sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue.

Appeal from the Superior Court of Mendocino County-J. Q. White, Judge.

For Appellants-Theodore Hale.

For Respondent-U. S. Webb, Attorney-General; J. Charles Jones, Deputy Attorney-General.

Defendants were jointly charged with murder, committed on December 10, 1913, and were convicted of murder in the second degree and sentenced to life imprisonment. They appeal from the judgment of conviction and from the order denying their motion for a new trial.

The grounds assigned for the new trial were as follows: 1. Refusal of the trial court to submit the question of present insanity of defendants for determination by a jury prior to trial; 2. Refusal to allow defendant McIntosh to defend himself in person, without counsel, and in assigning counsel without defendant's desire for aid on his part; 3. Admission of testimony of certain three inmates of the Mendocino state hospital for the insane, without preliminary examination as to their competency as witnesses, or as to whether they understood or appreciated the sanctity of an oath.

The sufficiency of the evidence to support the judgment is not questioned and the record contains only so much of the evidence and proceedings as bear upon the three foregoing assignments of error on the motion for a new trial.

1. It appeared that the crime for which defendants were convicted was committed in an attempt to escape from the Mendocino hospital for the insane in which both were inmates at the time. They had never been committed by any court. Defendant Peoples was sent to the hospital from Puget Sound, about October 24, 1913, upon the certificate of two surgeons of the United States Navy, stating that he was insane. Defendant McIntosh was sent to the hospital from San Quentin state prison, about November 10, 1913, upon the certificate of the warden, resident physician and surgeon and the captain of the yard, stating that in their opinion McIntosh was insane. The foregoing appears from the affidavit of Hale McCowan, Jr., one of defendants' attorneys, who stated that he had read the certificates above referred to. The original documents were not introduced but that they existed was not denied. Mr. McCowen also stated in his affidavit, presumably to indicate the mental condition of defendants, that their attorneys had been unable to secure any statement from defendants concerning the crime charged and that they refused "to say anything about the facts or circumstances and act as though suffering from some delusions of some character". Dr. R. L. Richards, superintendent of the state hospital, and Dr. Donald R. Smith, one of the physicians there in attendance, made affidavit that they had made an examination of defendants as to their insanity and deposed that they were sane.

[1] In pursuance of a humane consideration for persons charged with crime, the legislature has provided that if, "during the pendency of an action up to and including the time when defendant is brought up for judgment on conviction a doubt arises as to the sanity of the defendant, the court must order the question of his sanity to be submitted to a jury; . . . (Pen. Code, sec. 1368.) The question is presented upon conflicting affidavits and the doubt upon which the court was authorized to act was one which, from the evidence before it, rested solely in the mind of the court. Its determination was in the discretion of the court and can be here challenged only if shown to have been abused. The rule is well stated by Presiding Justice Lennon, in People v. Kirby, 15 Cal. App. 264, 269: "It is fair to assume that the trial court had ample opportunity to, and did, as was its duty, observe and note the defendant's mental condition from time to time, and in particular on the date when his present insanity was suggested. The knowledge thus acquired may have contributed largely toward rebutting any possible inference of present legal insanity which might have been deduced from the facts stated in the affidavit.

[2] "Section 1368 of the Penal Code contemplates that the doubt referred to therein must arise in the mind of the court having a defendant in charge (People v. Hettick, 126 Cal. 425, 58 Pac. 918; Webber v. Commonwealth, 119 Pa. 223, 4 Am. St. Rep. 634, 13 Atl. 427; and in the absence of such a doubt the court is not required to submit the question of the defendant's present insanity to a jury in advance of the trial. (People v. Geiger, 116 Cal. 440, 48 Pac. 389.)

"The denial by the court of the motion in question was the equivalent of an express finding that no doubt of the defendant's then mental condition was present in the mind of the court. We are not prepared to say from all of the evidence presented to and before the trial court upon the hearing of the motion that the court abused the discretion vested in it by the provisions of section 1368 of the Penal Code."

