the reasons stated therefor, if any, by the expert who gives the opinion. The jury is not bound to accept the opinion of any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion, if it shall be found by them to be unreasonable.”

This section does not authorize a jury to arbitrarily disregard or reject the testimony of an expert witness without cause. It should be fairly and impartially considered and given such weight as it is reasonably entitled to, reconciling it if possible with all of the other credible evidence in the case. But in the present case all of the evidence, including that of expert and nonexpert witnesses, points to the inevitable conclusion that the defendant was insane. We are aware of the fact that miscarriages of justice have occurred and that many guilty persons have escaped the penalties for their crime through fraudulent simulation of insanity. But the law is unalterably opposed to the punishment of individuals who are insane, for the humane reason that they are deemed to be irresponsible for their acts and conduct while mentally deranged. In accord with that policy section 1367 of the Penal Code provides that: “A person cannot be tried, adjudged to punishment, or punished for a public offense, while he is insane.”

Appalling as the tragedy of this case is, it would be a grave injustice to permit a verdict of sanity to stand with such convincing evidence of insanity as this record discloses without the evidence of a single expert or nonexpert witness to refute the issue. This is especially true since the law requires the defendant to establish his defense of insanity by a mere preponderance of the evidence.

Under the provisions of section 1260 of the Penal Code the judgment of conviction may be modified by reversing that portion relating to the special issue of insanity and remanding the cause for retrial of that issue alone. The nature of this case is such that the prosecution should be given the opportunity to retry the issue of insanity if it elects to do so. The judgment may be affirmed on the issue of murder and the cause remanded for a new trial on the sole issue of insanity. People v. Marshall, 209 Cal. 540, 547, 289 P. 629; People v. Marshall, 99 Cal.App. 224, 278 P. 258; section 1260, Pen.Code.

The order denying the motion for a new trial on the issue of insanity is reversed. The judgment is modified in so far as it determines that the defendant was sane at the time of the commission of the homicide in question, and as so modified the judgment is affirmed. The cause is remanded for a new trial on the sole issue of insanity at the time of the commission of the offense with which the defendant was charged.

PER CURIAM.

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