PEOPLE v. JACOBS (1935)

Appellant, William J. Jacobs, was accused by information of the crime of murder committed in the killing (by shooting) of one Lillian Newlon, and with the crime of assault with a deadly weapon upon one Adelaide E. Flint with intent to commit murder. To each count of the information he interposed a plea of not guilty by reason of the fact that he was insane at the time of the commission of the alleged unlawful act. Upon this defense he was tried by a jury and found to be sane. He appeals from the judgment and from an order denying his motion for a new trial.

During a protracted trial, numerous lay witnesses and medical experts, including those called by the prosecution, those called by the defense, and three experts appointed by the court, expressed conflicting opinions as to the sanity of the defendant. Dr. Schurmeier, a licensed physician who qualified as an expert, was called by the defendant. He was asked a hypothetical question by the defense which recited much of the history of the defendant's life and which summarized the testimony of a number of defense witnesses who had described the defendant's conduct upon various occasions, and who characterized it as abnormal, irrational, or insane. This question was objected to by the people and the objection was overruled; whereupon the court addressed the jury as follows: “The law is pretty well settled on these hypothetical questions. The facts assumed, of course, in the hypothetical question are assumed for the purpose of the question alone, and for no other purpose, and the jury are so instructed, and you will be further instructed upon that subject to disregard the testimony of any expert witness unless you are satisfied that all of the facts upon which the question is based are true.” The witness thereupon answered that defendant was medically insane. Dr. Preuss, a medical expert called by the defense, was asked the same hypothetical question. Before he was allowed to answer it, the court again instructed the jury to disregard the testimony of expert witnesses unless satisfied that all of the facts upon which the question was based were true, stating that the jury would be further instructed upon this subject later. Dr. Preuss then gave his opinion that the defendant was insane. In the cross-examination of Dr. Brush, a medical expert testifying for the prosecution, defense counsel, after reciting the substance of the testimony of defense witnesses describing alleged irrational conduct of the defendant, asked the witness whether the defendant, exhibiting the enumerated symptoms, was suffering from paresis. The court again admonished the jury to disregard the opinion unless the assumed hypothesis was believed to be true, and the admonition that all the assumed facts must be found to be true was given when the defense hypothetical question was propounded on cross-examination to Dr. Hamilton, a witness for the prosecution.

These repeated instructions of the court did not correctly state the law. By the references to “the testimony” of the experts the court probably had in mind only the opinions given in answer to the hypothetical questions, but the jury may not have so understood the instruction. There was other material and important testimony given which was not at all dependent upon the facts assumed in the defense questions and which could not properly be disregarded. We will assume, however, notwithstanding its ambiguity, that the instruction was understood by the jury as applying, not to all of the testimony of the experts, but merely to their opinions, but so understood, it is clearly erroneous. It is not necessary that the jury believe all of the facts stated in a hypothetical question to be true before effect can be given to the opinion of an expert witness based thereon. The correct rule is stated in Treadwell v. Nickel, 194 Cal. 243, 228 P. 25, 34, as follows: “When the evidence is sufficient as a basis for a hypothetical question, the truth or falsity of the purported facts is a question for the jury to determine. Coonan v. Loewenthal, 129 Cal. 197, 203, 61 P. 940. The opinion can have little, if any, value unless the material facts assumed in such question are substantially true, and the court may properly so instruct the jury whenever there is conflicting evidence as to the truth of the assumed facts. Such opinion evidence does not, however, necessarily become wholly valueless because there is some variance between the facts assumed in the question and the actual facts proven. What weight should be given in such cases to the opinion of the expert witnesses is a question for the jury under proper instructions from the court. Anderson v. Husted, 79 Conn. 535, 538, 66 A. 7; Madden v. Saylor Coal Co., 133 Iowa, 699, 704, 111 N. W. 57. An expression in Hallawell v. Union Oil Co., 36 Cal. App. 672, 685, 173 P. 177, 183, that ‘counsel objecting (to a hypothetical question) may have the instruction of the court to the jury to disregard the testimony of the expert unless satisfied that all of the facts upon which the question is based are true,’ is mere dictum, and does not correctly state the law relating to expert testimony, and is at variance with a later statement by the same court of the correct rule. Graves v. Union Oil Co., 36 Cal. App. 766, 770, 771, 173 P. 618.”

