Full opinion text
SEAWELL, J. The defendant was accused by an information filed against him in the Superior Court of the County of Modoc, this state, by the district attorney of said county, with having, on March 25, 1937, in said county, killed one Claude L. McCracken, a human being, with malice aforethought. The legal sufficiency of the information charging murder is not questioned. Upon arraignment he entered two pleas, not guilty, and not guilty by reason of insanity. The jury returned a verdict of guilty as charged in the information with respect to the plea of not guilty, which carried with it the imposition of the death penalty; as to the plea of not guilty by reason of insanity, the jury found the defendant to be sane at the time he committed the homicide. Judgment upon the verdict was pronounced imposing the death penalty and defendant has appealed from said judgment and from the orders denying his motion for a new trial. There is no question as to the commission of the homicide by the defendant. The evidence shows without contradiction that the defendant drove in his automobile to the McCracken residence at about 7 o’clock in the evening of March 25, 1937, parked his automobile, walked to the front door and entered without giving an alarm of his approach, and passed through the front room into the kitchen, holding in his hand an automatic revolver of the target practice model, where Claude L. McCracken and two ladies, Donna Conwell, a business associate, and Evelyn Cien, a young lady employed in the McCracken household, were seated about a small round dining table listening to a radio program after having finished their evening meal. No word was spoken or vocal expression was made by the defendant at any time except possibly a short inarticulate sound resembling “hi”, which Donna Conwell, one of the women seated at the table, thought he uttered in response to her salutation to him as he crossed the threshold into the kitchen. He immediately opened fire at the deceased who was seated but a few feet from him. Neither of the women was certain as to the exact number of shots he fired. One or more were fired over and near the head of Donna Conwell. Mr. McCracken, in the course of the firing, arose from his chair and made his way to the kitchen sink, where he rapidly weakened from the effects of the bullets which had entered his body. He was soon taken to a hospital attended by surgeons. An operation was performed in an attempt to save his life, but he expired approximately three and one-half hours after receiving said bullet wounds from shock caused thereby. His body disclosed five distinct bullet wounds, one of which apparently passed through his arm before entering the body. The four body wounds were in the regions of the lungs, heart and liver. The intestines were severed in several places by the course of the bullets, which, in one or two cases, passed entirely through the body. The firing was done with unerring aim. No question is made that the bullet wounds were not the proximate cause of death. Two young men from adjoining premises saw the defendant park his car and enter the McCracken home. The defendant left the scene of the tragedy much as he went upon it, without speaking to anyone, and drove to the residence of Charley Chapman, knocked at the door, and as it was opened he pushed the gun toward him and said, “■Shoot me, I have shot McCracken.” He made inquiry for “Aunty” Hazel-ton who had some years before occupied the premises. Mr. Chapman, who had known the defendant since his boyhood, invited him in the house. The defendant told him he had shot McCracken and after talking a while he began to cry. Chapman said to him that he would have to call the sheriff and the defendant said: “All right, call the sheriff.” This was done. Chapman further testified that he asked the defendant why he had come to his house and he said: “I used to come here when a boy, because Mrs. Hazelton lived there.” The witness said he “argued” with him because he was doubtful as to whether he had shot McCracken, but the defendant removed his doubt by saying: “I shot him all right.” Chapman then said to him, “Why did you shoot him, Harry?” He replied, “That son of a bitch insulted my folks.” Deputy Sheriff George Kelley arrived presently and the defendant in answer to questions again assured them that he had shot McCracken. The defendant was properly dressed and was wearing an overcoat but he was “all over mud, he had fallen down”. It had been raining, the witness added. Continuing, he said the defendant was “perspiring and his eyes were wild”. He described his speech as being “a little thick, but he talked all right”. George M. Kelley, a deputy sheriff, in answer to a call, arrived at the Chapman home a short time after the sheriff’s office ■ was notified by Mr. Chapman of the shooting. He found the defendant seated in a chair. He had seen the defendant twice before on the day of the homicide, once at 10 o’clock in the morning at a barber shop and once in the afternoon in a building he was unable to recall. Mr. Kelley said he was too excited to remember all that was said but he recalled the defendant said he had shot McCracken at the latter’s home. He said his car was in the neighborhood. Deputy Sheriff George Kelley then asked him how the gun might be unloaded and the defendant said he didn’t know anything about it. Mr. Kelley asked him how he was able to shoot if he didn’t know how to unload it and the defendant replied that he “pulled the trigger”. He thought he had shot McCracken three times. Asked why he had shot the deceased he said: “I am sorry, George.” On the way from Chapman’s house to the sheriff’s office the defendant said: “There is some things people can’t stand, George. I just stood more than I could stand.” In this connection he said something about his mother and baby. Kelley called up the hospital with the consent of the defendant and inquired the extent of McCracken’s injuries and notified the defendant’s family. The defendant was given a bed in the jail and slept well until he was awakened about 6 o’clock the following morning. Sheriff John C. Sharp testified to finding a broken box of long rifle cartridges, low speed, in the defendant’s overcoat pocket, one loaded shell in the barrel and two or three in the magazine of the pistol. Five empty shells were found in the room where the shooting was done. At the time of said homicide, the defendant was twenty-seven years of age. He was married in 1931, and a son was born as the issue of his marriage, January 5, 1935. The defendant, his wife and child had, for a period, resided across the street from the deceased during the continuance of their acrimonious business and newspaper rivalry. He had resided with his parents at Alturas, Modoc County, from infancy to the time of his marriage. He had attended the grammar and high schools of Alturas. A special course in business at Oakland, California, seems to have concluded his scholastic training. R. A.. French, and Mrs. Gertrude P. French, parents of the defendant, were, and had been since 1910, publishers and proprietors of the Alturas Plaindealer, a newspaper printed and circulated in Modoc County. R. A. French was the business manager, and his wife, Gertrude French, was the editor of said newspaper. During and since his school days, the defendant was continuously associated with his parents in the publication of said journal. He had worked in every department