The authorities from other jurisdictions hold generally to the same view. Hopps v. Illinois, 31 Ill. 385, 83 Am. Dec. 231; State v. Jones, 50 N. H. 382, 9 Am. Rep. 242; Smith v. State, 95 Miss. 789, 49 South. 945, 27 L. R. A. (N. S.) 461, Ann. Cas. 1912A, 23; 1 Wigmore on Evidence, § 228. In the case of People v. Donlan, 135 Cal. | 489, 67 Pac. 761, this court adhered to the same rule, the court saying: between the admissibility of evidence of particular acts of a defendant for the purpose merely of proving good character and its admissibility when offered upon the issue of the defendant's insanity at the time of his commission of the crime. [2, 3] The appellant finally urges certain acts of alleged misconduct on the part of the district attorney in the course of his argument of the case. Most of the objectionable "It is claimed on the part of appellant that matter in the address of the district attorney this testimony was irrelevant and had a tend- occurred during the course of his comments ency to prejudice the minds of the jury. If the upon the evidence which had been presented evidence tended to establish the facts constitut- concerning the particular acts and conduct ing the offense charged in the information of the defendant as indicating him to be a that is, that the acts of the defendant were sane but evil-minded man. As to nearly all the acts of a debased and murderously inclined of these remarks no objection was urged at person, instead of those of a madman or one the trial, and no request made for an ininsane-it was right and the duty of the peo-struction thereon. It is too late now to urge ple's attorney to offer such evidence, and the misconduct as to these matters as to which, court did not err in admitting it. The purpose was not to prejudice the minds of the jury, but if prompt objection had been made, their rather to convince them of the truth of the prejudicial effect, if any, might have been acts charged. The evidence tended to show obviated by their withdrawal or by a suitable a motive for the homicide, and that the acts instruction from the court to the jury to of defendant were inspired by hatred and re- disregard them. As to any objections which venge, and were not those of an insane person. were made at the time to the remarks of the The evidence, therefore, was relevant, and tend- district attorney, the record shows that the ed to show that defendant was sane at the time court did admonish the jury at the time to of the commission of the offense charged." disregard the obnoxious statements of the district attorney. We perceive no reversible error as to these matters. See, also, People v. Willard, 150 Cal. 543, 89 Pac. 124. The appellant cites the two cases of People V. Oppenheimer, 156 Cal. 733, 106 Pac. 74, and People v. Harris, 169 Cal. 53, 145 Pac. 520, as supporting his contention as to the inadmissibility of this character of evidence. In the first of these cases the question arose over the attempted cross-examination of the defendant himself as to certain particular acts for which the court held no proper foundation had been laid. In the other case the question arose out of an apparent attempt on the part of the defendant to prove his own good character in respect to truthfulness and honesty by a question asked of his mother as to whether she had always known him to be truthful and whether she had ever known him to steal anything. This court upheld the action of the trial court in refusing to admit this evidence and in doing so said: "It is the rule as claimed by appellant that when the insanity of an accused is interposed as a defense, his acts and conduct and declarations made a reasonable time before and after the alleged criminal act is committed may be given to the jury on the question of his insanity at the time the criminal act was committed if they appear to have any tendency to show his mental condition at that time. People v. Willard, 150 Cal. 544, 89 Pac. 124. But here the question proposed did not indicate in the slightest that the conversation sought to be elicited would have any such tendency." In the case of United States v. Holmes, supra, the distinction is clearly pointed out The foregoing covers all of the points urged by the appellant for a reversal of the case. We find no merit in any of them. The record in this case, taken as a whole, sufficiently shows that the defendant, as the consummation of an evil and immoral life, committed a willful, premeditated, and unprovoked murder, and that he has been fairly tried and lawfully convicted of his crime. Judgment affirmed. We concur: SHAW, C. J.; LAWLOR, J.; WASTE, J.; SHURTLEFF, J; SLOANE, J. WILBUR, J. I concur in the judgment of affirmance, and in the main with what is said in the opinion of Mr. Justice RICHARDS. An investigation as to the insanity of a defendant in a murder case may take as wide a range as the investigation of that subject in any other type of case, and the limitations to be placed upon this testimony is largely in the discretion of the trial court. Estate of Baker, 176 Cal. 430, 168 Pac. 881. The declarations of the defendant are admissible in evidence as verbal acts tending to show the mental condition of the defendant. The fact that such declarations might tend to degrade the character of the defendant or excite prejudice against him is no reason for excluding the evidence. A defendant who has placed his mental condition in issue, and who admits that he committed the criminal act charged against him, opens the door to (205 P.) the widest possible investigation of his mental status, and he cannot complain of the fact that the people present and rely upon evidence which is inconsistent with his theory as to his insanity. (188 Cal. 353) In re GOULD'S ESTATE. (S. F. 9884.) A question asked of experts in a will contest case, which in one place stated that the hypothetical man inquired about could not remember anything, and in another place stated he was a lawyer engaged in active practice and trying cases up to the day before his death, was inconsistent. 