Roberts

Defendant was found guilty of murder. The crime was a filicide. That defendant shot his son to death was undisputed. Under his plea of not guilty the sole defense was that his action in firing the fatal shots was committed in self-defense. He also entered a plea of not guilty by reason of insanity. He appeals from the judgment and from an order of the trial court denying his motion for a new trial. It was the theory of the defense that appellant, on the day of the killing and pursuant to previous engagement, walked into the business office of his son at a time when the latter *Page 378 was using his telephone, that the son then, without relinquishing his hold on the telephone receiver, pointed an automatic pistol at his father and pulled the trigger, but that the weapon snapped and was not discharged, and that appellant then shot his son down. The first contention made by appellant is that the trial court erroneously denied him the right to introduce evidence showing a feeling of animosity toward him by his son, persisting continuously and for a long time before the day of the shooting. It is said that this evidence, if permitted, would have sustained the theory that the son…

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…

We concur in the order denying a rehearing, but we adhere to the views expressed in our concurring opinion heretofore rendered. A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on May 25, 1933. *Page 393