It is the province of the jury to judge from the direct and the cross examination of an expert witness what facts bearing upon the issue form the basis for the expert opinion, and to judge further from the entire evidence relating thereto whether the facts relied upon are established. The testimony may disclose that some of the assumed facts are regarded by the witness as material and important while others are deemed either not relevant to the issue or are regarded by the witness as unimportant in the foundation upon which the opinion is rested. The instruction that the opinion of the expert should be disregarded unless all of the assumed facts were believed by the jury to be true imposed an undue burden upon the defendant in that it improperly tended to weaken the effect of the testimony of the defense experts.

It is contended by the people that the error cannot be relied upon in the absence of an exception taken at the time the instruction was given. We are cited to no case which limits the scope of the exception which is preserved by section 1176 of the Penal Code to the giving or refusal of instructions. The instruction in question was given upon the court's own motion. No proceedings were had which could be relied upon as showing acquiescence by the defendant. The court stated that the jury would be further instructed upon the subject. We think the defendant had a right to rely upon the exception which the law preserves for him and to expect any error to be corrected when the jury was finally instructed.

In another instruction given upon submission of the case, the court instructed the jury in part as follows: “A hypothetical question is a question which assumes a certain condition of things to be true, a certain number of facts proved or to be proved, and calls upon the witness to assume all the material facts stated to be true and express his opinion as to certain conditions. The witness to whom the hypothetical question is addressed assumes them to be true, and bases his answer upon the assumed case. The opinion of the witness must, therefore, be brought by you to the test of the truth of the facts in order that you may judge what weight the opinion is entitled to.” It is contended by respondent that this instruction cured any error which the court may have committed in instructing the jury that it must find all the assumed facts to be true before giving effect to the expert opinion. We are unable to attribute such effect to the instruction. The erroneous statement in the instruction was clear and explicit and was neither withdrawn, qualified, nor explained by the general statement in the later instruction that the opinion of the witness must be brought to the test of the truth of the facts; nor do we believe that the statement in the latter instruction, that the witness assumes all material facts stated to be true, cured the error in the former instruction. The two instructions when read together still left the jury under the duty of disregarding the experts' opinions unless they believed the truth of all the assumed facts to be established.

The court, of its own motion, gave the following instruction: “Duly qualified experts may give their opinion on questions in controversy at the 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 opinions 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.” This instruction follows section 1127b of the Penal Code, omitting, however, the concluding phrase which reads, “if it shall be found by them to be unreasonable.” The instruction as given differed in an important respect from the instruction sanctioned by the Code, in that it left the jury free to disregard altogether the opinions of expert witnesses without determining whether such opinions were reasonable, or even if they might have believed them to be reasonable. The instruction was erroneous in its unqualified statement that the evidence might be wholly disregarded. To disregard it would be to pay no attention to it, to ignore it, which, of course, cannot be done. The inconsistent and conflicting statements in the instruction cannot logically be reconciled. If it was intended to preserve the meaning, there was no reason for departing from the language of the statutory instruction.

