I dissent.
To my mind, it amounts to a denial of the application of the principle of “due process” to adjudicate in effect that, although the jury is required to fix the punishment that shall be imposed on an accused who has been found guilty of murder in the first degree, it must do so in utter ignorance of any facts which relate to the commission of the crime other than those which show “the circumstances connected with the offense”.
Aside from generalities, in the instant case, the mental state of defendant at the time when the crime was committed was a most important element of his defense. Had he been even a normal individual, it is obvious that, during a period of several months that preceded the commission of the offense, the effect upon his mind of almost continuous insult, slander and libel, not only as it affected himself personally, but also the good reputation of his mother and his sisters, to say nothing of other relatives, must have been most provocative. The original adverse criticism of defendant wMch was made by the man who suffered death as the result of his temerity in that regard may not have been so harsh; but each subsequent similar attack carried with its own singular effect the certainty of increasing the sting of each and all of the former oral or printed castigations to which defendant theretofore had been subjected. In such circumstances, the final attack, although possibly not so severe as some of those which had preceded it, was like the “last straw on the back of the camel”. The continuous insult and humiliation to which defendant had been subjected finally proved to be too great for his peculiar nature to further endure. As a matter of ordinary observation, and without regard to contrary judi*777cial precedent with reference thereto,—considering the trial of the issue of “not guilty by reason of insanity” and the facts which were therein developed, especially that defendant’s mental makeup was that known as “introvert”—the materiality of all evidence that bore either directly or indirectly upon his state of mind at the time when the offense was committed should be most apparent.
By statutory provision, one of several conditions, which, if existing at the time when a homicide is committed, in law will justify the commission of the offense is where it has been induced or prompted by “heat of passion” (see. 195, Pen. Code). In addition thereto, one of the definitions of the crime of manslaughter is that it is the unlawful killing of a human being, without malice, in the “heat of passion”. Although the weight of judicial authority may not countenance the fact, nevertheless, from the viewpoint of the layman, it must be obvious that in especially irritating or provoking circumstances such a condition in the mind of an average man might have been created by reason of an indignity which he had suffered and which might result from any one or more of many causes; for example, a slur upon his integrity, an insinuation or a direct charge of unchastity of his mother or his sister, a spit in his face, or a tweak of his nose, or even a slap on his cheek. No words of statute require that either a “sudden quarrel”, or a physical encounter of any sort, precede the act or acts which induce the “heat of passion”. For aught that may be indicated therein, “heat of passion ’ ’ may be engendered by any untoward act on the part of the person whose life is subsequently taken by the accused. To the lay mind, so-called “laws” to the contrary are subject to the criticism that they are purely “judge made”; and it is indisputable that they are singularly lacking in sanction by legislative act. Likewise is it manifest, notwithstanding judicial precedent to the contrary, that the mind of a “high strung”, red-blooded man, who has been subjected to insult in any form is more likely to become aroused to a “heat of passion” than is that of a placid and phlegmatic individual. To an introvert, or one who broods upon his troubles (such as was the defendant herein), it is not improbable that in the course of time a single insult would or might be provocative of a “heat of passion”; but it approaches a certainty that a *778long-continued course of oral or printed personal attack upon him inevitably would produce that result. Hence, on the “not guilty■ ’ issue, the importance to defendant of establishing the fact not only that on a limited number of occasions (regarding which evidence was admitted), he or some member of his family was subjected to vilification and abuse by the man whom he thereafter killed, but also that on dozens of other occasions, regarding which evidence was offered by defendant but which was denied admission by the trial court, the person who was killed continued in his oppressive and provoking course in that regard. In such circumstances, to my way of thinking, no limit should have been placed by the trial judge upon the introduction in evidence of newspaper articles which were prepared, published and circulated by the man whom defendant killed, which articles reflected upon defendant or his relatives in any way; and whether such evidence in its direct effect was great or trifling, or whatever its volume, or however numerous such newspaper articles may have been, was immaterial as far as the admissibility of such evidence was concerned. Also, I am convinced that it was receivable either as tending to mitigate the offense and thus become useful to defendant for the purpose of forming some substantial base upon which the jury properly might act on the question of fixing the punishment that should be imposed on defendant if found guilty of murder in the first degree, or in determining whether the crime of which he was guilty constituted that of manslaughter only.
On the theory that the “not guilty” issue defendant was entitled to establish the existence of “heat of passion” as a “defense”, the case of People v. Hurtado, 63 Cal. 288, is instructive. In that case, in an attempt to legally justify the killing, the wife of the defendant testified “that she confessed to him prior to the killing, she had been guilty of adultery with deceased, and that the confession was followed by great anger, weeping, and mental depression on the part of defendant”. The defendant was convicted; and on appeal from the ensuing judgment, he urged as prejudicial error on the part of the trial court its' refusal to instruct the jury that: “If the jury believe from the evidence that the defendant was not so insane, at the time of the homicide, as to be irre*779sponsible for his acts, but at the time he was laboring under such a mental unsoundness as to cause him to be easily aroused to a sudden heat of passion, and that he committed the homicide without malice aforethought, but on a sudden heat of passion aroused and caused by an act of injustice towards him, committed by the deceased,' it will be their duty to find him guilty of manslaughter only.” In ruling that the instruction was properly refused, in part it was declared by this court that: “To reduce the offense to manslaughter the provocation must at least be such as would stir the resentment of a reasonable man.