of the Plaindealer, including the mechanical, news and business departments. At one time he was the advertising manager. In 1933 the defendant was appointed a minute clerk of the state senate and he and his wife spent several months at Sacramento. Thereafter he resumed his connection with the Plaindealer. On September 1, 1933, he was appointed by the state board of equalization a sales tax collector, auditor and enforcement officer in the tax sales division which included Modoc and a portion of Lassen County. He was holding this position at the time he committed the homicide of which he stands convicted. At all times he has maintained general headquarters at the Plaindealer office. Being a long established journal, the Plaindealer doubtless had more or less prestige in the business and political affairs of the county of Modoc. It would seem that it exclusively occupied the field of journalism until the Modoc County Times, some years later, made its appearance as a competitor. In 1934, and prior thereto, Mr. McCracken was in the employ of the Modoc County Times. The Plaindealer, in December, 1934, absorbed the Modoc County Times, which was then published and owned by C. D. Fitzpatrick and edited by Mr. McCracken, and annexed to the name “Alturas Plaindealer”, the name “Modoc County Times”. Adopting the practice of counsel, we will continue to refer to said newspaper merely as “Plaindealer”. Mr. McCracken then being without employment, began the publication of the Modoc Mail, which was first printed at Lakeview, Oregon, situated a short distance across the state line, and circulated in Modoc County. Publication of the Modoc Mail was suspended in April, 1935, and resumed by Mr. McCracken in August, 1936, at Alturas, Modoc County, under its former name. In December of that year Donna Conwell, referred to herein as seated at the dining table in company with Evelyn Olen and McCracken at the time defendant fired said shots, purchased a partnership interest in the Modoc Mail and her name was announced in the Mail as one of its owners and publishers. The paper was published bi-weekly and in form contained eight pages, 13x8% inches in dimension, and was a mimeographie print. It purportedly printed the local and general news and carried display advertisements in the form and fashion, but lacking the mechanical clearness and attractiveness, which characterizes the products of the modern printing press. Mr. Mc-Cracken and Donna Conwell were associated in the publication of the Modoc Mail to the time of the former’s death. It is one of the contentions of counsel that the defendant at the time he committed the homicide was in a “muddled and deranged condition of mind and the emotions controlled his actions, and that he acted self-conscious only of a moral justification of his act”. The obvious fallacy of the proposition is that it would not have constituted a defense to a charge of murder under the law of this state even if the suggested psychological phenomena had in fact existed.. It was necessary to go further. The burden was upon the defendant to prove by a preponderance of the evidence that he was insane in the sense that he was unable to appreciate the nature and the quality of his act and did not know it was wrong to commit it. No such contention is tenable under the evidence. It is conclusively refuted by the defendant’s own acknowledgment made to his neighbor but a few minutes after he had shot McCracken that he had killed him and he handed the neighbor the gun used by him and requested the neighbor to shoot him. In so doing he was either moved by the consciousness that he had committed an act which his conscience did not justify or else he was conscious that he had committed a wrongful and forbidden act which was punishable by law. No alternative is possible. Moreover, it has long been the settled law of this state that neither emotional, moral nor partial insanity nor insane delusion nor hallucination, nor the irresistible impulse theory (the accused being conscious as to the nature and quality of his act and that it was wrongful and punishable by law), affords grounds in this state as the basis of a defense or as an excuse for the commission of a homicide. (People v. Nihell, 144 Cal. 200 [77 Pac. 916]; People v. Kerrigan, 73 Cal. 222 [14 Pac. 849]; People v. Hurtado, 63 Cal. 288; People v. Worthington, 105 Cal. 166 [38 Pac. 689]; People v. Harris, 169 Cal. 53 [145 Pac. 520]; People v. Ward, 105 Cal. 335 [38 Pac. 945]; People v. Trebilcox, 149 Cal. 307 [86 Pac. 684]; People v. Ebanks, 117 Cal. 652 [49 Pac. 1049, 40 L. R. A. 269]; People v. Willard, 150 Cal. 543 [89 Pac. 124]; People v. Troche, 206 Cal. 35, 46 [273 Pac. 767].) Appellant’s basic defense to the act of killing, and particularly the contention that the case was not one in which the extreme penalty of the law should be imposed, is stated in condensed form in the following paragraph of his brief: “It was, as claimed by the defense, the long continued and persistent system of libelous insult and personal abuse of the defendant’s family, as well as of himself, which produced and brought about such a mental condition 'of the defendant, that he was incapable of the cool deliberation and intent essential to constitute murder in the first degree, or any degree. Certainly not that cool, deliberate premeditation and complete consciousness of the wrongfulness of his act essential to justify a jury in rendering a verdict of murder of the first degree without fixing a penalty of life imprisonment.” In addition to this major contention in the case, numerous assignments of error are urged as grounds for reversal, most of them arising on questions of law as to the admissibility of evidence offered on trial of the general issue, not guilty. These many assignments relate to offers of newspaper articles printed either in the Times or Mail (referred to in abbreviated form) which date back to 1934 and intermittently appeared to the day before the homicide. It cannot be claimed that any of the articles published during the entire period of controversy contained any threats to do bodily harm to the defendant, or indicated that the deceased was a dangerous man, or had in any way placed the life or limb of the defendant in jeopardy, nor were they in any sense a part of the res gestae. The only grounds upon which said articles could have been admissible at all on the plea of not guilty would have been on the theo^r that they contained threats to do the defendant or some member of his family bodily harm and that he acted in real or apparent necessary self-defense in taking the life of the deceased. No claim is made that he so acted and there is not the slightest evidence to support such a claim. The defendant offered no evidence which would tend to justify or excuse the homicide as provided by any of the subdivisions of sections 195, 1,96, 197, 198, Penal Code, or by any other rule applicable to the law of homicide. The defendant was wholly without the presence of the deceased at the time he formed the intent to kill and at all times thereafter until he sought the deceased out at the latter’s home some considerable time after he had formed the intent and purpose to kill his" victim. He executed said purpose without any act or word done or spoken on the part of the deceased. The court would have been entirely within the law if it had ex- ■ eluded all consideration of a verdict of manslaughter by j the jury on the admitted facts