[3] 2. It is complained that defendant McIntosh was deprived of the rights given him by section 13, article I of the constitution of the state, which declares that the accused may "appear and defend, in person and with counsel". It appears from the record that when defendants were arraigned they were asked if they had an attorney or had money to employ one. Peoples answered: "No." McIntosh answered: "If the state does not wish to employ me a lawyer I will. Court: Well, the state will employ you one for the present and you can get another if you desire. I will appoint Mr. Theodore P. Hale and Mr. Hale McCowen, Jr., to defend the two." The following day defendants were called again for arraignment and pleaded not guilty. Some days subsequently, the trial came on and the jury box was regularly filled. "Defendant West (McIntosh): I would like to speak to you a minute, Judge. I would like to act as my own attorney. I don't prefer an attorney at all; I understand I have a right to pick seven of my own jurors. Court: Well, we'll see. You may be seated."

The jury was then regularly empaneled and sworn. "Defendant West: I would like to act as my own attorney; you know I spoke to the prosecuting attorney before that I did not care for a lawyer whatever, but the prosecuting attorney said you better appoint me one anyway, but I don't care for an attorney at all. I would like to act as my own attorney. Court: I think you better have an attorney. Defendant West: Well, I might use him as a dummy attorney, let the questions pass over his head." The record proceeds: "During the examination of the witness Gilley, the defendant West arose and stated as follows: 'I would like to be my own attorney from the start of the case to the end because my attorney he has no statement at all from Mr. Peoples whatever and I have no statement whatever to make, but I have the questions here that Mr. Peoples has written out and asked me to ask him in court, and the attorney knows nothing absolutely of it and I don't see why I shouldn't by law be my own attorney.' Court: The experience of the court and lawyers is that a man can get along better by having an attorney and you have two good attorneys. Defendants: There is no law agin it. (After the direct examination of the witness Droege) Defendant West: Judge, your Honor I think I should be my own attorney. Court: You may be seated." The foregoing comprises the record as to the point now under consideration.

It does not appear that McIntosh made any personal objection to the attorneys appointed by the court; nor that he was prevented from asking any questions of witnesses in the case, nor from addressing the jury. What the court seems to have done was to allow the attorneys to conduct the defense without depriving defendant from taking part in it had he offered to do so. We cannot assume that the court acted on the theory that defendant was insane and incapable of conducting his own defense, for in that case his present insanity should have first been inquired into. The court doubtless acted rather from a conviction that he was incapable from a want of knowledge how to conduct his defense and for his own protection allowed the attorneys to manage the case, not, however, withholding from defendant the right to participate in his own defense in any way he might desire. We fail to discover prejudicial error in the action of the court. On the contrary, under all the circumstances, it was, as we think, from every view justifiable.

3. Certain witnesses in the case were inmates of the Mendocino hospital. Their competency was challenged by defendants' attorneys. When witness Sanford Gibbs was called for the prosecution and swcrn, he was asked by the district attorney if he saw the trouble which happened at the hospital and answered that he did. "Mr. McCowen: We would like to ask, if this man was receiving treatment there at the hospital. We would like to have a little more foundation laid for his competency as a witness." The district attorney suggested that the way to determine the matter was to proceed with the examination from which it could then be seen whether the witness "was able to give a rational account of what he saw". Defendants' attorneys took the position that the witness having been committed to the