That it is improper for the court to instruct the jury as to the comparative weight of different classes of evidence has been frequently decided. In People v. Vereneseneckockockhoff, 129 Cal. 497, 58 P. 156, 62 P. 111, it was held reversible error to instruct the jury “that circumstantial evidence has this great advantage, that various circumstances from various sources are not likely to be fabricated”; and in People v. Nichols, 69 Cal. App. 214, 230 P. 997, 1000, it was held to be an invasion of the province of the jury to give an instruction to the effect that testimony of an alibi should be scrutinized with care to make sure that the defense is not fabricated. In Re Estate of Blake, 136 Cal. 306, 68 P. 827, 828, 89 Am. St. Rep. 135, the court said: “There is no law that declares that the testimony of experts is unsatisfactory and unreliable. If so, the law should not allow it to be given in evidence. It is said by Lawson, in his work on Expert and Opinion Evidence (2d Ed.) p. 181: ‘The credibility of the experts–the weight to be given to their testimony–is as much the province of the jury to determine as any other class of witnesses; and hence the court, in most of the states, is not permitted to advise the jury in the matter at all, or to assume to instruct as to whether expert or nonexpert evidence has greater weight.”’ In Rolland v. Porterfield, 183 Cal. 466, 191 P. 913, 914, it is said: “Whatever the individual opinion as to the value of expert testimony, it has been clearly settled in this state that, as regards the preference or weight to be given the testimony in any particular case, the law makes no distinction between expert testimony and evidence of other character, and that, when there is a conflict between scientific testimony and testimony as to the facts, the jury, or trial court, must determine the relative weight of the evidence.” In Hirshfeld v. Dana, 193 Cal. 142, 223 P. 451, 460, the court said: “Since the law authorizes the admission of expert testimony, like all other matters of fact, it should be left strictly to the jury to weigh and determine its effect and value unaided by the court, either by disquisitions on that character of evidence or by directing the mental processes of the jurors as to how they should resolve it into facts. * * * But it is never proper to instruct the jury that expert testimony is or is not reliable or as to how the jury should appraise it.”

In other jurisdictions the principle is declared that competent opinion evidence may not be arbitrarily disregarded and that when unopposed it must be accepted. Jensen v. Wisconsin Central Ry. Co., 145 Wis. 326, 128 N. W. 982; Kerwin v. Friedman, 127 Mo. App. 519, 105 S. W. 1102; Harris v. Nashville C. & St. L. R. Co., 153 Ala. 139, 44 So. 962, 14 L. R. A. (N. S.) 261; J. T. Morgan Lumber Co. v. Williams, 143 Ky. 115, 136 S. W. 131.

The court also instructed the jury in part as follows: “It does not matter from which side the evidence comes, whether from witnesses for the prosecution or witnesses for the defendant, or witnesses appointed by the court. You are entitled to consider all the evidence in the case, weighing it on the same scales, and giving to each part thereof such weight and value as you believe it to have.” Neither this instruction nor the general instructions to the effect that the jury are the sole judges of the facts and the weight of the evidence can be construed as a correction or limitation of the erroneous statement that the jury might altogether disregard the opinions of expert witnesses. We are therefore of the opinion that the case was submitted to the jury without qualification of the erroneous statements of the law relating to expert testimony.

