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procuring one, the alleged refusal is imma- means adequate for that purpose; but he terial.

said that he made the purchase on behalf But we do not think that the evidence of a "syndicate,” and expected to obtain the tends to show that Blythe repudiated the necessary funds from that syndicate. His contract, or even refused to sell the stock as testimony, taken most favorably for plainhe had agreed. The only testimony on this tiff, was that he had never had the money subject is that of plaintiff's witness Ledden, in his hands, that no persons had ever actual. who testified that he took to Blythe a letterly subscribed the money, but that, through from plaintiff stating that plaintiff had sold that syndicate, he “would have been preparthe stock in London for $500,000, and that ed" when the time arrived “to complete the the money was ready in London to pay for purchase,”—“to find the money required." it; that Blythe thereupon became angry, and That testimony amounted to nothing more "said he would not sell it." The witness ask. than a statement of his belief that persons ed “if he was going to carry out the condi- not bound by contract to do so would have tions of the letter, and he said, 'No.' He said advanced the money; and it is clearly not that the amount was too small, or something such evidence as, under section 1835, Code to that effect; that he had to divide up the Civ. Proc., would justify the jury in finding amount that he was to get with several par- that he had the ability to pay. Moreover, ties; and that he would not carry out the

he testified that he was unable to remember condition. He said that perhaps other ar- the name of a single one of the persons formrangements could be made that would be ing the syndicate, and that, since the comsatisfactory to him, or something to that ef- mencement of this action, he had destroyed fect.” The witness remembered nothing fur- all memoranda by which he could have rether as to the contents of the letter, though freshed his memory on the subject. Under he thought it contained something more. The these circumstances, his testimony was clear. only other testimony concerning the contents ly not "satisfactory," within the meaning of of the letter was that of the plaintiff and section 1835, and should not have been subthe witness Wand, neither of whom could mitted to the jury. There are many other state anything further concerning it. It is serious objections urged against the evidence evident that that testimony, if believed, prov- | given for plaintiff, which it is not necessary ed nothing, unless in connection with the to consider, as those already mentioned are contents of the letter `referred to. If that sufficient for the purposes of this appeal. letter contained nothing beyond the bare It is enough to say that the evidence was not statement testified to by the witnesses, sufficient to support plaintiff's case on any Blythe's language amounted to nothing, for material issue. there was nothing for him to act upon. If, 3. The court, at the request, of plaintiff, on the other hand, it contained a statement of instructed the jury that "evidence of the the conditions of the sale, as the witness Led- oral admissions of a party ought to be reden seems to imply, then, without knowing ceived with caution by the jury.” This inwhat were the conditions so stated, it is im-struction was evidently predicated upon cer. possible to determine whether Blythe's re- tain testimony introduced by defendant, fusal was justified or not. It appears by the tending to prove oral admissions by plaintestimony of plaintiff's witness Borgen, the tiff that he had never found a purchaser for supposed purchaser, that the money was the stock. It is in the precise language of to be payable in London. If the letter so subdivision 4, 8 2061, Code Civ. Proc., which stated, then Blythe was justified in refusing authorizes the court to give it "on all propto accept the proposition; for, under his con- er occasions.” Counsel for defendant contract, he was entitled to payment in San | tend that, under the decision in Kauffman Francisco. It should be observed that, on v. Maier, 94 Cal. 269, 282, 29 Pac. 481, it the former trial, the witness Ledden testi- was a charge with respect to a matter of fied that Blythe said that “if the money fact, and therefore forbidden by the constiwas in hand he would not accept it”; and tution. It is not necessary to consider that we considered that such a statement would question in this case, for we are of opinion excuse the plaintiff from sending or tender- that this was not a “proper occasion,” withing the money to him at San Francisco. But in the meaning of that section, for the givthe witness did not so testify on the last ing of such an instruction. The plaintiff's trial, and there is now nothing in the tes- case depended entirely upon oral testimony timony to show that Blythe in any way re- as to transactions with the deceased Blythe. pudiated his contract,-certainly nothing That testimony was of such a nature as to tending to show any act on his part which make direct contradiction absolutely imposcould have prevented plaintiff from procur- sible. No documents of any kind were proing a purchaser. The evidence is also insuf-duced to substantiate it, nor was it corroboficient to show that the supposed purchaser rated by any independent fact. Plaintiff's had the ability to purchase the stock at the claim was never heard of until more than a price named. The only evidence on that year after the appointment of an adminispoint is his own testimony. He did not trator on Blythe's estate, not even by parclaim that he himself had any property or ties who were jointly interested in the al. leged commissions. Under such circumstan- recovery. At that time the matter under ces, the only kind of evidence which defend- consideration was the validity of an instrucant could possibly obtain was testimony of tion, and the sufficiency of the evidence only the kind referred to in this instruction. That incidentally a rose upon the discussion of that testimony was of at least as high a char- question. While in a certain sense the lanacter as that produced by plaintiff. Indeed, guage of the court is not obiter, still it is plaintiff's whole case rested upon the un- closely allied to it. The sufficiency of the evi. supported testimony of a single witness as dence was not the direct question with which to a conversation between Blythe and him- the court was dealing, and it is entirely apself when they were alone. No weaker kind parent from the context that the court, in of testimony could be produced; and it was making the statement quoted, never intendclearly not a proper occasion for the court, ed to so pass upon the sufficiency of plainunder such circumstances, to give to the tiff's evidence as to forever foreclose a trial jury an instruction in disparagement of the court, or this court, from declaring it intestimony by which alone defendant could sufficient to establish a prima facie case. If meet the testimony adduced by plaintiff. the court did not intend to make any law of