2. Evidence 568 (2) - Experts' answer to hypothetical question as to testator's insanity, held insufficient to sustain verdict against will. Where a hypothetical question relating to testator's sanity stressed the fact that the hypothetical man had cut off a daughter without any reason clearly did not relate to testator, held that the experts' opinions that the hypothetical man was insane were not sufficient where the experts testified their opinion would to sustain a verdict against the will, especially be changed if there was a reason for the provisions of the will, and did not clearly show that they regarded the man as legally insane. 3. Wills 333-General verdict in will con The defendant claims that he is suffering from a type of insanity known as paranoia. (Supreme Court of California. March 7, 1922.) This type of insanity always manifests itself. Evidence 553(1)—Hypothetical question by one or more delusions. The delusion apheld inconsistent. parently relied upon by the defendant in this case is that he was wronged by the man he killed. The evidence is insufficient to establish that such belief was an insane delusion, for the evidence clearly shows that the defendant believed, and had reason to believe, that the deceased and Mrs. Peirano entered into a conspiracy to compel the defendant to marry Mrs. Peirano, and that in the course of this conspiracy the deceased took advantage of the fact that the defendant was having meretricious relations with the woman by himself causing the woman to become pregnant, and then prompting the woman to claim that the child was begotten by the defendant, and to demand that the defendant marry her for that reason. As ground for this belief the defendant knew that Cox had asked him to marry Mrs. Pierano about the time the child was begotten; that when it was born Mrs. Peirano gave the defendant's name as the father of the child, and demanded that he marry her, and that the woman persistently refused to show the defendant the child, although he agreed to marry her if the child appeared to be his. After nearly five years' effort to have the birth certificate changed, the defendant on the day the murder was commited was completely baffled in his efforts to obtain redress by having Mrs. Peirano arrested. Immediately after the refusal of the district attorney and sheriff to act he procured the gun and killed Cox, the other member of the conspiracy. It is evident that the defendant's conclusion that he had been wronged by Cox was not an insane delusion, for it was based upon reason and facts. I feel that I do not sufficiently understand the sex psychology of an illicit triangle of love and passion to join in the statement of the majority opinion in that regard. As I understand the main opinion, it advances the theory that the defendant killed Cox because he thought the woman showed Cox a higher degree of love than she did him; but it appears that both Cox and the woman wanted the de test is unauthorized. special verdict in a will contest, the jury should Where the experts' opinions of testator's insanity were based upon the provisions of the will cutting off a daughter with $1, and the court had instructed that the jury could consider that circumstance in determining the issue of incompetency, requested instructions by proill will to one of his children, or made an unponents that the mere fact that testator bore natural disposition of the property, did not invalidate the will if the evidence clearly showed testator was sane, should have been given. In Bank. Appeal from Superior Court, City and County of San Francisco; Thos. F. Graham, Judge. In the matter of the estate of Frank H. fendant to marry her, and both claimed that Gould, deceased. Contest of a will by Doris he was the father of the child. The defendant seems to have believed that he was the victim of too great a demonstration of affection instead of too little. I do not concur in the concluding paragraph of the main opinion because I do not feel that we are called upon to pass judgment upon the previous life of the defendant. Robinson against E. B. Gould and others, proponents. From an order denying probate to the will, proponents appeal. Reversed. See, also, 181 Cal. 11, 183 Pac. 146. Frank Freeman, of Willows, and Walter Drobisch, of San Francisco, for appellants. Joseph A. Brown and Elmer E. Robinson, both of San Francisco, for respondent. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes sented by the record is unique in several respects; among others, the will was written by the testator himself on the last day of the trial of a divorce suit between the testator and his wife, and immediately after the court had announced its conclusion as to the terms of the interlocutory decree, wherein the wife was awarded alimony and certain portions of the property. The testator had participated in the trial, testified as a witness, and had been under the observation of court attachés, witnesses, and attorneys during the trial, and we consequently have a very accurate picture of his mentality at that time, and in view of his sudden death from a rupture of an aneurism of the aorta nine days after the will was executed and the autopsy performed immediately thereafter, we have the medical reports concerning the condition of the brain itself. WILBUR, J. This is an appeal by the [puted evidence. It appears from the testiproponents of a will from an order denying mony without contradiction that in 1914 probate to that will after a trial of a will the testator had suffered from a stroke of contest before a jury and a verdict against apoplexy, from which he quickly recovered the validity of the will. The only ground of without any very notable physical evidences contest was unsoundness of mind. The will of such a stroke, except a slight change in was dated January 17, 1918. The testator his facial expression and a slight interferdied January 26, 1918. The situation pre-ence with his walking. There was some change in his mental characteristics. He was more irritable after the stroke than he had been before. He was not strong, and tired more easily. He had separated from his wife eight times before the stroke, and finally separated from her in 1911. His daughter Doris used to come to his office for checks to pay the monthly bills of the household, and on such occasions he was sometimes greatly irritated by the amount of the bills. It is said that this was unusual for him. The stroke of apoplexy was evidence of arterial sclerosis, which continued until the time of his death. The aneurism of the aorta was also evidence of the hardening of the arteries, and the post mortem examination confirmed the fact that the testator was suffering from hardening of the arteries. He was also suffering from high blood pressure at the time of the execution of the will, and this continued up to and caused his death, by the rupture of the aorta, which was already weakened by an aneurism. During the trial of the divorce action on January 17th, the testator became weak and enfee bled, and as an excuse for a temporary respite he stated his condition, and this statement was taken down by the court reporter. The evidence shows clearly that the testator was not suffering from any delusions or hallucinations of any sort. Neither was he suffering from general insanity or dementia, but it was claimed that he was in such a condition, owing to the hardening of the arteries and blood vessels within the brain The testator had four adult children, three itself, and by reason of the high blood presby a former wife and one, Doris Robinson, sure, that under circumstances of intense the contestant, a daughter by the wife who emotion his brain would not function norhad secured an interlocutory decree of di-mally. From the physical manifestations vorce on the day the will was executed. The on the 17th of January it is deduced that the will in question is in the following words testator was acting under intense emotion, and figures, to wit: and therefore was in an abnormal mental state. Under these circumstances a will is drawn wherein his beloved daughter is shut The testator was a practicing lawyer of high standing. He continued the practice of the law up to the time of his sudden death, and at that time and for many years he had been the United States SurveyorGeneral for California, regularly attending to the duties of that office. Some 31 witnesses, business associates of high standing, testified in favor of the proponents of the will that in their opinion the testator at all times was of perfectly sound mind. No business associate or intimate acquaintance testified that in his opinion the testator was of unsound mind. "San Francisco, January 17, 1918. "This is my last will and testament. "I hereby revoke all wills heretofore made off with a dollar. And this adnormal act by me. "To my wife I leave $1-. "To my daughter Doris I leave one dollar. "All the rest and residue of my estate I leave to my three children by my first wife E. B. Gould, A. N. Gould and Gladys V. Gould. "Written entirely by my own hand and thus dated and signed. F. H. Gould." The contestant relies upon the testimony of two medical experts, Dr. J. D. Ball and Dr. H. C. McClenahan, whose testimony was elicited by answers to hypothetical questions predicated in part upon the uncontradicted evidence in the case and in part upon dis it is thought is the result of the abnormal functioning of the brain at that time. So that we have, it is claimed, a case of temporary insanity, we might almost say flashes of insanity accompanying flashes of emotion, or, perhaps more accurately, periods of insanity coextensive with periods of intense emotion. A consideration of the hypothetical question upon which this conclusion is based will show that it is utterly valueless as applied to the facts of the case, because the facts assumed in the question are in conflict with the undisputed facts, and indeed inconsist (205 P.) ent with others therein stated, and hence the man