Dr. Myers, one of the experts appointed by the court, testified on direct examination that at the time he examined the defendant on December 18, 1934, defendant at no time failed to know and distinguish between right and wrong. Dr. Brush, a prosecution witness, also testified on direct examination that at the several times when he examined the defendant at the jail defendant “at all times appreciated the difference between right and wrong–that he knew that he had committed a crime; he knew the nature and quality of his acts.” Defendant moved to strike out these statements upon the ground, among others, that the testimony invaded the province of the jury. The motions were denied. In this the court erred. The evidence was inadmissible. In People v. O'Brien, 122 Cal. App. 147, 9 P.(2d) 902, this court reviewed the authorities and adopted the rule that opinion evidence may not be received in criminal cases upon the question whether the defendant was able to distinguish between right and wrong. The court said, 122 Cal. App. 147, at page 154, 9 P.(2d) 902, 904: “Not only by the courts of this state, but as well by courts of other jurisdictions, wherein the rule obtains by which testimony of the nature of that here under consideration is denied admission, the universal reason assigned therefor is that such evidence trenches upon the province of the jury in that it permits a witness to decide the very question upon which the jury alone is qualified to pass judgment.” It is true of that case, as respondent points out, that the witnesses who were asked to state whether the defendant was able to distinguish between right and wrong were not expert witnesses. They were, however, intimate acquaintances, whose opinions as to the sanity of the defendant, together with their reasons therefor, were admissible. We think it makes no difference whether the objectionable testimony comes from lay witnesses or experts. It is the nature of the testimony and the fact that it invades the province of the jury that render it inadmissible. The competency of the witness is not involved. In People v. O'Brien, supra, the decision was not placed upon the ground that the witnesses were nonexperts and the authorities relied upon were cases in which it was held that opinions of experts upon the ultimate fact in issue are inadmissible. Qualified witnesses, expert or nonexpert, may express opinions upon the question of sanity, but under our legal system the jury must decide in a criminal case where insanity is the defense whether the accused was capable of distinguishing between right and wrong at the time of the commission of the act. As pointed out in the O'Brien Case, testimony such as we are here considering would in reality amount to expressions of opinions of witnesses that the defendant was or was not legally responsible for the acts with which he was charged. To sanction the practice of allowing psychiatrists to determine and testify as to the legal accountability for their acts of those claimed to be insane would substantially change the law. The right of jury trial extends to the defense of insanity in criminal cases and may not be abridged by a relaxation of the settled rules of evidence. It is further argued by respondent that the statements of the doctors were properly received because they were given not in response to direct questions, as in the O'Brien Case, but as reasons why they believed the defendant to be sane, and it is argued also that because the statements related not to the date of the crime, but to the date of the examinations made later, they did not attempt to decide the question of the mental responsibility of defendant on the date of the shooting. These distinctions are without significance. We are concerned with the effect of the testimony upon the defendant's case, and it was just as harmful coming in by one route as by another and being improper as evidence was therefore no less objectionable. The doctors testified not only as to the sanity of the defendant at the time of their examinations but as to his sanity on the date of the shooting. Since their opinions were based upon the previous history of the defendant and upon their later examinations, and inasmuch as there was no suggestion that there had been any change in the defendant's condition subsequent to the shooting, the opinions of the doctors to the effect that defendant was able to distinguish between right and wrong could only have been understood as relating also to the date upon which the acts charged were committed. The statements volunteered by the doctors should have been stricken out on defendant's motion.

In a voluminous brief the district attorney and the Attorney General present an elaborate and lengthy argument in which they earnestly contend that had the above rulings and instructions of the court been different, defendant would nevertheless have been convicted, because of the alleged overwhelming weight of evidence of his sanity. If this argument is sound there should be an affirmance under section 41/212, article 6 of the Constitution. In passing upon this question, we have reviewed the entire evidence upon the issue of defendant's sanity. The case is not one in which an obviously sane person has presented a sham defense of insanity. Upon the contrary, the evidence of defendant's insanity was of a substantial character. In giving our reasons for these views we shall not attempt to state the entire evidence nor to give more than a concise summary thereof upon which we base our conclusions as to the cumulative weight of the several classes of evidence offered in support of the defense of insanity.

Defendant was a physician fifty-three years of age, practicing his profession in the city of Santa Barbara, where he had resided since 1924. For several years Adelaide Flint was employed in his office. Between the years 1927 and 1933 an illicit relationship had existed between them. This resulted in a temporary estrangement between defendant and his wife, the institution of a divorce action by defendant, and a suit for alienation of affections by the wife against Miss Flint, which was compromised and defendant's divorce suit withdrawn. After the termination of their intimacy, defendant developed an intense hatred of Miss Flint. He also became extremely bitter toward Mrs. Newlon, who lived with Miss Flint, in part because he blamed her for causing police officers to enter Miss Flint's home at a time when he was visiting there and because he believed she had interfered in his affairs with Miss Flint. He had had altercations with Mrs. Newlon's son. Defendant believed that Miss Flint had transferred her affections to or had relations with other men. He wrote a number of letters and cards addressed to and concerning Miss Flint and the Newlons, in which he referred to Miss Flint in vulgar terms and shamelessly adverted to his past relations with her, and in which also he made references to the Newlons. The evidence shows that defendant was greatly disturbed by his thoughts and feelings toward these women. On the 7th day of November, 1934, he drove by them upon a street in Santa Barbara and spoke to them, calling Miss Flint a snake. Some ten or fifteen minutes later, at a point several blocks further down the street, defendant alighted from his car, walked up to the women, and, without warning, started shooting at them from close range. When his victims had fallen, he got into his car and proceeded home at rapid speed. There he took a large quantity of morphine and reloaded his revolver with the apparent intention of shooting himself, from which he was dissuaded by his mother. When the officers came to arrest him, he held them off with the revolver until they procured and returned with a warrant for his arrest. Upon returning home after the shooting, he handed his mother a writing reading as follows:

“San Jose Justice

“Kill snakes as you meet them.