4. The court erred in sustaining plaintiff's that kind for the case, to hold that such law objections to the questions propounded by was made would be treating the doctrine defendant to the witness Hart. It was com- here invoked most kindly and liberally, petent for defendant to show that the stock while, upon the contrary, it has been recwas kept in the hands of a third person for ognized always and everywhere as a harsh delivery to any purchaser whom plaintiff doctrine, and one which has nothing to commight procure under the contract. That mend it to the favor of courts. I concur in would be a circumstance tending to contra- the judgment. dict the claim that Blythe had repudiated his contract. While it is true that defendant BEATTY, C. J., and HARRISON, J., becould not be permitted to prove the mere ing disqualified, took no part in the decision declarations of the deceased in his own of the foregoing cause. favor, he was certainly entitled to prove his acts under the contract, and any declaration made at the time, and characterizing

(106 Cal. 48) those acts as a part of the res gestae. Sumu PEOPLE v. SCHMITT. (No. 21,173.) other points are urged by appellant, some

(Supreme Court of California. Jan. 31, 1895.) of which are sufficiently covered by what

HOMICIDE-INSANITY — PRESUMPTION OF CONTINUhas been said, and others will not probably

ANCE-EVIDENCE. arise on another trial. The appeal from the 1. On a prosecution for murder, the defense judgment, having been taken more than one did not claim that defendant was insane at the year after the entry of judgment, is dis

trial, and objected to a statement by the prose

cution that the jury must find that defendant missed. The order denying a new trial is "is insane,” in order to acquit. The court inreversed, and the cause remanded for new structed tha jury should consider all detrial.

fendant's acts "at the time of, before, and subsequent to the alleged commission of the of.

fense," but should consider him as sane at the We concur: McFARLAND, J.; FITZGER- time of the trial. Held, that such instruction ALD, J.

was not error, as taking from the jury the pow

er to consider the question of his insanity at GAROUTTE, J. (concurring). The evi

the time of the trial as bearing on his sanity

at the time the offense was committed. dence in the record is wholly insufficient to

2. A statement by the prosecuting attorney support plaintiff's complaint. Of the many that the court will instruct that, to acquit, the elements of the case absolutely necessary to

jury must find that defendant "is insane," is

not ground for reversal, where, on objection be proven in order to establish a cause of

being taken, the court, in its charge, stated that action, hardly one is sufficiently made out. the issue was as to defendant's sanity at the Yet plaintiff has recovered a judgment for time of the commission of the offense.

