People v. Wells

CARTER, J.

I dissent.

I agree with the holding in the majority opinion that the *360 proffered evidence of defendant’s mental condition was admissible and that it was error.to exclude it. I cannot, however, assent to the limitation placed upon evidence of that character to that which falls short of establishing legal insanity, nor to the holding that the exclusion of the evidence was not prejudicial error.

Turning first to the limitation placed upon evidence of the mental condition of the defendant bearing upon the presence or absence of specific intent, malice, premeditation and the like, it is my understanding that the majority opinion holds that if the evidence offered shows a mental condition amounting to total insanity or legal insanity—the inability to distinguish between right and wrong, then it is not admissible at the trial of the issue raised by the plea of not guilty. For illustration, it is said: “Thus, if the proffered evidence tends to show not merely that he did or did not, but rather that because of legal insanity he could not, entertain the specific intent or other essential mental state, then that evidence is inadmissible under the not guilty plea and is admissible only on the trial on the plea of not guilty by reason of insanity.” In my opinion that rule is unsound, wholly impractical to apply and will lead not only to absurd results but will tend to encourage perjury and the juggling of words by expert witnesses on the question of defendant’s mental condition. It is unsound because it violates the fundamental principle that “the greater contains the less.” (Civ. Code, § 3536.) If the accused’s mentality at the time of the commission of the unlawful act was such that he could not distinguish between right and wrong—-had no reasoning capacity at all, he could not have had a specific intent, premeditated or acted maliciously. Thus evidence of that condition would establish a total lack of intent, premeditation or malice-elements, the proof of which, is indispensable to establish guilt. It is strange reasoning to say that you may prove a partial mental quirk or disability to refute the presence of intent but cannot give evidence of a total mental aberration. That is equivalent to saying that blindness in one eye will absolve a person from guilt, but that two sightless eyes will constitute no defense. Is this not a paradoxical absurdity?

The impracticability of the application of the rule is manifest. I have no doubt that trial judges, counsel and expert witnesses will be completely bewildered when they endeavor, each in his sphere, to apply the rule—to attempt to present and give evidence in a trial under the plea of not guilty.. It is to *361 be noted from the foregoing quotation from the majority opinion that it is not only evidence of insanity that is not admissible but also any evidence tending to show that condition is likewise barred. Thus any evidence that might show a symptom of insanity could not be given. In the instant case it may be that defendant’s condition—“a state of tension”—is an indication of insanity. I do not know whether it is or not. I am not a psychiatrist. I doubt if counsel or the trial judge will find themselves in any better position. Suppose defendant’s expert witness testifies on direct examination that defendant’s condition was such that he could not pursue one thought for any period of time beyond a second. Clearly that testimony would be admissible to prove lack of premeditation, deliberation or malice. If, on cross-examination by the prosecution, the witness states that defendant is insane—cannot distinguish between right and wrong, should a motion to strike his testimony in chief be granted on the ground that the evidence showed a mind too far deranged to form an intent or to premeditate or deliberate? Under the theory of the majority the motion should be granted. Suppose that evidence of a mental condition which concededly would be admissible under that theory was adduced by defendant but the prosecution produced evidence that such condition undoubtedly established defendant as hopelessly insane. Would defendant’s evidence be stricken or would the jury be instructed that they could not consider it if they found that defendant was insane ? But they could not find him insane because, in the not guilty stage of the trial, defendant is presumed to be sane. Surely the jury would be justified in saying to themselves: “What strange things these judges, lawyers and laws are.”

I have assumed in the foregoing discussion that the rule stated in the majority opinion could be applied. At least an endeavor would be made to apply it, but its use is so impossible that it could not be followed, thus leaving nothing of it but words. Counsel for the defense would be urgently tempted to frame their questions to defendant’s expert witnesses in such a' fashion that the answers would show any mental condition short of insanity and to coach the witness to beware of pronouncing the defendant insane. Rather than putting a question and receiving an answer that the defendant could not distinguish between right and wrong, the elicited testimony would state that with his mental condition, he did not have a specific intent, nor did he premeditate or deliberate the commission of the crime, all of which would encourage *362 concealment and dishonesty on the part of the witness. Moreover, the trial court not being able to differentiate between evidence tending to show insanity, and that which did not go that far, would be inclined to let in any proffered testimony thus avoiding the possibility of reversal on appeal.

In my opinion there can be no doubt that the error in excluding the evidence of mental condition was prejudicial to defendant. The majority concedes that the “crucial factual question” was whether the act was done with malice aforethought and that “the materiality of this evidence in defendant’s case is patent.” The only evidence of malice was the inference that might be drawn from the conduct of defendant on other occasions. It certainly was not so overwhelming that it may be said, as does the majority, that it established malice as a matter of law. On the other hand the evidence offered by defendant was direct and forceful and from qualified witnesses who examined defendant at the time the offense was committed. Nothing could have been more pertinent. To say that the result would not have been different is impossible. It is equivalent to barring a defendant from offering any evidence on a defense such as insanity or self-defense, which would clearly be prejudicial.

I would, therefore, reverse the judgment and remand the case for a new trial.

Appellant’s petition for a rehearing was denied February 21, 1949. Edmonds, J., Carter, J., and Traynor, J., voted for a rehearing.