of the case. There was no pretense that the act was committed upon “a sudden quarrel or heat of passion” within the letter and meaning of section 192, Penal Code. The claim of the defense, which was the only one available to the accused, was, and is, that the killing was the result of an old feud which finally carried him to the point where he was rendered insane as that term is defined by the law. Malice is indisputably shown by the evidence offered by the defense. The defendant did not take the witness stand on the trial of the general issue, not guilty, but he did testify at the trial on the issue of not guilty by reason of insanity. His testimony was devoted somewhat to describing the feelings which were aroused in him by the published articles which reflected on the members of the French family, and more particularly upon his mother, the editor of the Plaindealer, who he claimed was made the central figure of said newspaper thrusts and castigations. His testimony does not indicate the slightest mental defect but on the contrary it discloses a well coordinated and sound mind. He was positive and accurate in statement and displayed an exceptionally good memory. His powers of expression betray no mental infirmity whatever. In fact, he made no pretense that he was without understanding during his preparation for and commission of the homicide. He offered nothing by way of legal extenuation or justification of his act. That he was angered by said articles and entertained a feeling of long standing hostility toward the deceased was admitted. In his testimony he made no reference whatever to the act of killing. In the main he confined himself to a recital of unfair competitive methods practiced by the deceased and what he denounced as indecent and libelous publications in which his family and his father’s family were defamed, • humiliated and insulted. He expressed extreme dislike and contempt for the deceased and said he had been tempted on several occasions to go to his place of business and assault him with a club, but his mother dissuaded him from executing his purpose. His mother also testified that she had restrained him from committing threatened acts of violence upon the person of the deceased on several occasions. A number of said articles denominated as “provocative” of the homicide by counsel for the defendant, were admitted at the trial of the main issue and practically the contents of all of them in one form or another where materiality was discernible, were called to the attention of the jury on the trial of the issue of insanity. The court, in every instance but one, during the trial of the first issue, instructed the jury that said newspaper articles were not received as supplying grounds upon which the jury might wholly relieve the defendant of the consequences .of his homicidal act, but said articles were submitted for their consideration as an aid in determining whether in the circumstances of the homicide he should, in their judgment, be relieved of the extreme penalty of the law; in other words, the jury was frequently told that it might consider them as affording mitigating circumstances. In the single exception the court included murder of the second degree. Some of the articles of which complaint is made, were rejected on the grounds of remoteness; or lack of certainty as to identity of person; or lack of proof of authorship or on the ground that they were so obscure and vague as to render them unintelligible and thereby immaterial. Appellant assigns those rulings as constituting reversible error. The articles in the main were received in evidence for the limited purpose of reducing the penalty from death to life imprisonment on the first issue, but its purpose was not so limited as to the issue of insanity. Counsel for the defendant insisted throughout the trial and insist on this appeal that all of said articles were admissible on the main issue as being highly provocative and| aggravative in nature, inasmuch as they had created in thej defendant an undefinable mental disturbance which swept' him on as by irresistible impulse to avenge wrongs which in his mental state appeared to him to be immedicable to relief save only by the slaying of the author. On the first or main issue the defense offered no substantial evidence which tended to justify the homicide as prescribed by the subdivisions of sections 195, 196, 197, 198, Penal Code, or by any other rule of law. Notwithstanding the admitted fact that the homicide was committed in the manner herein set forth and therefore as a matter of law precluded any claim, and none is made, that the defendant acted in self-defense, the court nevertheless gave in full the definition of manslaughter, as well as the two degrees of murder, and instructed the jury that it was within their discretion to return a verdict of manslaughter, and repeatedly during the trial of the issue of not guilty gave instructions at the request of the defense which were more favorable to him than he was entitled to have given, and went further and instructed the jury that if it had a reasonable doubt as to whether the defendant possessed sufficient mental power or] ability to premeditate and deliberate upon the act charged, j its verdict should be not guilty of murder in any degree. This in effect was to instruct the jury that if it entertained a reasonable doubt as to the mental responsibility of the defendant it should acquit him, contrary to the rule consistently stated from the earliest decisions of this court to the latest which declares it to be settled law that the burden is upon the accused urging the special issue of insanity or mental incapacity, to overcome the presumption of sanity by a preponderance of the evidence. Said instruction is also in conflict with the express provision of section 1026, Penal Code, as adopted in 1927 and amended by the statute of 1935, which provides that in cases where the defendant in addition to a plea, of not guilty also pleads not guilty by reason of insanity as here, the accused on trial of the general issue shall be conclusively presumed to have been sane at the time he committed the homicide. Said instruction was therefore more favorable to the defendant than the law justifies. Clearly the instruction deals with a question of mental capacity to commit a homicide and is governed by the rule which is applicable to insanity as a defense. The defendant further testified, that he had been thrown into fits of anger by his mother informing him of receiving telephone calls from the deceased and by letters she had received from deceased which were shown to him or their contents related to him and which caused her great mental grief. The most denunciatory and malicious of said letters which it was claimed deceased had written to Mrs. French were not produced but were said to have been destroyed. Said destroyed letters were claimed to have been exceptionally libelous and indecent, one of which in particular assailed the chastity of one of Mrs. French’s daughters. This letter was not called to the attention of the federal or state authorities. The reason for not doing so, the defendant testified, was that other libelous matter had been called to the attention of the U. S. Postal Department and he had been advised that the letter did not contain any threats to commit an offense and therefore no criminal charge could be lodged against the author. All of said lost or destroyed letters, the