“It cannot be urged that the homicide is manslaughter because it was committed in an unreasonable fit of passion. In an abstract sense anger is never reasonable, but the law, in consideration of human weakness, makes the offense manslaughter when it is committed under the influence of passion caused by an insult or provocation sufficient to excite an irresistible passion in a reasonable person; one of ordinary self-control.” (Emphasis added.)
Likewise, in the case of People v. Logan, 175 Cal. 45 [164 Pac. 1321], after reviewing the law respecting the same question presented therein, the court said that: “These cases serve to illustrate that it is not alone the fear of great bodily injury which will reduce a homicide to the grade of manslaughter. The passion aroused may be one entirely disconnected with any fear of personal injury, the fundamental inquiry being, we repeat, whether it be sufficient to obscure reason and render the average mm liable to act rashly (citing cases). . . . But upon this suffice it to say that, having in mind the facts as above outlined, the feelings naturally engendered in defendant’s mind by the indignity previously put upon him, the physical superiority of the deceased, the aggressive manner in which he accosted him, the fear that he was about to be subjected to a second humiliating beating, there was at least some evidence tending to reduce the crime from murder to manslaughter, for the due consideration of which evidence defendant was of right entitled that the jury should be correctly instructed. For, as well said in Stevenson v. United States, 162 U. S. 313 [16 Sup. Ct. 839, 40 L. Ed. 980] . . . : ‘The evidence might appear to the court to be simply overwhelming to show that the killing was in fact *780murder and not manslaughter, or an act performed in self-defense, and yet, so long as there was some evidence relevant to the issue of manslaughter, the credibility and force of such evidence must be for the jury, and cannot be matter of law for the decision of the court.’ ” (Emphasis added.) As a resume, the syllabus is a correct indication of the ruling. It is as follows: “In the present condition of our law it is left to the jurors to say whether or not the facts and circumstances in evidence are sufficient to lead them to believe that the defendant did, or to create a reasonable doubt in their minds as to whether or not he did, commit his offense under a heat of passion; and an instruction which defines the nature of the passion itself and limits the exciting cause to a serious injury, or attempted injury, to the person of the defendant, is erroneous.” (Emphasis added.)
The jury has but one opportunity to render its verdict on the “not guilty” issue; and, as far as the jury is concerned, that verdict is final. If, in accordance with the views expressed in the prevailing opinion herein, evidence of facts which may have constituted the inducing cause of “heat of passion” legally may be excluded from consideration by the jury, how is it possible for the jury to rightfully determine either the kind of crime that has been committed, or the degree thereof; or how may the jury justly solve the problem which involves the question of what penalty should be imposed on the defendant? Manifestly, an uninformed jury is not qualified to render justice.
Nor should reasons for my inability to agree with my associates in their conclusion herein be deemed limited by or confined to the foregoing observations. Several other reasons for my protest against the judgment herein might be pertinent, not only as applying to the points to which some attention has been devoted, but as well to others. (See dissenting opinion in People v. Troche, 206 Cal. 35, 51 [273 Pac. 767].) However, I cannot refrain from at least expressing the fact that I seriously doubt the correctness of the basic assumption which, at least by inference, appears in the concurring opinion, to wit, that in the premises the power or authority of this court either is or may be either increased or limited by the provisions of subdivision 6 of section 1,181 of the Penal Code. .Originally, the several provisions of the Constitution of this *781state expressed all the powers that were possessed by this court. As far as I am aware, with the possible exception of powers that relate to findings of fact, which are conferred by the provisions of section é% of article YI of the Constitution, the legislature of this state has no authority either to increase or to decrease in any way any of the powers of this court. If, either originally or by the provisions of any subsequent amendment to the Constitution, this court has been granted authority to modify the judgment in any particular, it still has it; and if jurisdiction has not been thus conferred, by no unauthorized legislative act could such a power be created in it. Besides, if the “penalty” be considered as a part of the judgment, and if legislative authority is all that is lacking in the matter of authority in this court to alter such penalty—although enacted prior to the date of the adoption of the present Constitution—section 1260 of the Penal Code is much broader in its scope, and in criminal appeals purports to authorize an appellate court to “reverse, affirm, or modify the judgment or order appealed from. . . . ” (Emphasis added.)
Rehearing denied. Langdon, J., and Houser, J., voted for a rehearing.