“To vindicate my home and my wife.

“My Regards to Miss Pearl Chase and

“Her dirty attorney Major McGregor

“Ask

“Dr. Saunders A common old Prostitute

“Psi Yun  and Home Wrecker.

“Mr. Capone Dr. Jacobs

“six and 1/212 yrs.

“(One man she didn't fool)

“One man at Bakersfield another at Pasadena.”

Other writings of similar import were introduced. One of these addressed to Miss Flint, commenced as follows: “You dirty nasty old snake. One year ago today you allowed the rotten Newlon family to call the police on me.” Other writings he signed, “Judas.” These writings showed him to be in a highly nervous and excited mental condition and disclosed his bitter animosity toward Miss Flint and Mrs. Newlon. The contents of the letters and memoranda, expressing as they did an unreasonable hatred and having no other apparent purpose, might well have been accepted by the jury as some evidence of mental derangement. Dr. Jenkins, a physician of Los Angeles, proprietor of a hospital, testified to an occasion, some five or six weeks prior to the shooting, when defendant brought a patient to Dr. Jenkins for an operation. After detailing the actions of the defendant over a considerable period of time on that occasion, Dr. Jenkins expressed the opinion, supported by intelligent reasons, that defendant was then insane. Allen Jacobs, a nephew, twenty-six years of age, testified to an occasion in 1931 while he was visiting defendant at the latter's request when defendant became greatly excited and abusive and trembled with anger because the witness returned to the house about 10 o'clock in the evening, and to a similar occasion the following evening, when the witness left defendant's house after being loudly cursed for returning home at 10 o'clock. He testified that on the latter occasion defendant, clad only in a nightshirt, followed him up the street for three or four blocks, cursing and upbraiding him and threatening to call the police. This conduct the witness designated as irrational. Other witnesses testified to violent rages which occasionally possessed defendant, and which they said he did not experience before 1929, to expansive ideas he entertained, to altercations which he had with tenants and neighbors, to threats of violence, and to other acts which they considered irrational and abnormal. The conduct of the defendant, as related by these witnesses, according to the testimony of the defense experts, disclosed symptoms of insanity. This testimony as a whole likewise furnished substantial evidence of mental derangement. It was an admitted fact that defendant was afflicted with syphilis which had progressed to a stage where it had affected his central nervous system. The medical testimony in the case revolved about the manifestations of the disease and the extent of the progress it had made toward the impairment of his brain. He undoubtedly was suffering from paresis in April, 1933, which resulted in damage to his brain. He received a course of treatment for about a year which benefited but did not cure him of the disease. Dr. Madge T. Holman, a physician who was a tenant of defendant for six or eight months, testified from personal observation and reports of clinical tests that in her opinion defendant was insane. Dr. Schurmeier and Dr. Preuss, in addition to the opinions given in response to the hypothetical question, gave their opinions, based upon medical facts and upon their personal observation of the defendant, that he was afflicted with paresis and insane. Dr. Preuss was shown defendant's writings and, basing his opinion upon these and upon laboratory tests showing a diseased involvement of the central nervous system, testified that defendant was insane at the time of the shooting.