defendant testified, were intended to injure and insult members of the French family, and in particular Mrs. French, as editor of the Plaindealer, and E. A. French, her husband and business manager. One of the newspaper articles which the defendant named as having caused him the greatest grief appeared under the heading, “Rambling Around”, and stated that the local representative of the state board of equalization had been “fired” for in competency. Defendant said he was the only representative of that body in Modoc County and he went to the deceased’s office to see him about the article. Mr. McCracken replied that his name did not appear in the article. Defendant said that he made it plain to him that he was the person the deceased had in mind. McCracken said he could not prove it and defendant became quite angry and talked to him “pretty straight”. Defendant said that McCracken seemed to treat the matter in a jocular fashion and said that he had written other articles in cryptic fashion for fun and that the names of the parties involved were not given and that it could not be proven that he meant any particular one of a group of individuals. The defendant stressed several circumstances as being especially annoying to him and which caused him to be angered to the extent that he had made up his mind several times to go to his office with a club and use it on him, but in each instance he yielded to his mother’s advice. This state of mind usually occurred after the mother had related to the defendant some grievous insult which she claimed was communicated to her by telephone or through the mail by the deceased. One of the circumstances which provoked the defendant to considerable anger was the tendency on the part of the deceased to boost the Times and decry the Plaindealer by claiming that the Plain-dealer did not publish all of the news and that the Times had the larger circulation. Upon one occasion during the publication of the Times the deceased pasted the first pages of the Times and Plaindealer side by side in his office window and made notations in ink calling attention to certain items of news which appeared in the Times but which did not appear in the Plaindealer". Defendant contends these articles were provocative and had a tendency to greatly irritate him. The testimony of the defendant considered by itself, or in connection with the evidence as a whole, makes it very plain that the controversies which had been waged by the opposing parties had developed into a settled feud and that growing feelings of enmity and ill-will reached their climax on March 25, 1937, as the defendant observed on the cigar counter of the “Tavern” a few copies of the Mail containing paragraphs which the defendant testified he believed were by way of innuendo intended as reflections on his family name. Defendant’s counsel contend that the act of the defendant was the result of a long course of provocative conduct and acts amounting to persecution on the part of the deceased which so wrought upon the mind of the defendant as to overcome his powers of self-restraint and overthrow reason to the degree that he was not legally responsible for a condition brought about by the wrongful acts of the deceased. On the other hand, it is claimed by the people that the homicide was committed in a merciless manner and was the result of deliberation and premeditation and was founded in malice engendered by reason of the deceased having entered in competition with the French family in the newspaper business in a field formerly exclusively occupied by said family. Many of the newspaper articles about which complaint is made and which were introduced in evidence by the defense were written in caustic veins in the heat of a newspaper war in which business supremacy and political domination seemed to have been the coveted fruits of competitive extermination. Many of them clearly indicate they were retaliatory in character. However far one side, as against the other, may have transgressed the rules of fair or legitimate business methods or ethics, we do not assume to judge. It is quite probable that neither was without fault. It appears to be in order at this point to consider whether the acts of the deceased which are claimed to have been the cause of defendant’s alleged insanity were admissible on the trial of the issue of not guilty on the theory that knowledge of said acts tending to establish insanity would materially assist the jury in the exercise of its discretion as to which of the two punishments prescribed by section 190, Penal Code, should be imposed. This court in People v. Troche, supra, adopted the following statement of the law as set forth in 14 R C. L., page 599: “It is the general rule that insanity, when interposed as a defense in a criminal prosecution, is either a complete defense or none at all, and it has been held that there is no degree of insanity sufficient to acquit of murder but not of manslaughter.” Continuing the discussion in the Troche case, we added (p. 47) : “It follows, therefore, that any evidence tending to establish the insanity of the defendant under his plea of not guilty by reason of insanity at the time of the commission of the homicide, other than evidence of the immediate circumstances of the offense, would have been irrelevant and immaterial on the trial of the general issue as to the guilt or innocence of the defendant raised by the general plea of not guilty. As the statute accorded the defendant his full right, and ample opportunity to submit to a jury his plea of insanity at the time of the commission of the offense, in excuse of his act and as a reason why no penalty of the law should be visited upon him, it follows that the trial court correctly excluded the evidence on the trial of the general issue. “Furthermore, the only evidence admissible for the purpose of enabling the jury to determine whether the death penalty or life imprisonment should be imposed in the event the defendant should be found guilty of murder in the first degree was the evidence which the court did admit, and which concerned ‘the circumstances connected with the offense’. (People v. Golsh, 63 Cal. App. 609, 613 et seq. [219 Pac. 456]; see, also, People v. Witt, 170 Cal. 104, 110 [148 Pac. 928].) The insanity of a defendant cannot be used for the purpose of reducing his crime from murder in the first degree to murder in the second degree. If responsible at all in this respect, he is responsible in the same degree as a sane man, and if he is not responsible at all he is entitled to an acquittal in both degrees. (State v. Maioni, 78 N. J. L. 339 [74 Atl. 526, 20 Ann. Cas. 204].)’’ For other cases on the point we cite the following: People v. Leong Fook, 206 Cal. 6A-71 [273 Pac. 779]; People v. Perry, 195 Cal. 623 [234 Pac. 890]; People v. Hurtado, 63 Cal. 288. In this state, so far as “accountability to the law is concerned there is no middle ground. ’ ’ (People v. Perry, supra; People v. Troche, supra, and cases therein cited.) Partial insanity is not sufficient alone to excuse the commission of a homicide. “In order that ‘insanity may be available as a defense to a crime charged, it must appear, that the defendant, when the act was committed was so deranged and diseased mentally that he was not conscious of the wrongful nature of the act committed’.’’ (People v. Troche, supra.) Every act of the defendant both before, at the time and immediately after he committed the act shows that he was conscious of the act he prepared himself to commit and which he did commit by a surprise attack. By no process of reasoning can the conclusion be reached that he was unconscious as to his act and its wrongfulness. “If he [the accused] has reasoning capacity sufficient to distinguish between right and wrong, as to the particular act he is doing, knowledge and consciousness that what he is doing is wrong and criminal and will subject him to punishment, he must be held responsible for his conduct.” (People v. Troche, supra.) This rule has been so frequently stated and restated by the decisions of this court substantially in the language of the above quotations taken from the Troche case as to make it unnecessary to further revert to the subject, except, possibly, to emphasize the fact that the accused in the Willard case shot and killed the sheriff a few moments after the court had signed the commitment adjudging him insane. Willard had twice before been committed to a state institution for the insane. The jury found him guilty of first degree murder without recommendation and this court affirmed the judgment. (People v. Willard, 150 Cal. 543 [89 Pac. 124].) Another kindred question pressed by appellant is that the verdict of the jury should not have been higher than murder of the first degree fixing the punishment (in the exercise of the jury’s discretion) at confinement in the state prison for life. The argument advanced in support of the contention that mental deficiency or certain types of mental deficiencies or disorders which the law does not recognize as an excuse for a criminal act, although not legally sufficient to exempt the accused from punishment, may, nevertheless, be considered by the jury as a circumstance warranting mitigation of the punishment which the law would reflect if no mental infirmities existed, finds no favor in the law of this and other jurisdictions. It was the theory of defendant at the trial, and is here, that it was proper to admit evidence which bore upon the feeling of mutual contempt, dislike and ill-will which the respective newspaper rivals held for each other as expressed in their respective publications, and shown in other ways. This evidence, appellant claims, was properly admissible for the jury’s consideration on the issue of not guilty. Rather, it may be suggested that this evidence tended to show motive on the part of the defendant. (People v. Hurtado, supra.) The advantage, no doubt hoped to be gained by the defendant by the admission of the questioned evidence was that the jury, on the general issue of not guilty would have before it evidence which could not have been brought to its notice in any other way. Insanity cannot be invoked as a defense or justification of taking human life. It is a plea in excuse of crime. “The plea of insanity is, and of necessity must be, a plea of confession and avoidance.” (People v. Troche, supra; People v. Leong Fook, supra; State v. Lawrence, 57 Me. 574.) Section 1026, Penal Code, provides in specific language that when the defendant pleads not guilty by reason of insanity and not guilty of the offense charged he shall be tried as if he had entered the latter plea only and “in such trial he shall be conclusively presumed to have been sane at the time the offense is alleged to have been committed.” (Italics ours.) If he is conclusively presumed to be sane how can the causes which it is claimed produced insanity be relevant or material to a defense that is foreclosed against him on the trial of the issue of not guilty? That issue is tried on the grounds of justifiable or excusable homicide as provided by the ample provisions of sections 195, 196,197, Penal Code. An insane person is a person incapable of committing crime. (Sec. 26, Pen. Code.) This constitutes a special issue which is examined as such unmixed with any other issue. No other conclusion is possible under the wording of section 1026 et seq., Penal Code, as amended, other than that the matters (newspaper publications, letters and conversations had with his mother, etc.) which were offered on the trial of the issue of not guilty, as the exciting cause of mental disturbance, were relevant solely to the issue of insanity, and to none other. It could not be otherwise if any regard is given to the statutes. There could be but one sequence to appellant’s contention. If any part of the evidence bearing on the question of insanity was admissible as to the issue of not guilty, no good reason can be urged against the introduction of all of the evidence claimed to be relevant to the issue of sanity. Such a result would lead to an absurdity. We would, in such a case, have the court and jury hearing evidence bearing on an issue which neither court nor jury has any power to decide but which, forsooth, might be considered in the determination of the only issue properly before them for decision. This would be in violation of the mandate of a statute which this court has held to be valid and, further, opposed to our former ruling holding “that any evidence tending to establish the insanity of the defendant under his plea of not guilty by reason of insanity at the time of the commission of the homicide, other than evidence of the immediate circumstances of the offense would have been irrelevant and immaterial on the trial of the general issue as to the guilt or innocence of the defendant raised by the general plea of not guilty. ...” (People v. Troche, supra.) (Italics ours.) Under the general plea of not guilty, prior to the amendments of the statute, evidence relevant to the issue bearing upon mental competency but which had no relevancy to the issue of not guilty, was presented to the jury under the plea of not guilty and there is reason to believe that in many eases evidence as to mental competency in its almost illimitable field of exploitation had the effect of over-exciting the emotions of jurors by the introduction of matters not relevant to the question of guilt, to the extent of mitigating punishment in cases where it was not merited. Under the former system two issues were submitted in a single action. The intermingling of these issues provable by different degrees of proof may have caused some confusion in the minds of the jury. To remove such a possibility, as well as to prevent the jury from being influenced by matters which were solely relevant to the issue of insanity, may have constituted considerations which account in a measure for the changes made in the statute. As to the admissibility of the questioned evidence, under the statute prior to said amendments, this court in People v. Jamarillo, 57 Cal. 111, announced the rule with respect to the jury’s right of discretion in precisely the language approved in People v. Perry, supra; People v. Troche, supra; People v. Hall, 199 Cal. 451-456 [249 Pac. 859], In the Leong Pook case, supra, this court, in commenting upon the exercise of discretion accorded the jury, cited the case of People v. Witt, 170 Cal. 104, 111 [148 Pac. 928], and called attention to the limitation placed by the Witt case upon the rule announced by the Jamarillo case. In the Witt case the issue of insanity was not made a specific issue. The evidence offered and refused admission did not include any of the facts and circumstances connected with the commission of the offense, but consisted solely of evidence relevant to the character and previous habits of the defendant. Justice Richards, author