I dissent.
It appears that the judgment on the first trial of this cause (99 Cal.App. 224 [278 P. 258]) was reversed because of the failure of the trial court to finish the trial by disposing of the question raised by defendant's plea of not guilty by reason of insanity. While it must be admitted that in the order of reversal the District Court of Appeal attempted to preserve the verdict of guilty theretofore rendered on the issue of defendant's first plea, yet in my opinion said court could not properly enter any order except a general order of reversal. This follows from the fact that the disposition of the issues made by the several pleas of the defendant constituted but a single indivisible trial.
This is in effect held over and over again in the case ofPeople v. Leong Fook, 206 Cal. 64 [273 P. 779]. There the court held that it was not necessary that the jury be resworn after the trial of one issue and before entering upon the trial of another; also that after the trial of one issue no examination of jurors should be had as to their qualifications to further act as such before entering upon the trial of the further issue. Moreover the court there approved the following quotation from the case of People v. Connor, 142 N.Y. 130 [36 N.E. 807, 808]: "There was but one indictment and one charge, and the defendant's pleas constituted his answer and defense to the accusation. He was entitled to but one trial and could demand but one jury. The order in which the issues should be disposed of was a matter in the discretion of the court, which had power to direct them to be tried separately or together; and whatever course was adopted the trial must be one continuous proceeding, and the rights of the defendant with respect to the examination of the jury were the same as if the plea of `not guilty' alone appeared upon the record. He had no more right to stop the trial while in progress in order to ascertain the effect which the evidence given had upon the minds of the jury than he would have had if there was only a plea of the general issue."
In fact the undeniable conclusion from the reasoning employed in the Fook case excludes the existence of two or more juries acting in department upon the trial of the pleas *Page 552 entered in a criminal case. This simply cannot be done in a jury case where the jury is impaneled according to the rules of common law. Moreover, the identical question here before us was passed upon by this court in the case of People v. Pokrajac,206 Cal. 259 [274 P. 63]. There the defendant, as here, entered the two pleas. At the conclusion of the trial on the first plea the court immediately fixed the time for pronouncing judgment and then turned to the jury and said: "And you, gentlemen of the jury, I wish, on behalf of the People of the State of California, to commend you for your courageous and faithful work in this case in rendering a verdict which, undoubtedly, is the correct one." It will be noted that this remark of the court in nowise affected or tainted the verdict on the plea of "not guilty," but this court held that it did prejudice the whole issue and gave and made its general order of reversal. Thereafter the attorney-general petitioned this court to have the judgment modified to read as follows: "The judgment and the order denying defendant's motion for a new trial upon his plea of not guilty by reason of insanity are hereby reversed and a new trial upon such plea is hereby ordered." Upon reconsideration this court refused to change its former order and entered an order as follows: "By the Court: The petition for a rehearing and a modification of the decision herein is denied. (All concur.) Waste, Chief Justice."
The above ruling and the ruling contained in the majority opinion are diametrically opposed to each other. I think the judgment should be reversed and a new trial had upon all issues.