Such, in brief, was the evidence tending to establish the insanity of the defendant. That it was sufficient, if believed, to show the defendant to have been mentally diseased and sometimes irrational, cannot be doubted. His mental disturbances seemed to center around Miss Flint and Mrs. Newlon, his hatred of the former being exhibited during his interviews with the medical witnesses of the prosecution following the shooting, and he unquestionably entertained the belief that they had wronged him, a belief not justified by any facts disclosed by the record. The mental condition of the defendant, as affected by his illness, presented a question which was peculiarly the subject of expert testimony. Whether the defendant remained a paretic after his treatment or, as admitted by experts who testified to his sanity, a potential paretic merely, was purely a matter of opinion. We are asked to reject in its entirety the testimony of the defense physicians or to hold it entitled to no weight because of its inherent weakness and to hold also that the jury must necessarily have disregarded it without reference to the instruction which advised them that they might do so. This argument, effective though it was with the jury, does not convince us that the testimony of the defense doctors did not carry substantial weight. While the medical testimony of the prosecution and that given by the court's experts was indeed strong, we cannot attribute to it that overwhelming force which would have compelled its acceptance by the jury. As to the testimony of the lay witnesses, while a large number testified to the sane conduct of the defendant at times when they dealt or conversed with him and as they observed him in the practice of his profession and in other activities, the evidence of the prosecution does not preponderate over that of the defense sufficiently to have required the jury to find that the defendant did not have a distinctly disordered mind. It was not contended that defendant acted irrationally at all times, nor was it contended that even though insane he would not at times be lucid and act in a normal manner. The evidence shows that the type of insanity which he claims to have been suffering from is one in which the evidence and manifestations flare up or subside from time to time.

Having reviewed the evidence sufficiently to show its conflicting character, we have to consider the effect of the errors upon the defendant's case and to determine whether they probably led to the verdict declaring defendant sane. It is not our duty to undertake to say from the record before us where the preponderance of evidence rests. Where the evidence is not only conflicting but is of such substantial character as to amply support either of two conclusions, it is a delicate question to decide whether there exists a condition of legal insanity. Misdirection of the jury in important particulars where a fine line of distinction must be drawn is more likely than in other cases to lead to false lines of reasoning and to erroneous conclusions. We are satisfied that the misdirection of the jury upon the subject of expert testimony tended directly and strongly to deprive the defendant of the full benefit of the testimony of his expert witnesses. There was no occasion for the court to instruct the jury upon the hypothetical question when it was propounded. To do so placed unnecessary emphasis upon the erroneous admonition. The uncalled for repetition of the statement magnified the effect of the error and could not have failed to impress the jury. The same instruction was not given the jury in connection with the opinions of the experts testifying for the prosecution or those appointed by the court. It might easily have been understood as a suggestion from the court that the evidence of the defense should be subjected to close scrutiny. As applied to the hypothetical question asked by the defense, the instruction could not have failed to be confusing and misleading. Some of the acts of defendant which had been termed irrational by the witnesses strongly indicated an unbalanced mind; others were reconcilable with a condition of sanity, and all were so intermingled with descriptions of the appearance and demeanor of the defendant, and with the inferences and conclusions of the witnesses, as to render it extremely doubtful whether the entire basis of the hypothetical question could have been accepted by the jury. The testimony of Drs. Schurmeier and Preuss does not show that either of these witnesses regarded all of the assumed facts to be necessary to show the insanity of the defendant. Under this instruction alone the defendant may have lost the benefit of their testimony.

We are convinced also that the defense of insanity was materially weakened by the instruction that the jury might disregard the expert testimony. The evidence was to the effect that defendant was suffering from paresis unless the medical treatment he received had removed that condition, which latter fact the defense experts denied. This question was exclusively one calling for professional opinion, and deserving of the most careful consideration. When and if it was removed from the case there was eliminated the very important fact that defendant was suffering from a dread disease which may have made inroads upon his mental faculties. The opinions of the defense doctors were very important because they took into consideration acts of the defendant which indicated the extent of the impairment of his mentality. When his condition, from a medical viewpoint had been established by clinical tests, it became necessary that full consideration be given to the manifestations of derangement as stated in the hypothetical questions and in the writings which, in part, formed the basis of the opinions of the defense experts. By its verdict, the jury rejected the testimony of Drs. Schurmeier, Preuss, Holman, and Jenkins. It is impossible to say that in so doing they did not follow the erroneous instructions. Even though it be assumed that the jury disregarded all of the expert testimony in the case, which cannot be known, the prosecution would still have had the benefit of the legal presumption that the defendant was sane, unless such presumption was overcome by the testimony of lay witnesses called by the defendant, unsupported by evidence of the fact that he was to a greater or lesser extent suffering from impairment of his mental faculties by reason of disease.

