Marceau

I dissent from the order of the court denying a rehearing.

It is assumed in the opinion of Mr. Justice Garoutte, as it has been in the argument of counsel, that the same test is to be applied in determining whether the death of Fiske was caused by an injury intentionally inflicted within the meaning of this policy, as is applied to the plea of insanity in a criminal case. Accepting this proposition as embodying a correct statement of the law, it follows that unless the slayer of Fiske was of such unsound mind at the time of the killing as not to know the nature and quality of the act, or, in other words, so insane as not to know that it was wrong and criminal, then the injury was purposely inflicted notwithstanding the slayer may have been impelled to the act by an insane impulse which he had not the power to resist. For such is undoubtedly the law of this state as established by numerous decisions in criminal cases.

This being so, it could not fail to prejudice the defendant to allow evidence to go to the jury, over its objection, to the effect that there is a kind of insanity which our law does not recognize as an excuse for crimi *348 nal acts. Such testimony was wholly…

The plaintiff and respondent, Mrs. Marcean, was the wife of John D. Fiske, of Fresno. In July, 1890, Fiske was shot to death by one Stillman, who was subsequently convicted of the crime, and sentenced to imprisonment for life. At the time of Fiske’s death he was carrying a life insurance policy for the *341 sum of ten thousand dollars in the Travelers’ Insurance Company, and this action is brought to recover from such company the amount of the policy. The policy contained a clause declaring it invalid if death resulted from “intentional injuries inflicted by the insured or any other person.” And while the death of Fiske is not questioned by the defendant, it is claimed that his death resulted from causes that bring it within the prohibition of the clause of the policy we have just quoted, and that consequently plaintiff is not entitled to recover.

It is contended upon the part of plaintiff that Stillman was insane at the time he committed the homicide, and consequently the injuries resulting in the death of Fiske were not “intentional injuries,” within the meaning of the policy. It is conceded by opposing counsel that if Stillman was insane at the time he fired the fatal shot the…