West

A rehearing in these cases was granted by this court and, upon further consideration, we have concluded that the judgment should be reversed and a new trial granted.

The defendants were convicted in the superior court of the crime of murder in the second degree and sentenced to the penitentiary for life. At the time of the homicide, November 28, 1913, they were inmates and patients at the Mendocino state hospital for the insane and deceased, at the time of his death, was also an inmate and. patient of said institution. Before the trial the defendants regularly moved the court that the question of their present sanity be submitted to a jury as provided by section 1368 of the Penal Code. The court denied the motion and in this we think prejudicial error was committed.

In support of said motion the defendants introduced and read the affidavit of one of their counsel, Mr. Hale McCowen, Jr. From this affidavit it appeared that, at the time of the homicide, the defendants were confined in the hospital as insane persons and were being treated as such and that neither had been discharged as cured or at all; that the defendant Peoples had been sent to the hospital upon the certificates…