It follows also from the views we have stated that the receipt of the opinions of doctors Myers and Brush that defendant was able to distinguish between right and wrong was prejudicial to the defendant. As they were the only witnesses who gave such testimony, and as the jury was fully instructed that that was the ultimate test of sanity, it is not improbable that their testimony, for this reason alone, was accepted by the jury as decisive. We are of the opinion that the defense of insanity might reasonably have prevailed but for the errors which we have passed upon. The errors went to the very foundation of the defendant's case and were so potent in their harmful effects that we cannot say they did not prevent a verdict in defendant's favor. Therefore, there has not been a full and fair trial of the issue which constituted the sole defense of the accused.

The rule by which we are guided, in disposing of the appeal, is stated in People v. Davis, 210 Cal. 540, 293 P. 32, 39, as follows: “The phrase ‘miscarriage of justice,’ used as descriptive of that condition of a cause which justifies the reversal of a judgment, has no hard and fast definition. It seems assured, however, that where errors have been committed, and where the appellate court finds that upon the record it is seriously doubtful that without such errors the defendant would have been convicted, then it may well be that errors which otherwise would not be considered to be seriously prejudicial, will require a reversal.”

In People v. Wilson, 23 Cal. App. 513, 138 P. 971, 976, in discussing the applicability of section 41/212 of article 6 of the Constitution, the court stated: “It is not for us to say whether we think that the defendant is guilty. * * * We do hold that, if the jury had been instructed upon the law concerning their duty to consider the evidence of defendant's previous good character as a part of the evidence upon which they were to determine the question of his guilt or innocence, such instruction would have added a substantial item to the balance in defendant's favor, and might have changed the verdict. This being so, the case is one where the right of defendant to such instruction was a right the loss of which materially affected his general right to a fair and lawful trial.”

In People v. Nichols, supra, it is said: “Under the provisions of section 41/212 of article 6 of the state Constitution, whether the giving of an erroneous instruction does or does not constitute reversible error depends, in large measure, upon the conclusion of the Court of Appeal as to whether there has or has not been a miscarriage of justice by reason thereof. If it appears to the appellate court that the conclusion of the jury would have been the same with or without the instruction, then and in that case it cannot be said that a miscarriage of justice has resulted, but, where there is a strong conflict in the evidence, and the determination of the cause depends upon the credibility to be given to certain witnesses by the jury, and the court gives an erroneous instruction which tends to disparage such witnesses in the estimation of the jury, then and in that case we think that the people are not entitled to rely upon the provisions of the constitutional provision referred to, but that the defendant has not, under such circumstances, been given the fair and impartial trial to which all persons accused of crime are entitled.”

“The central or all-important purpose of said constitutional provision is obviously to legally justify the courts in refusing to interfere with or disturb verdicts of guilty in criminal cases in the trial of which error has been committed and in which the evidence amply supports such verdicts, when such interferences may justly be withheld consistently with a just and proper regard for the substantial rights of persons tried for public offenses.” People v. Tomsky, 20 Cal. App. 672, 130 P. 184, 189. Where the court cannot, after a careful review of the evidence, say that the jury if not improperly instructed would probably have reached the same conclusion, the error may not be disregarded. Langford v. San Diego Electric R. Co., 174 Cal. 729, 164 P. 398.

There is ample evidence to support the finding that defendant was sane, but this fact in itself furnishes no sufficient reason for an affirmance of the judgment. As was said in People v. Adams, 76 Cal. App. 178, 244 P. 106, 109: “It is perfectly clear, however, that section 41/212 of article 6 of the Constitution was not intended to mean that the mere fact that the evidence may support the judgment is a sufficient reason in all cases for refusing to set it aside. To give the section that meaning would often lead to gross miscarriages of justice, as where evidence vital to the case of a party is rejected or evidence vitally damaging to his case is erroneously admitted, or where the court erroneously instructs or refuses to instruct the jury as to the law applicable to an essential issue.”