hospital as insane, the Code of Civil Procedure, section 1880, declares him incompetent to testify and that this is the rule alike in criminal cases. (Pen. Code, sec. 1321.) The fact that Gibbs and the other challenged witnesses were regularly committed inmates of the hospital was not denied. The court allowed the examination to proceed, defendants not asking the privilege of making a preliminary examination of the witness as to his present ability intelligently to narrate what he saw, nor demanding of the court that it should first require such examination. The same course was pursued with the other witnesses. [5] We held, in People v. Tyree, 21 Cal. App. 701, 704, et seq., that the burden is on the party objecting to show the incompetency of the witness and that the determination of the question by the judge is not matter for review. (Citing People v. Craig, 111 Cal. 460, 469.) Appellants contend that incompetency sufficiently appeared by showing that the witness had been committed to the state hospital for insane and had not been discharged. [6] Insanity of a witness may exist and he still be competent "if he have sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue". (District of Columbia v. Armes, 107 U. S. 521; People v. Tyree, supra.) [4] The testimony of this, and the other witnesses involved in the objection, shows that they were competent to testify. It is true that neither of them was examined to determine whether he had "sufficient understanding to apprehend the obligations of an oath", but if there was doubt upon that point in defendants' belief, they should have made some effort to show that the witnesses had not such sufficient understanding, for the burden was on them to show incompetency.

It is claimed that without the testimony of these witnesses the evidence was insufficient to support the verdict and hence their sanity should have been fully established. All the evidence was not brought up. We cannot say but that there was sufficient without that of these particular witnesses. But, conceding that it was necessary to the support of the verdict, it appears that the witnesses were capable of giving and did give a fairly intelligent account of the occurrences seen and heard by them. From all that appears, the court was justified in allowing these witnesses to testify and the weight and effect of their testimony was properly left with the jury.

The judgment and order are affirmed.

CHIPMAN, P. J.

I am not prepared to say that the trial court abused its discretion in refusing to submit to a jury the question of the present sanity of the defendants. We must believe that the judge entertained no serious doubt on the question, and the record shows substantial support for his action. However, it seems to me a very strong showing was made by appellants and I cannot but regret that their mental condition was not submitted to a jury for determination. Of course, it is true, as stated in People v. Ah Ying, 42 Cal. 18, that “Common humanity requires that one should not be tried for his life while insane." These

defendants were inmates of an insane asylum. The alleged offense was committed while they were attempting to escape. Peoples was sent to said asylum from the United States Navy after an examination made by the surgeon of the navy about a month before the homicide. Of course, it is fair to presume that he was under observation for some time before he was committed as an insane person and that before he was committed persuasive evidence of his insanity was presented. McIntosh was a prisoner at San Quentin and naturally was under the constant observation of the officials there. He was examined by the warden and the prison physician and the captain of the yard and, eighteen days before the homicide, they certified that he was insane and sent him to the Mendocino state hospital for treatment. The attorneys could get no information from their clients and in their opinion the defendants were insane. Such strong showing is probably not often made in similar cases and while, in view of the counter affidavits, it cannot be said that the trial judge was not legally justified in denying the motion, it seems to me that the issue might have been intrusted wisely, safely and humanely to the judgment of a jury.

It may be that the refusal of the court to permit McIntosh to plead his own cause did not result to his prejudice. Manifestly, that is a mere matter of opinion. If his request had been granted the verdict might have been the same. If we were permitted to speculate we might conjecture that the result to him would probably have been at least no more serious. But the court undoubtedly believed that he was sane and therefore he should have been permitted to act for himself in his defense. While the case should not be reversed on that ground, it is clear to my mind that the action of the court was unwarranted.

I think also that said witnesses, who were patients at the hospital, should not have been allowed to testify without a preliminary examination as to their sanity. It did sufficiently appear that they had been committed to the asylum, and this constituted a prima facie showing of insanity. They were therefore presumed to be incompetent and the court should not have permitted them to be sworn as witnesses until satisfied by preliminary examination that they were competent. The purpose of this preliminary examination is two-fold, to show that the witness possesses sufficient intelligence to observe and narrate events accurately, and also that he understands and appreciates the significance of an oath. I fear that the defendants were not accorded the full measure of their legal rights; but, as the record is presented, we cannot interfere with the judgment. The transcript does not purport to contain all the evidence. We must, therefore, assume that the guilt of defendants was so clearly established by competent and credible testimony that none of the alleged errors could have prejudicially affected the result. I, therefore, concur in the judgment.

BURNETT, J.

I concur in the judgment and in the foregoing observations by Justice Burnett.

HART, J.