described in the hypothetical case is not the testator. The question covers 18 pages of the transcript, and is too long to be quoted in full, and for that reason we point out its defects. The question assumes: "That he was very fond of Doris, the contestant in this trial, down to the time of his death. * * It is reiterated: "That this affection between the father and daughter continued and was very great up to the time of his death." (Italics ours.) The testimony of the daughter is that he told her that if she testified falsely in the divorce action she would never be anything to him thereafter. She did testify falsely as he believed in favor of his wife, her mother, and contestant testified that he never spoke to her as he left the courtroom, and no communication was held thereafter between them. The evidence on this subject will be discussed more fully later in this opinion. [1] The question further assumes "that his memory was very poor after his stroke; that he could not remember anything; that he made the promise or appointment; that his memory was very poor after his stroke; that he could not remember anything; that he could not remember names; that he forgot appointments; * that his memory was poor; that on occasions in 1916 and 1917 he failed to recognize old acquaintances on meeting them, although apparently looking directly at them; that he frequently forgot his money. *" (Italics ours.) The question thus assumes that the testator could not remember anything, in which case he would, of course, be of unsound mind, and no expert would have been needed to so declare. If it be said that the question as a whole could not be so construed, it is true, for it is elsewhere assumed in the question: "That Mr. Gould was a lawyer by profession, and that during most of the time mentioned was actively engaged in practicing that profession, and tried lawsuits in court almost to the day before his death; that he had attained considerable success as a lawyer, and was politically prominent for many years, having twice been speaker of the assembly at or about 1893 and having been State Building and Loan Commissioner in 1895 and 1896 and since 1914 to the time of his death having been United States Surveyor General for California, and actually performing his duties as such to the day of his death." (Italics ours.) It would be difficult to conceive of a lawyer without any memory trying a lawsuit. We cannot therefore tell which of these two inconsistent views of the facts the expert adopted in making his answers, or what standard of intelligence and memory be tween the two extremes he adopted in his answer to the hypothetical question. [2] The man presented to the experts by means of the hypothetical question is one who, loving and adoring one child and despising the others, impulsively, without other reason than sudden emotion, leaves all his property to his despised children and disinherits his adored one; while the evidence shows that the testator not only had adequate provocation by reason of his daughter's testimony for a cooling of his affection, but also that a definite change in property relations growing out of the settlement and interlocutory decree in the divorce case had occurred, whereby the mother was awarded a substantial part of his property, which the contestant would naturally inherit from her. The defects in this question by reason of the omission of the occasion and results of the daughter's testimony in the divorce case will be made more manifest by a further statement of the facts shown by the record. The contestant stated as follows: "Yes, sir; just before I started to testify, he said, I would suffer my right arm to be cut off before I would let my daughter go on the stand.' * During her examination as a witness in the divorce case the reporter's transcript shows the following occurrence: be dissuaded from performing my duty. "Mr. Savage (the wife's attorney): I won't "The Court: What is the difficulty? "Mr. Savage: I am examining this witness, and I don't like to have somebody sitting opposite me and telling me it is a damned shame to ask these questions. "The Court: I did not hear that. "Mr. Gould: I said it was too bad to put those words in this girl's mouth. "The Court: I did not hear that language. If I had, I should have acted severely. "Mr. Gould: I realize it. "The Court: I think it is a shame that the young lady is called as a witness at all. "Mr. Gould: I do too. I would cut my hand off before I would do such a thing. "The Court: I think there is no necessity for it, but, having done so, there is no use talking about it now. "Mr. Gould: Please stop it. "The Court: I cannot stop it now. I never called this witness. I have done my best to have you folks arrange your troubles so there would be no necessity for that which I knew would come. Proceed, counsel, your question is leading. * *" (Italics ours.) * Just before this occurrence the daughter had testified that her father had knocked her mother down, and that on another occasion he had knocked her against the washstand. Her testimony was obviously colored to favor her mother and discredit her father. She testified in the divorce case that she had been compelled to stay out of school because she did not have proper clothing, and on cross-examination she was asked if she had as much clothing as she thought