In his petition for rehearing appellant treats the concurring opinion of Justice Stephens, joined in by Justice Craig, as if it brought something new into the case. This view is unsound. The effect of the concurring opinion was that the two justices agreed to everything contained in the opinion preceding their concurrence, with one exception. They dissented from what the writer of the main opinion had said to the effect that appellant had either waived or failed properly to present the question which was left open by the trial judge when the district attorney interrupted the opening address being made to the jury by appellant's counsel.
The main opinion took two grounds upon which its writer attempted to base the determination that it was not necessary to decide whether the trial judge erred in limiting testimony concerning the son of appellant to threats. It was as to one of these grounds that Justices Stephens and Craig dissented, and their dissent, of course, presented the law of the case upon the question. What the writer of the main opinion said upon the subject went for naught. The court determined, through the two dissentients, that the first reason assigned by the writer of the main opinion was not a tenable ground for refusing to decide whether the trial judge was in error in saying what he did, twice, as to the limitation to be placed upon the testimony concerning the son.
The second reason given by the writer of the main opinion for the declination to decide the point in question was that, despite what the court said and even though counsel for appellant did not give the court an opportunity to decide the point in question, the testimony went far, and went far enough, in showing the son's conduct other than threats. This state of affairs is fully set forth in the main opinion, and Justice Stephens, in writing his concurrence, referred to no part of the record except those parts stating the state of affairs referred to. This matter is here made clear because of the ground taken in the petition for rehearing. There were two trials of appellant, the first under his general plea of not guilty, which resulted in a verdict against him, the second under his special plea of not guilty by reason of insanity. It is obvious that no evidence taken at the second trial can work either to affect, uphold or overthrow the verdict which had already been rendered under the *Page 391 general plea. It is said in the petition for rehearing that the evidence in the record as to the acts and conduct of the son, other than testimony as to his threats, is to be found in that part of the record made after the commencement of the trial under the plea of insanity. In making the assertion counsel are in error. All the evidence referred to in the main opinion, upon this particular question, was produced at the trial under the plea of not guilty. None of us had read, before the filing of the petition for rehearing, the testimony of appellant given upon the trial of the issue as to insanity.
As the writer of the main opinion still adheres to his early view upon the first ground he set down as a reason for not passing upon the correctness of the trial judge's two remarks as to the limitation to be placed upon the testimony concerning the son, he thinks it proper to say something more upon that subject. In his petition for rehearing appellant naturally seizes upon the remark in the concurring opinion that "the point was reopened when the attorney offered to make a showing through the father's testimony of the son's statements to him of the personal relations existing between them but a short time before the tragedy". Appellant then cites instances in support of this assertion. One of these is thus shown by the record: "Q. And what kind of business were you and Earle in? A. Well, we were into several kinds during that time. Q. Well, just tell us about them in your own way. [The District Attorney]: To which we object as immaterial. The Court: Objection sustained." This matter surely does not support the assertion contained in the concurring opinion. The objection was plainly good, as pointed out in the main opinion.
In the petition for rehearing appellant, in support of the language above quoted from the concurring opinion, also recites that portion of the record quoted in the main opinion, containing this: "The Court: It is not a question of remoteness. The deceased is not on trial. What he said other than by way of threats is immaterial. Just confine yourself to what your son said, if he said anything." Then came the answer of the witness, showing a threat by the son. There was nothing here to show that the judge had departed from the tentative view he had expressed just before the evidence *Page 392 for the defense was opened. He had then left the question open, and appellant's counsel could not have been misled, by the court's latest remark, into a belief that it was no longer open, if the whole record be considered. During the entire trial appellant's counsel never asked a question to which objection was made, that raised the point. Not a single occurrence had taken place during the trial either to stiffen or to relax the judge's attitude assumed when the question first came up. The record is a blank upon the subject. There is no doubt, in the mind of the writer of the main opinion, from the early statement made by the trial judge, that he was ready at any time to have the point presented and discussed; nor, considering the whole record, could appellant's counsel have been misled to a contrary belief. As was remarked in the main opinion, the trial judge was never given an opportunity finally to pass upon the point.
Strange to say, appellant questions, in his petition for rehearing, the ruling of the trial court upon the following inquiry addressed to the brother of appellant: "[C]an you tell us something of the particular symptoms or form of insanity that your father manifested?" The question was immaterial, because one of that nature cannot be put to an "intimate acquaintance", as well as for the reasons assigned in our opinion. The statute provides that "evidence may be given upon a trial" of "the opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opinion being given" (sec. 1870, Code Civ. Proc., subd. 10). The question above quoted asked neither for reasons upon which an opinion as to sanity might have been later expected, nor did it ask for the opinion itself. The insanity of the father was presupposed by the question, and under the statute there was nothing left for the witness to answer.
Rehearing denied.