Allender

The defendant has been convicted of the crime of murder in the first degree, and the penalty of death affixed. He appeals from the judgment upon the single ground that the court committed error in instructing the jury as to the law in two certain particulars.

The most serious objection of defendant is taken to the action of the trial judge in giving an instruction bearing upon the question of insanity. As to insanity the jury were told that the burden rested upon the defendant of proving his insanity by a preponderance of evidence. The principle of law thus declared is in full accord with the law of this state. For a period of thirty-five years this court has repeatedly and uniformly so ' declared the law to be. The cases to that effect are numbered by the score. We find the doctrine first announced in People v. Myers, 20 Cal. 518 , and we find this court in the recent case of People v. Bemmerly, 98 Cal. 299 , saying that the question is no longer an open one in this state. The law here declared by the trial court is also in line with the decisions of the courts of England, and also in accord with the views of the highest courts of more than one-half of the states of this Union.…