she ought to have, and replied, "Not as many as anybody thought I ought to have." She the daughter "would come around some day was then asked the following questions and answered as follows: and tell him how much she loved him, and did not want to testify in the divorce action, and that her mother compelled her to, and that he poorly would forgive her, and he said: 'It will take a great deal of explaining to set her straight A. I was with me. But I didn't leave her out as a matter of punishment. I am not angry with her; "Q. Everybody thought you were dressed? A. I was poorly dressed. "Q. You were poorly dressed? poorly dressed. "Q. Everybody thought so? A. I didn't ask I am just terribly grieved that she had so their opinion." The obvious effort of the witness was to convince the judge that she was so shabbily dressed, because of her father's niggardliness that she was compelled to stay out of school. On the trial of this will contest, less than a year and a half later, she testified that she had stayed out of school without her father's consent and had lied to him about it; that the reason she stayed out of school was because she was humiliated by the references of her schoolmates to the then pending divorce case between her father and mother, and that when she finally told her father of this he consented that she remain away from school and take private music lessons instead. She further stated that the reason she did not give this testi mony in the divorce case was because her father already knew it. She was question ed and answered as follows: "Q. Why didn't you say it at that time? A. He knew when he gave me permission. "Q. Why didn't you say it? A. He was there, and he knew when he gave me permission. * "Q. Was it harder for you to testify from the stand that he had given you permission to stay out of school than to testify that he hadn't furnished you the money with which to go to school? A. No; that was why I quit. That was one reason, and then on account of the divorce; that is another reason; and he knew how I felt about it, and he cried and felt bad for me. little sense of honor that she could go on the stand and perjure herself as she did; but that is not the idea. In the settlement with her mother I gave the mother the home and its contents, besides other consideration, and I, of course, expect the home eventually to go to Doris, and that will be her portion of the estate, in my opinion."" He added: "Doris was a disappointment to him; that Ishe was not honorable." that in September, 1916, the testator said he O. L. Evarts, an attorney at law, testified had made a liberal offer of settlement to his wife, and that he was taking into consideration in making the offer "that he believed his wife would look out for the property he was turning over to her, which he considered about half, and if she looked out for it his children by her would finally get the property." That the day the interlocutory decree of divorce was entered the witness talked with testator, and— "he said he had given to his wife more property than he thought necessary, and had done better by her; that he had children by his first wife, and his second wife, and believed the second wife would look out for the children of that marriage, and that they would finally get the property, and he was perfectly satisfied with the settlement with the idea that these children of the second wife would get the property finally. "He seemed to be well satisfied that the matter was finally adjusted, and discussed some of the conditions of the agreement, but these paid his wife $5,000 partly in money and part I do not remember, except one that was he some obligation, and was to pay her $75 or $100 a month." Is it to be wondered at that a sane man who had cried and felt bad when his daughter had left school because she was humiliat-in ed by an action for divorce between her father and mother should bitterly resent that daughter testifying in the trial of that divorce action that she had stayed out of school because he was so stingy that he would not furnish her clothing to wear there? The significance of this evidence lies in the fact that the medical experts testifying for contestant based their conclusion almost entirely upon the assumption that there was no change in the affection of the father for the daughter, and no reason for such change or for a will disinheriting his favored child. We are not left to mere inference in seeking the cause for his will. The Sunday (January 20th) before he died he told Mrs. Beck, an intimate acquaintance, that he had left Doris out of his will. To this the witness replied that Dr. J. D. Ball was asked as to the effect upon his opinion if the testator subsequently calmly and understandingly discussed the terms of the will, and allowed it to stand and was questioned and replied as follows: "A. If he had discussed it rationally and inremembrance of what he had done and took telligently and without emotion and had a into consideration all of the facts of his association with the various members of the family, it would be different." It is clear from the record that the medical experts in expressing an opinion relied very largely upon the implied assumption in the hypothetical question that there was no sane or logical reason for a change of attitude on the part of the father toward the |