of the opinion in the Leong Fook case, in discussing the Witt case said: “This court held [People v. Witt] that such evidence was not admissible for the sole purpose of enabling the jury to assess the punishment, in the event of conviction, at death or life imprisonment. This conclusion was adopted by the district court of appeal in People v. Golsh, 63 Cal. App. 609, 612 [219 Pac. 456], wherein the defense of insanity had been expressly disclaimed by the defendant. ...” (206 Cal. 64, 69 [273 Pac. 781].) It is convincing from the statutes themselves which specify the grounds upon which homicide is justifiable or excusable and from the decisions of this court that it was never the intention of the law that the two issues should be so commingled as to confuse the jury in its effort to obey the rules of law. The discretion which the jury may exercise must be determined from the facts and circumstances attending the commission of the offense. “Such other reasons” mentioned in the cases above cited must mean those which appear upon a consideration of the facts and attending circumstances relevant to the commission of the homicide, in short, the res gestae, and not stale, extraneous facts and circumstances which transpired two years or more before the homicide and which could not have “attended the commission of the offense ’ ’, nor tend to justify or excuse it. But whatever argument may be made in support of appellant’s views the question has been definitely settled by the provisions of section 1026 Penal Code et seq. and our decisions contrary to his contentions. There would be but little merit in appellant’s contentions if the law were as he contends it to be since many of the newspaper articles and provocative acts which counsel for appellant • contends disorganized his mental powers to the extent that he was rendered irresponsible for his act, were admitted over the objections of the prosecution made on the grounds that said evidence was self-serving, hearsay and immaterial to the issue being tried. The offers which were admitted were representative of those excluded and the latter could have added nothing to the evidence which though erroneously admitted inured to the benefit of the defendant in support of his contention that it might be considered in mitigation of the punishment. In view of the evidence given by Mrs. French and several members of her family and published articles, letters and writings introduced by the defendant, it abundantly appears that the parties thought, spoke and wrote illy of each other. The ultimate fact on the trial of the second issue being "whether the defendant was insane, it follows that the things which caused his insanity were but probative matters by which insanity might be shown. Some question is raised by appellant as to the sufficiency of the proof to support a finding that the homicide was committed in the county of Modoc. The sufficiency of proof as to venue cannot be seriously questioned as it appears from the testimony of several witnesses that the homicide was committed at the home of the deceased, located at Alturas, county of Modoc, this state. This court will take judicial notice that Alturas is the seat, of government of Modoc County, a political subdivision of the state. This proposition is too well settled by the authorities to require more than passing mention. Besides proof is ample from many sources that the deceased was killed in the McCracken home and that the McCracken home was located in Alturas, California. The map or plat offered in evidence descriptive of the McCracken premises, together with the illustrative testimony of the county surveyor, lays the venue beyond question in Modoc County. Objection was made to the introduction of photographs in evidence showing the relative places or positions which Mr. McCracken and the two ladies occupied at the table at the time of and during the shooting, and also to X-ray photographs taken of the body of the deceased showing the point of entry of the bullets. The order in which the parties were seated at the time the defendant entered the dining room has never been questioned. A photographic illustration of the positions or order in which they were seated could in no way have prejudiced the defendant with respect to a matter which is not disputed, but which, on the contrary, has been seized upon by the defense as a circumstance so wanton in execution as of itself to give support to the issue of insanity. Absolutely no claim can be made that the shots were fired in self-defense and therefore a photograph of the room and the relative positions of the parties could not possibly have prejudiced the defendant. Likewise, the admission of two X-ray photographs showing the courses which the bullets took after entering the body could not have been prejudicial, if erroneous. The autopsy physician had described the wounds to the jury and the jury knew that the entry of the bullets in the body had caused death. Therefore no prejudice could have resulted. Moreover, an examination of the X-ray photographs may have given the jurors a better understanding of the situation than they were able to get from the technical terms used by the medical experts. The course of the bullets was material as tending to show whether the body of the deceased at the time the several shots were fired was in an upright or recumbent or prone position. They were therefore relevant to the issue as to whether the physical evidence tended to show that the several shots were fired with a “willful, deliberate and premeditated’’ intent to take life. The course of the bullets was some evidence as to whether the deceased was in a falling position or was wholly prostrate on the floor. But if it could be said that the X-ray photographs added nothing to the oral testimony no harm could have been done the defendant by granting the request of the jury for further examination of the exhibits. The situation is unlike a case in which the proof as to whether the defendant committed the act charged presents a close question. In such cases immaterial or irrelevant matters of a highly emotional or prejudicial character may so seriously tend to degrade and disgrace the accused in the eyes of the jury as to render it less considerate of his defense than it would have been had the prejudicial and degrading evidence been excluded. Where such situations are shown to exist, retrials must be granted, but here nothing is shown by the photographs which tended to establish a single controverted fact. The defendant claims that the photographs must have had very great influence upon the jury’s deliberations from the fact that after retiring to deliberate it returned some time thereafter and asked for and was permitted to take said photographs to the jury room. The fact that said photographs were the only exhibits requested and eleven hours after receiving the exhibits the jury returned a verdict of guilty, is of no special moment. The jury entertained no doubt as to who killed McCracken. Their task was to determine whether the killing was done wilfully, deliberately and with malice. Contention that an inspection of said photographs did or could have inflamed the jurors’ minds to improperly impose excessive punishment is too insubstantial to merit further consideration. At the trial appellant adopted and urges here a three-fold defense, to wit: First, that the articles published in the Times beginning August 27, 1934, and afterwards