A statement of the Supreme Court in People v. Roe, 189 Cal. 548, 209 P. 560, 566, has direct application here, namely: “While it is true that section 41/212 of article 6 of the Constitution confers upon this court the power to weigh, to a limited extent, the evidence in its entirety upon which a conviction has been had, still ‘we are not substituted for the jury. We are not to determine, as an original inquiry, the question of the defendant's guilt or innocence.’ We are to ‘decide whether, in our judgment, any error committed has led to the verdict which was reached.’ People v. O'Bryan, 165 Cal. 55, 130 P. 1042. We are satisfied that the verdict of guilty was arrived at by the aid of the inapplicable and admittedly erroneous instructions, and this is so, in our judgment, because they obviously obscured and crippled the defendant's defense to the extent practically of denying to her the right of any defense at all. We are fortified in this conclusion by the fact that a careful review of the cold record before us shows the evidence, educed upon the whole case, to be in irreconcilable conflict and closely balanced, in weight and quality, for and against the guilt of the defendant.”

The evidence of the people in the instant case is not so strong and convincing as to justify us in saying that it is improbable that the jury would have found defendant insane had the inadmissible evidence not been received, and had the jury been properly instructed as to the law. Therefore the exception provided by section 41/212 of article 6 of the Constitution applies, for in such case the determination of the question of sanity against the defendant under rulings and instructions which materially weakened his defense and strengthened the case of the people amounted to a miscarriage of justice within the meaning of the constitutional provision. The case is therefore one in which a reversal is required and not an affirmance under section 41/212, article 6 of the Constitution.

Appellant claims error in the ruling sustaining an objection to his hypothetical question asked Dr. Stevens on cross-examination. As the same situation may arise upon a retrial we deem it advisable to rule upon this point. The objection was properly sustained. While the question purported to state facts, it contained such conclusions as that “defendant has become increasingly irrational and abnormal”; that defendant's irrationality and abnormality were evidenced by “inconsistent acts,” by “delusions of grandeur”; that defendant's acts were “without apparent regard to his standing and reputation as a citizen and as a physician and surgeon in the community”; that he committed acts “in disregard of moral decency and sensitiveness.” The question was not in proper form. A hypothetical question should consist of a statement of facts and inferences of fact, as distinguished from pure conclusions and opinions of the type we have pointed out. For example, it would be confusing in the extreme to require an expert witness to give an opinion as to sanity based in part upon the opinion of a lay witness that upon some occasion the conduct of the defendant had appeared to him to be irrational or abnormal. In numerous particulars the question was subject to this criticism, as was illustrated when it was propounded to the experts during their cross-examination by defendant's counsel. They were unable to answer the question because they could not accept as understandable facts the generalities and conclusions given as a summary of the testimony of other witnesses. The question should have been reframed so as to avoid the objectionable descriptive embellishments and general statements which rendered it difficult or impossible of exact analysis.

We find nothing improper in the conduct of the court's expert, Dr. Myers, in making an effort to secure unanimity of opinion on the part of medical experts through conferences before the trial of the case. No undue persuasion was used by Dr. Myers to bring the others to his views. While a better purpose for the conferences would seem to have been a desire to arrive at the soundest possible conclusions, rather than to maintain the dignity of the profession by avoiding conflicting opinions, it does not appear that the conferences brought about any results that were unfair or prejudicial to the defendant. It is worthy of note, however, that the experts appointed by the court were satisfied to take defendant's history as related by himself, and that in forming their opinions they did not inquire into or have knowledge of the erratic and peculiar conduct of the defendant which, it was claimed in his defense, tended to prove him insane. We think these manifestations were important in determining the possible extent of the involvement of the defendant's mental faculties and that the opinions of the doctors would have been much more satisfactory had such facts been taken into consideration.

It is unnecessary to decide whether the defendant's instructions which were refused by the court were substantially covered by the instructions given. Upon a retrial the jury no doubt will be fully instructed.

The judgment and order denying a new trial are reversed.

SHINN, Justice pro tem.

We concur: HOUSER, P. J.; YORK, J.