3. Where a witness has testified that before more than $100,000 upon this evidence, and

the homicide he considered defendant insane, insists that the validity of such judgment be it is not error to refuse to permit him to testify ratified by this court. To obviate the results that he had told deceased that defendant was which would necessarily flow from this

insane.

4. Statements by deceased that she considdearth of evidence, to wit, a reversal of the

ered defendant insane, being merely hearsay, judgment, the principle of the law of the are inadmissible. case is invoked, and a former decision of this

5. A ruling of the trial court that a witness court relied upon, wherein it is said that “the

was qualified to express his opinion as to de

fendant's sanity will not be held erroneous, un. plaintiff produced testimony tending to prove less it clearly appears that the decision was his side of the case.” Citing the testimony, Mattingly v. Roach, 81 Cal. 207, 23 Pac. 1117. •defendant was insane at a period before the

6. An instruction that, if the jury find that Conceding the evidence to be the same upon

homicide, such insanity is presumed to have both appeals, still I do not think this declara- continued up to the time of the homicide, protion of the court should be held equivalent vided the exciting cause of such insanity also

continued, is properly refused. to a declaration that plaintiff by the evi

7. In an instruction, the use of the word dence established a prima facie case for a "delusion" is not ground for reversal, where the

wrong.

new

error.

evidence, and the connection in which it was consider "all his acts and conduct at the used, show clearly that by it was intended in

time of, before, and subsequent to the alsanity on a particular subject. 8. When the court has once clearly instruct

leged commission of the offense, as shown by ed as to the degrees of the crime charged, it is the evidence." No issue as to his sanity at not necessary to repeat such instruction in the time of the trial had been submitted to every connection in which reference is made to

the jury under section 1368 of the Penal the degrees of crime.

9. The appellate court cannot consider the Code; and hence, for the purposes of the insanity of defendant, disclosed subsequent to trial, he was to be considered sane, the issue the trial, as ground for reversing the judg. being whether he was sane at the time he ment.

committed the homicide. This instruction Commissioners' decision. In bank. Appeal

was given by the court of its own motion, from superior court, Sutter county; E. A.

and though no suggestion had been made Davis, Judge.

on behalf of the defendant that he was then Peter Schmitt. was convicted of murder, insane, or that it was improper to proceed and appeals. Affirmed.

with the trial for that reason, it was proper, E. A. Forbes and W. H. Carlin, for appel- | in view of a statement made to the jury by lant. The Attorney General, for the People. the district attorney in the course of his ar

gument to the jury, and which is also speciHAYNES, C. Appellant was charged with fied as one of the errors for which a reversal the murder of Mrs. Charlotte Gardemeyer, is sought. The language used by the disalleged to have been committed November trict attorney was this: "You will be in17, 1893, and was found guilty by the jury structed by the court that you must find by of murder in the first degree, with the pen- a preponderance of the testimony that the alty of imprisonment for life. The fact that defendant is insane before you can acquit defendant committed the homicide was not him." Counsel for defendant at once obcontroverted, the defense being that he was jected and excepted to the statement, and insane; and this appeal is from the judg- | asked the court to instruct the jury then that ment, and from an order denying a the statement was not law, to which the trial. The motion for a new trial is based court replied that he would instruct the jury upon alleged errors in the admission and ex- at the proper time. The mistake of the dis. clusion of evidence, and upon instructions trict attorney was thus corrected by the given and refused, and upon a statement of court; and, in view of the correction, it canlaw made to the jury by the district attorney not be held that the jury were misled by his during his argument. The errors specified in the record are very numerous. Appel- B. W. H. Harstromberg, a brother of the lant's brief discusses only a few of them, and deceased, was called by the defendant, and these we shall first notice:

testified to his acquaintance with the defend1. That the court erred in giving instruc- ant; the change in his demeanor from the tion No. 26, the material part of which is as time he first knew him; that the last time follows: "And, as I am about to conclude he saw him was about two years prior to my instructions to you, it may aid you if I the homicide; and that he (the witness) then give a brief summary of the principal mat- considered the defendant insane. The witters you must consider and decide. You are ness was then asked by counsel for defendnot to consider whether or not the defendant ant whether he ever had any talk with Mrs. is insane at the present time, but you are to Gardemeyer regarding the sanity or insanity consider him as now sane. A person char- of the defendant. He answered that he had, ged with crime cannot be legally tried for and was asked to state what it was. He such crime unless he be sane at the time of commenced to answer, and was stopped by the trial. The defendant has presented the the court. Counsel for defendant then ofissue to you that, at the very time of the al- fered to prove by the witness “that at differleged commission of the homicide, he was ent times he went to Mrs. Gardemeyer, and insane. As I have already told you, the bur- told her, to look out for Peter Schmitt; that den of proving his insanity at that time rests he was crazy, and liable to become violent, upon him, because the law presumes he was and to look out for him,--and that she anthen

*." Appellant contends swered that she knew he was crazy, but she that this instruction invaded the province of could handle him." An objection to the ofthe jury, and was equivalent to a finding of fer was sustained, and defendant excepted. the fact that the defendant was then sane, I see no error in the ruling. The witness and took from the jury the power to consider had already testified what his opinion was. the question of the insanity of the defend- If he had been permitted to testify that he ant at that time as evidence tending to show had expressed that opinion to his sister two that he was insane when he committed the years before the homicide, it could not homicide. I think the instruction could not strengthen his testimony, since whether he have been so understood. No suggestion entertained such opinion at that time, or had was made during the trial that he was then expressed it, must each have stood upon his insane, nor any witnesses examined as to his testimony alone; and, as to what his sister sanity at that time. The court had before said, it was mere hearsay, and besides, not that instructed the jury thut they were to being accompanied by a statement of the facts upon which she based that opinion, the trary be proved, down to the specific time. opinion itself could not be received. What It is otherwise, however, when the proof is nas here been said also disposes of the er- of temporary or spasmodic mania.'” The rors assigned upon the questions put to Swan language used by the court, above quoted, Segerstrand, viz.: “Do you know whether is subject to criticism so far as it refers to or not Mrs. Gardemeyer knew that defend-insanity "produced by a temporary cause" ant was crazy?” and “Did Mrs. Gardemeyer or "transient cause,” since permanent or ever tell you that the old fool was crazy, long-continued insanity may result from a but that she could handle him?"

sane.

transient or temporary cause, while a conEllington, a witness called by the prosecu- tinuing cause may produce only temporary tion in rebuttal, was permitted, against de- insanity. The point of the opinion, howfendant's objection, to testify that in his ever, is right. To establish the basis of a opinion the defendant was sane. Whether presumption that insanity, once shown to the witness had such acquaintance with the have existed, continues to exist, it must apdefendant, and opportunity of observing him, pear to have been of such duration and charas to qualify him to express an opinion as acter as to indicate the probability of its to defendant's sanity, was a question neces- continuance, and not simply the possibility sarily to be determined by the trial court, or even probability of its recurrence, as in the first instance; and, while this court would be the case if its existence appeared to has the unquestioned right to review the rul- be temporary. Because the request was not ing in that regard, it will not be held er: qualified as above indicated, it was properly roneous upon a mere difference of opinion, refused. See, also, People v. Smith, 57 Cal. but it must clearly appear that his decision 130. upon the point was wrong. Something must Exceptions were also taken to the twentybe conceded to the intelligence of the wit- second, twenty-third, and twenty-fourth inness, and his habits of observation, and of structions given at the request of the prosethese qualifications the trial court can bet- cution. These instructions introduce the ter judge. People v. Pico, 62 Cal. 50. Up- word "delusion,” but the connection in which on the facts stated by the witness, his opin- it is used shows that it was intended as an ion was entitled to some consideration, as equivalent expression for "partial insanity." it tended in some measure to show the men- The twenty-second instruction starts with tal condition of the defendant down to a the expression, "When partial insanity is retime shortly before the homicide, the weight lied upon," etc.; the twenty-third uses the to be given it by the jury being controlled by expression, "partial insanity or delusion"; the facts upon which his opinion was based. and the twenty-fourth, "in cases of partial