published in the Mail ending on the day prior to the homicide, together with the letters and telephone calls which Mrs. Gertrude French testified she received from the deceased, were sufficiently provocative to justify the homicide; second, that if the killing was not wholly justifiable, nevertheless the circumstances out of which it arose were such as should preclude greater punishment than life imprisonment, if not manslaughter; third, that the defendant was excusable on the grounds of insanity. A defense on provocative grounds necessarily assumes as its premises a sane mind. Insanity is predicated upon a totally different ground—lack of or disturbance of the reasoning faculties. They present inconsistent defenses. It is the law, so long and firmly established in this state that no words of insult or reproach, however grievous, will justify an assault or threatening demonstration with a deadly weapon, that it will suffice merely to make reference to a few of the cases. “Nothing is more surely calculated to aroúse the blood of some men to a heat of passion than grievous words of reproach, yet no words are sufficient provocation to reduce an offense from murder to manslaughter and this principle is so well established in this state that discussion would be out of place.” (People v. Bruggy, 93 Cal. 476 [29 Pac. 26]; People v. Turley, 50 Cal. 469; People v. Manzo, 9 Cal. (2d) 594 [72 Pac. (2d) 119].) This rule thus early announced as the law of the state has never been departed from. In People v. Jackson, 78 Cal. App. 442, 448 [248 Pac. 1061], the rule was again stated in the following language: “In considering what is regarded as such adequate provocation, it is a settled rule in law that neither provocation by words only, however, opprobrious, nor contemptuous, or insulting actions, or gestures without an assault upon the person . . . are of themselves sufficient to reduce the offense of an intentional homicide with a deadly weapon from a murder to manslaughter. ’ ’ The jury, in the instant case, found upon overwhelming evidence that the killing was intentionally committed with a deadly weapon. The jury impliedly found that the killing was done with premeditation and deliberation and that the intent was formed without the presence of the deceased, and that quite an appreciable period of time intervened between the formed intent to kill and the act of killing which was done after preparation made and upon reflection. No claim of sudden combat is made and no facts or circumstances were present which could have made applicable the defense that the homicide was committed “upon a sudden quarrel or heat of passion”, as provided by section 192, subdivision 1, Penal Code. The act of killing may follow the intent to kill as rapidly as follow the successive thoughts of the mind. The court did not in any way limit the jury’s consideration as to the degree of punishment it should impose. It merely limited its consideration of the so-called provocative evidence which was not material to the issue of not guilty to the single question as to whether it was sufficiently provocative as to justify a reduction of punishment should they find the defendant guilty of first degree murder. In all other respects the jury was given absolute and unrestrained freedom to return such a verdict as the evidence in their judgment would warrant. In fact the court instructed the jury that it might find the defendant guilty of murder of the first degree, imposing life imprisonment or the death penalty at its discretion; guilty of murder of the second degree; or manslaughter or not guilty. Murder and manslaughter were fully covered by the court’s charge. Absolutely no fair or reasonable claim may be made that the jury was not free and untrammeled in the exercise of its judgment as to the degree of crime of which the defendant should be held guilty, if any. In fact, in its final charge on the trial of the general issue of not guilty the court in not less than three instructions told the jury it was its duty to consider the provocative evidence as bearing on the question as to whether or not it rendered the defendant “incapable of the deliberation and premeditation necessary to constitute malice aforethought.” Instruction No. 12 reads as follows: “Provocation, as the term is used in law, means that treatment of one person by another which arouses passion and anger. In cases of homicide it negatives the idea of malice and premeditation because the hot blood engendered by provocation produces a temporary suspension of the reflective faculties, and the passion aroused excludes the idea of deliberation. Therefore, evidence tending to establish provocation may be considered by you, and if, after due consideration of such evidence you should entertain a reasonable doubt as to whether there existed at the time of the homicide in the mind of the defendant the malice, deliberation and premeditation essential to constitute the crime of murder, it would be your duty to acquit the defendant of that charge. ’ ’ The above instruction and Nos. 11 and 13 opened the door wide for the consideration of the so-called provocative evidence for all conceivable purposes and leaves appellant no possible grounds for complaint. Counsel for appellant rest their defense on the psychopathic condition of the defendant which it is claimed had its origin in the attachment and deep-seated affection for his mother from early infancy. They argue that an increasing devotion to his mother’s well-being developed in him a sense of filial solicitude so overmastering that her cares became Ms cares and he became grieved to an inordinate and exaggerated degree whenever his mother manifested the slightest unhappiness. It is not contended that he was afflicted with general insanity, but it is claimed that his peculiar type of mental structure was overthrown by what he regarded as the unpardonable acts of McCracken and he acted on the impulse that he was justified in taking the life of McCracken. It is also contended that he was moved by an irresistible impulse to his act. Much of the newspaper controversy had no personal reference to the defendant but was directed to the policy of the Plaindealer and chiefly at Mrs. Gertrude French, its editor, with occasional thrusts in the nature of satire, lampoonery, or burlesque mention of the defendant, and Barr French, his father, and Jim Payne, his uncle, all of whom were in the public service. Occasional references were made to other members of the French family. Mrs. Gertrude French, mother of the defendant, was called to the witness chair and the foundation was laid for the introduction of a long list of newspaper articles which appeared in the Times and Mail during a portion of the year 1934 to and including March 24, 1937. The same objections were made to this class of evidence as was made to the testimony of witness Hopfield, the first witness called by the defense, with'the added grounds of hearsay. The objection was overruled and she testified to a great number of published articles and acts which she asserted were intended to humiliate her and to reflect on the good repute of the French family. Among other things, she testified that at some time in 1934 McCracken called her on the telephone and said, “Hello, God, I have got the one greater than God.” The probable meaning intended to be conveyed by the detached remark was that the deceased implied to Mrs. French a grandiose complex' as to her importance and power in the politics of Modoc County and in directing social and business life. McCracken attributed an air of arrogance and hauteur to the French family begotten of the fact that Jim Payne, Mrs. French’s brother, held a position in the national reemployment service; the defendant was in the employ of the state board of equalization, and his sister was in the service of the state. These circumstances were occasionally made the basis, in controversial differences between the parties, for insinuations by McCracken in the discussions of public and business matters, to the effect that the French family, speaking through the columns of the Plaindealer, were influenced in their advocacy of or opposition to matters of public concern, by the dictations of officialdom rather than by any consideration of general public welfare. In one issue of his newspaper McCracken printed a paragraph in which Jim Payne was quoted as having boasted of the great political influence the French family wielded in Modoc County and intimated that the family would use it against Sheriff Sharp at the next election in retaliation of his refusal to deputize a number of police officers sent from the southern section of the state to guard the northerly state line against a threatened excess of homeless wanderers into the state. These matters, it is claimed, greatly agitated Mrs. French and the defendant as she would relate them to her son quite frequently. She testified that she did not communicate the defamatory telephone messages and lost or destroyed letters which she received from McCracken to her husband, for fear that he would resort to acts of violence. She did continue to report them to her son and their effect upon him, as described by her, was extremely distressful. Several times he threatened to do McCracken bodily harm, but she restrained him in each instance. The defendant at times after she told him of her troubles appeared depressed and would walk the floor without saying scarcely anything; he could not apply himself to his work for quite a while thereafter; he became extremely restless. His state of mental equipoise was greatly disturbed by the unhappiness which said articles caused her. She testified she w^as often moved to tears and brought to the brink of nervous collapse while recounting to the defendant the mental anguish which said articles caused her. Many of the articles which she testified had caused her and her son grievous mental suffering, were apparently retaliatory and were written in the heat of a bitter struggle for business and political supremacy in a commmiity in which the field of journalism was limited. That the deceased on several occasions overstepped the proprieties which should be observed as canons of journalistic ethics, even though the controversy at times waged furiously, is apparent from an inspection of the few publications which are in part reproduced. Many of them were overstressed by Mrs. French and her son while others are too trifling to merit more than passing mention. Upon calling its first witness the defense sought to show by Frank Hopfield, former editor of the sports column of the Plaindealer, that Hopfield in April, 1935, acting as a voluntary conciliator sought to make peace between the heads of the two newspapers but McCracken declared his determination of carrying the strife to a final conclusion. The prosecution objected to the admission of the line of evidence which had to do with newspaper publications or personal criticisms communicated by letters or telephone on the grounds that such evidence was irrelevant, incompetent and inadmissible as to the main issue, not guilty. The court ruled that while such evidence could not be deemed sufficient to justify the homicide the jury was entitled to consider it in mitigation of punishment. The court thereupon instructed the jury as follows: “In other words, if the jury finds the defendant guilty of murder in the first degree they can take into consideration such evidence for the purpose of mitigating the punishment and recommending life imprisonment instead of the death penalty.” The witness then proceeded to relate a conversation he claimed to have had with McCracken in April, 1935, approximately two years before the homicide, in which he asked McCracken why he didn’t leave the Frenches alone and advised him that he, McCracken, having recently come into the community “should try to get along with people instead of using the tactics that he did”. McCracken replied that “he was out after their hides” and he would not “lay off” until he “broke them”. The witness said he communicated these words to Mr. and Mrs. French, the proprietors of the Plaindealer. Harry L. Payne, an uncle of the defendant, testified that shortly after the election in 1936 the deceased told him he would “lay off” of him but he would not “lay off” the Frenches. Mrs. Gertrude French testified at great length and most of the testimony which she gave was of the type referred to by counsel as “provocative” of the homicide. Much of it was trivial and consisted of passing quips and paragraphs written in the style of the columnist under heading such as “Around The Town”, “This ’N That”, or under headings cleverly phrased to catch the reader’s eye. Among the published articles which Mrs. Gertrude French and appellant stress as being exceptionally provocative and as tending to disturb the mental balance of the mother and son was an editorial published in the Mail February 15, 1935. This issue was one of the earlier publications and indicated the policy which the paper would pursue. The editorial stated that ‘ ‘ certain citizens with the welfare of the community at heart requested the writer ... to establish an independent newspaper in the county. Immediately the forces behind the other alleged newspaper began throwing cat-fits with the peculiarities common to the feline breed.” Among the things promised its readers were that the editor “will never grow so large that we believe we are God”. Another promise was that the paper “will seek to never be carried away by chance of political advancement for ourselves or our relatives, to the extent that we will sell out the interest of the people of Modoc”. No worthy cause will be without a champion and no wrong will go unopposed. “If a man bites a dog in Kankakee County that is news in Kankakee but we do not intend to run a temperature over it here. . . . We intend to try to carry a complete account of the doings of Modoc County people—each article will not injure some one. We shall seek never to diagnose the reason for a woman having a baby as due to the fact that she was a victim of an automobile accident a short while before. ’ ’ The following excerpt is taken from a published article of April 5, 1935: “A weekly circular, published in Alturas, piqued because it, in its guise of a newspaper, had missed forty news items . . . which were published in the Modoc Mail last week published a tirade of misinformation about the Mail editor. Thanks, Gertrude, for the ‘free advertising’ which you deelined to give us last spring. If you believe you can throw enough mud in your columns to dust over the eyes of the public enough that they overlook the fact your circular is devoid of news . . . then you are entitled to practice the sort of tactics in which you seem to enjoy to indulge yourself.” Article of December 11,1936: ”... Mrs. Gertrude P. French appeared before the Board of Supervisors