It is also contended that the court erred delusion.” It is also clear that by “partial in refusing to give the following instruction insanity” is there meant insanity upon a requested by the defendant: “I further in- particular subject, or as to a particular matstruct you that, if you find from the evi. ter. The twenty-third instruction explains dence in this case that the defendant was this meaning very clearly, as follows: "In insane at a period before the homicide in cases of partial insanity or delusion as to question, then and in that case his insanity certain facts and matters, and the accused, is presumed to have continued up to the time as to other facts and matters, is sane," etc. of the homicide, provided the exciting cause If the defendant was insane, it was not a of such insanity also existed up to and at case of insane delusion, but the cause was an the time of the homicide." This instruction existing fact. There was evidence, however, was properly refused. In People v. Francis, tending to show that the defendant had 38 Cal. 183, there is an instruction identical "spells" when he did not appear or act as he with the one under consideration, if the lat- did on other occasions; and, as appeared ter clause, commencing with the word "pro- from the testimony of the witness Ellingvided,” had been omitted. The court there ton, that when engaged in assisting him in said: “If the term 'insanity,' as employed repairing the pump, on the several occasions in these instructions, is to be construed as mentioned, he acted intelligently, and he conreferring to a general unsoundness of the sidered him perfectly sane. The use of the mind, and not to an aberration of a tem- word "delusion," while it had no proper apporary nature, proceeding from some tran- plication to the facts of the case, could not sient cause, then the instructions correctly have misled the jury, since the evidence. stated the law. If it be shown that the in- and the connection in which the word was tellectual faculties were so impaired as to used, made clear the sense in which it was produce a general, habitual derangement of used. them, not traceable to some temporary cause, The exception to the twenty-first instructhe law would presume the mind to have tion is not well taken. It is true this incontinued in the same condition until the struction did not refer to the degrees of the contrary was shown. In Whart. Cr. Law, crime charged in the information; but the $ 55, the rule is thus stated: “When habitual court explicitly instructed the jury upon that insanity is proved to have existed prior to subject, and defined the different degrees of the commission of an act, it will be pre- murder, and expressly informed them that sumed to have continued, unless the con- the defendant might be convicted of either,

should have been acquitted; but

it is equent commissioners' decision. In bank. Appeal

or—if, in their judgment, the facts warranted it-of manslaughter. It is not required WILLIAMS v. CUNEO. (No. 15,747.) that the court shall repeat such instruction

(Supreme Court of California. Feb. 7, 1895.) in every possible connection in which refer

Department 1. Appeal from superior court, ence could be made to the degrees of the of- city and county of San Francisco; James M. fense. . If once clearly and expressly given, Troutt, Judge. it is sufficient.

Action by one Williams against one Cuneo. No other points are discussed in appellant's

Plaintiff had judgment, and defendant appeals.

Affirmed. brief, though other errors are specified in the

Horace W. Philbrook, for appellant. J. C. record. A careful examination of them, how- Bates, for respondent. ever, discloses none requiring a reversal of the judgment or order appealed from. The

PER CURIAM. Upon the authority of

Fletcher v. Prather, 102 Cal. 413, 36 Pac. 658, facts disclosed by the evidence must appeal

White v. Harris, 103 Cal. 528, 37 Pac. 502, strongly to the sympathies of any one who and Byrne v. Luning Co. (Cal.) 38 Pac. 454, reads the record, and justify the earnestness the judgment and order appealed from are af

firmed. and evident sincerity with which the learned counsel for appellant have presented his case. The statement in appellant's opening

(106 Cal. 89) brief that the condition and mental state of PEOPLE v. WEST. (No. 21,162.) the defendant is “daily nearing the hopeless (Supreme Court of California. Feb. 12, 1895.) shores of idiocy” is not noticed in respond- PRIVILEGED COMMUNICATIONS

PHYSICIAN AND ent's brief; and, in appellant's closing brief,

PATIENT-CRIMINAL Cases. counsel say: "As matter of fact, at the very

1. Under Code Civ. Proc. § 1881, subsec. 4, time of the trial the defendant was rapidly

limiting the privilege of a physician to civil

cases, a physician may testify as to communiapproaching dementia, and at the present cations by a patient in criminal cases. time lies in the county jail of Sutter county, 2. Defendant, a physician, accused of hav. under sentence, a gibbering and demented

ing caused the death of a patient by procuring

for her a miscarriage by unlawful means, called idiot.” Assuming this to be true, it is prob

as a witness another physician, to prove that able that the defendant was not responsible deceased applied to him before she did to the at the time of the homicide, and, if so,

defendant, and what her condition was at that

time. Held an error to exclude his testimony. ly true that, notwithstanding his present condition, the mental disease may not have

from superior court, city and county of San. so far progressed at that time as to relieve

Francisco; William T. Wallace, Judge. him from the fearful responsibility of his

Eugene F. West was charged with the acts. This court, however, cannot act upon

murder of one Addie Regent Gilmour. From the evidence furnished by his present condi

a judgment of conviction, and an order detion, and upon that ground reverse a judg

nying motion for a new trial, defendant apment otherwise legal. The humanity of the

peals. Reversed. law has, however, provided for such cases. A J. N. E. Wilson, Myer Jacobs, and Robert person, though adjudged to punishment, can. Ferral, for appellant. Atty. Gen. Hart, for not be "punished for a public offense while the People. insane." Pen. Code, $ 1,367. His conviction and sentence do not exclude him from BELCHER, C. The defendant was charthe state insane asylum, and, beyond that, ged with the murder of one Addie Regent executive clemency has power to relieve even Gilmour, and found guilty of murder in the where the courts cannot. I advise that the second degree. The judgment was that he judgment and order appealed from be af- be punished by imprisonment in the state firmed.

prison for the term of 25 years, from which

judgment, and an order denying his motion We concur: SEARLS, C.; VANCLIEF, C. for a new trial, he appeals. It is contended

for appellant that the court committed sevPER CURIAM. For the reasons given in

eral errors of law in its rulings as to the the foregoing opinion, the judgment and or- qualification of certain parties to sit as jurors der appealed from are affirmed.

in the case, and in the admission and exclusion of evidence, but, in view of the con

clusion reached, only one of these alleged (105 Cal. 572)

errors need be considered.

The theory of the prosecution was that the MCLAUGHLIN v. MENOTTI. (No. 15,299.)

deceased, Miss Gilmour, was pregnant, and (Supreme Court of California. Feb. 6, 1895.)

went to the defendant, who was a physician On application for rehearing. Denied. in San Francisco, to have him procure for For former report, see 38 Pac. 973.

her a miscarriage, and that defendant by

some unlawful means did procure the misPER CURIAM. The judgment herein is carriage, and thereby cause her death, a few modified by the addition thereto of the fol- | days later. The theory of the defense, on lowing words: “not exceeding the amount the other hand, was that the miscarriage vas stated in the complaint.” Rehearing denied. effected by some one else before the de:

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